Part 9 Restoration to the register, the legislation
If the company has been dissolved and not administratively restored an interested party may apply to the court for its restoration to the register [Note 1]. A company may be restored to enable it to be wound up ( see paragraph 38.8), to take enforcement action in connection with prosecution or disqualification proceedings (see paragraph 38.32), to take action in relation to any misfeasance (see paragraph 38.32), to enable assets to be realised (see paragraph 38.20) or to enable an action to be brought for damages arising from personal injury or death (see paragraph 38.51).
An application can be made to the court to restore a company dissolved after winding up (see paragraph 38.44) [Note 2], dissolved after administration [Note 3], or dissolved after being struck off the register voluntarily (see paragraph 38.4) or by the registrar (see paragraph 38.3) [Note 4].
An application pursuant to Section 1029 of the Companies Act 2006 may be made by;
(Amended April 2010)
An application to restore the company to the register may be made at any time for the purpose of bringing proceedings in respect of damages for personal injury [Note 8]. In any other case except in the instances mentioned below, an application for restoration may not be made after the end of a period of 6 years from the date of dissolution [Note 9].
An application for restoration cannot be made in respect of a company dissolved before 1 October 2007 [Note 10] unless the company was struck off under the provisions of section 652 or 652A of the Companies Act 1985 (the repealed sections are reprinted in Annex 4). In this instance an application can be made up to 1 October 2015 or the expiration of the period of 20 years from publication in the Gazette of notice under the relevant section or Article, whichever occurs first [Note 11].
The 6 year limitation does not apply where a non-trading company was struck off by the registrar (see paragraph 38.3) and an application for administrative restoration was made but refused within the time limits allowed (see paragraph 38.4) [Note 12]. In such circumstances an application could be made to restore the company within 28 days of the notice of the registrar's decision being issued, even if the 6 year limitation period has expired [Note 13]. .
Where the registrar has struck a non-trading company off the register the court may order its restoration on the following grounds:
1. it was carrying on business or in operation at the time, or
2. it was struck off the register voluntarily and had engaged in any activity not associated with the application [Note 14], or
3. any proceedings had not been concluded [Note 15], or
4. notice of the application had not been properly sent to all parties [Note 16], or
5. the company had grounds to withdraw the application [Note 17],or
6. the court considers it just to do so [Note 18].
The restoration of the company takes effect from the date a copy of the court order is delivered to the registrar. On receiving a copy of the order restoring the company, the registrar must publish notice in the Gazette [Note 19]. The notice must contain the name of the company, or if the company is restored under a different name (see paragraph 38.89), that name and its former name, the registered number of the company and the date restoration took effect [Note 20].
Once a company has been restored to the register it is deemed to have continued in existence as if it had not been dissolved or struck off the register. The company is not liable for any civil penalty for failing to deliver returns or accounts for a financial year ending after the date of dissolution or striking off and before the restoration to its register. The court may give such directions for placing the company and all other persons in the same position (as far as possible) as if the company had not been dissolved or struck off. This provision can be used to include the provision that the period between dissolution and restoration shall not be counted for the purpose of any statute of limitations [Note 21]. The court may also order that all outstanding returns, accounts, etc. are filed with the registrar, that the applicant pays the registrar costs, and that the applicant pays the costs of The Treasury Solicitor (BV), or the relevant Duchy Solicitor, for dealing with any property vested as bona vacantia and dealing with the application [Note 22].
A company will be restored to the register with its original name unless another company with the same name has been registered [Note 23]. If another company with the same name is registered, the company must be restored under another name specified in either the application, in the case of administrative restoration, or in the court order, or as if the registration number was also its name [Note 24].
If the company is restored to the register by administrative application or court order the provisions relating to the registration and issue of a new certificate of incorporation [Note 25] and the effect of a change of name [Note 26] apply as if the application or court order were notice of a change of name [Note 27].
If the company is restored to the register as if its registered number was also its name it must change its name within 14 days of being restored. The change of name may be made by directors’ resolution, without prejudice to any other method, and notice must be given to the registrar. The notice of the change of name ensures the provisions relating to the registration and issue of a new certificate of incorporation and the effect of a change of name apply. If the company fails to change its name or notify the registrar, the company and every officer who is in default commits a criminal offence. Any person summarily convicted of this offence is liable to a fine [Note 28]. The official receiver should not apply for the restoration of the company under its registered number, (see paragraphs 38.91 and 38.92) for details on how to proceed.
The Treasury Solicitor (BV) or the relevant Duchy Solicitor can dispose of any property, right or interest vested in him/her despite the fact that the company may be restored to the register. If the company is restored it does not affect the disposition. However, The Treasury Solicitor (BV) or the relevant Duchy Solicitor shall pay to the company the amount of any consideration received or the value of such consideration at the time of disposition. If no consideration has been received The Treasury Solicitor (BV) or the relevant Duchy Solicitor must pay an amount equal to the value of the property, right or interest disposed of. The Treasury Solicitor (BV) or the relevant Duchy Solicitor may deduct the reasonable costs of the disposition unless they have already been paid as a result of the application for administrative restoration or as a result of a court order [Note 29].