Company Restoration Guide

Question

Accepted Answer

Introduction

If after reading this booklet you are unsure how to proceed, you should either:

consult a solicitor The Law Society has a ‘find a solicitor’ facility on its website
contact the Citizens Advice Bureau
contact Community Legal Advice on 0845 0345 4345

This booklet does not deal in any great detail with administrative restoration under

Sections 1024 – 1028 of the Companies Act 2006

Details of this procedure are set out in Companies House guidance booklet GP4 Strike-off, Dissolution and Restoration, which can be found at:

http://www.companieshouse.gov.uk/about/gbhtml/gp4.shtml

The Treasury Solicitor is unable to offer any advice or guidance over and above what is set out in this booklet.

Process to restore a company name to the Register of Companies

Flowchart diagram: process to restore a company name to the Register of Companies

PDF, 121 KB, 1 page

1. Who makes the application

See Section 1029 of the Companies Act 2006

An application to the court to restore the name of a company to the Register of Companies can be made by one of:

the Secretary of State
any former director of the company
any person having an interest in land in which the company had a superior or derivative interest
any person having an interest in land or other property:
- that was subject to rights vested in the company
- that was benefited by obligations owed by the company
any person who but for the company’s dissolution would have been in a contractual relationship with it
any person with a potential legal claim against the company
any manager or trustee of a pension fund established for the benefit of employees of the company
any former member of the company (or the personal representatives of such a person)
any person who was a creditor of the company at the time of its striking off or dissolution
any former liquidator of the company
where the company was struck off the register under section 1003 (voluntary striking off), any person of a description specified by regulations under section 1006(1)(f) or 1007(2)(f) (persons entitled to notice of application for voluntary striking off), or by any other person appearing to the court to have an interest in the matter

Except in the case of a personal injury claim the application for restoration must be made within six years of the date of dissolution of the company.

For the purposes of bringing a claim for damages for personal injury an application for restoration can be made at any time.

If a company was struck off under section 652 or 652A of the Companies Act 1985 an application may be made at any time before:

1 October 2015 (six years after commencement of these provisions of the Companies Act 2006)
the expiration of the period of 20 years from publication in the London Gazette of notice under the relevant section whichever occurs first.

The repeal of Sections 651 and 653 of the companies Act 1985 does not affect any application made under those sections before 1 October 2009.

2. In which court can the application be issued?

To find out which court has jurisdiction to deal with the application you need to check the registered office of the company at the time it was dissolved and the County Court which has bankruptcy jurisdiction over that address.

The Central London County Court in London has jurisdiction to deal with the application regardless of where the registered office was situated.

The Bankruptcy and Restoration Court
Central London County Court
Thomas More Building
The Royal Courts of Justice
The Strand
London WC2A 2LL

Certain, but not all District Registries have Chancery jurisdiction and so can deal with all restoration applications. The District Registries that have this jurisdiction are Birmingham, Bristol, Caernarfon, Cardiff, Leeds, Liverpool, Manchester, Mold, Newcastle-upon-Tyne and Preston. Like the High Court these District Registries have jurisdiction to deal with the application regardless of the situation of the registered office.

Certain County Courts can deal with restoration applications provided that:

the registered office of the company is within its jurisdiction;
the issued share capital of the company does not exceed £120,000; and
the Court has not been excluded from having winding up jurisdiction.

The index, which shows the County Court for a particular area, can be found at:

https://www.find-court-tribunal.service.gov.uk/

The index also shows whether a County Court has winding up jurisdiction by using the work type ”Bankruptcy” in the “about your issue” box.

If your local County Court does not have winding up (Bankruptcy) jurisdiction it will be attached to another County Court in the area which has the necessary jurisdiction. This will be shown in the Court search results.

3. How do I make the application?

The application is made by completing a Claim Form, a draft of the text of which can be found at Appendix A, under Part 8 of the Civil Procedure Rules 1998. A draft can be found at http://www.justice.gov.uk/forms where you would search for the ‘Form/leaflet number’ N208. This is the standard form that begins the proceedings and should be sent to the relevant Court (see 2 above) for issue. The Court fee for issuing the Claim Form is currently £280 and the remittance should be made payable to HMCTS (Her Majesty’s Courts and Tribunals Service).

