Although it is unusual to encounter requests to restore a dissolved company, it is worth knowing how to do this if the occasion should arise. In a recent case, our client asked us to restore a dissolved company in connection with their wish to pursue an unresolved claim.
There are two ways to restore a dissolved company. The first is administrative and applies to the company itself e.g. they have failed to file a document on time and have been struck off and now wish to correct that. The second is restoration by a Court Order.
Restoration by Court Order is available in a number of circumstances for a wide range of applicants. Broadly speaking, it is available to those who have a legal claim against the dissolved company, those who were a creditor of the company at the time of the company’s striking off or dissolution and those who, but for the company’s dissolution, would have been in a contractual relationship with the company.
The court can restore any company to the register that meets one of the three following conditions:
- The company has been dissolved under Chapter 9 of Part 4 of the Insolvency Act 1986 (IA 1986) (dissolution of company after winding up).
- The company is deemed to have been dissolved under paragraph 84(6) of Schedule B1 to the IA 1986 (dissolution of company following administration).
- The company Has been struck off the register under section 1000 or 1001 (power of registrar to strike off defunct company) or under section 1003 (voluntary striking off), whether or not the company has in consequence been dissolved.
The procedure for applying to the court is fairly straightforward but there are a number of requirements that need to be met.
- A part 8 claim form is required and should be accompanied by a witness statement (and exhibit) setting out the full details of the company, including but not limited to its registered address, nominal capital and the number of shares issues, and explaining why the company was struck off the register and why its restoration is sought.
- The claim can be issued in the Companies Court in London regardless of where the registered office may be (or may have been) situated.
- The claim form and witness statement should be filed at court in the usual way, accompanied by the court fee.
- The claim form and witness statement are served on both the Registrar of Companies and the Treasury Solicitor. Here it is important to ensure safe receipt of the documentation by the Registrar of Companies. The Treasury Solicitor relies on the instructions of the Registrar of Companies even though they receive a copy of the documentation themselves, so it is important to ensure that the application reaches the Registrar of Companies and is dealt with and passed to the Treasury Solicitor, otherwise the application may be unnecessarily delayed.
- Once the claim form and witness statement have made their way from the Registrar of Companies to the Treasury Solicitor, the Treasury Solicitor will advise the requirements of the Registrar of Companies. The Treasury Solicitor may require a witness statement and/or request further documentation so as to understand the basis of the application. Various undertakings will also be required.
- There is a fee for restoration along with the provision of signed undertakings.
- Providing all documentation is filed prior to the court date specified in the claim form, the hearing may be vacated if both sides agree that the matter can be dealt with without a hearing. Alternatively the Treasury Solicitor and the applicant may be required to attend the hearing to set out the basis of the application and the judge may make an appropriate order for restoration. A company is regarded as being restored when the order is delivered to the Registrar of Companies.
Although this is a fairly straightforward procedure, it is important to ensure all the requisite steps are followed to the letter to avoid unnecessary delays in restoring the company.