4. What evidence will I need?

You will need to file a Witness Statement with the Court. An outline Witness Statement can be found at Appendix B, in support of the Claim Form. A copy must also be sent to the Registrar of Companies once the proceedings are issued by the Court.

The Witness Statement should contain:

the reason why the claimant has the right to make the application and under which sub-section of section 1029 of the Companies Act 2006;
the date of incorporation of the Company and under which Act, the Certificate of Incorporation should be exhibited;
the address of the registered office of the Company;
the basic objects of the Company, the Memorandum and Articles of Association should be exhibited;
the share capital of the Company, both authorised and issued, and, if a member makes the application, the number of shares held by that member. The names of the officers, (director(s) and secretary) of the company;
a full explanation of the circumstances in which and the reasons why the name of the Company was struck off the Register of Companies;
any factors arising with regard to the time limits in S1030 of the Act;
the date on which the Registrar of Companies struck the name of the Company off the Register and the date on which notice thereof was published by him in the “London Gazette”;
where the claimant is a director or member of the company, the financial position of the company at the time of its dissolution and (if different) its financial position at the time it is restored;
that the sole reason for seeking restoration is to recover the funds in a company bank account, transfer a property registered in the name of the company etc. and what is intended for the company and its assets and liabilities when restored; and
any other information that explains the reason for the application and to the future of the company if restored.

Please see the Companies Court Practice Note issued on 12 November 2012 attached to this Guidance Note for confirmation of what evidence the Court requires.

5. How do I issue the claim form?

Send three copies of the Claim Form, the supporting evidence with an original signature and the Court fee to the Court.

Remember to keep copies of all the documents.

6. How do I serve the claim form and supporting evidence?

A copy of the Claim Form bearing an original Court seal and supporting evidence must be served on:

The Registrar of Companies
Restoration Section
Companies House
Crown Way
Cardiff CF14 3UZ
DX: 33050 Cardiff
Fax: 029 2038 0006

The Treasury Solicitor
The Government Legal Department
102 Petty France
London SW1H 9GL
DX: 123243 Westminster 12
Fax: 020 7210 3119

If the registered office of the company was in Lancashire or Cornwall the Claim Form and supporting evidence must also be served on the Solicitor to the Duchy of Lancaster / Duke of Cornwall:

Messrs Farrer & Co
66 Lincoln’s Inn Fields
London WC2A 3LH
DX: 32 Chancery Lane
Tel: 020 3375 7000
Fax: 020 3375 7001

The Government Legal Department will accept service by e-mail at newproceedings@governmentlegal.gov.uk for the attention of the Companies Team.

The Registrar of Companies and Messrs Farrer & Co will all accept service by post; recorded delivery is recommended. The Registrar will also accept delivery by hand during normal office hours at Companies House, Cardiff.

The Treasury Solicitor or the Solicitor for the Duchy of Lancaster / Duke of Cornwall will write to you stating that no objection will be raised by the Crown to the order being made. The Solicitor for the Duchy of Lancaster/Duke of Cornwall will require a fee for this letter which you will need to clarify with them.

Please Note: the evidence in support of the claim and either:

(if the matter is being dealt with in the Central London County Court in London) the waiver letter from the Treasury Solicitor, Duchy of Lancaster / Duke of Cornwall; or
evidence exhibiting that letter (if the matter is being dealt with in any other court) must be filed with the Court as soon as possible and no later than two clear working days before the hearing. See the Practice Note at Appendix D for Companies Court procedure.

7. Who can attend the hearing?

You may attend in person or be represented by an advocate.

Courts have indicated that accountants do not have a right of audience in matters of this nature. The County Court at Central London has adopted a practice of attempting where possible to deal with these cases by consent without a formal hearing, see the new Practice Note issued on 12 November 2012 at Appendix D. Some District Registries and County Courts adopt a similar practice.

The Central London County Court in London has indicated that it will grant one adjournment and then if the matter is not dealt with in advance of or at the adjourned hearing, the application will be dismissed.

Most if not all hearings should if possible be dealt with remotely and/or on the basis of the papers filed with the Court.

8. Are there any costs or penalties?

The costs of the Registrar of Companies, who is represented by The Government Legal Department, are normally met by the Claimant. These costs will usually be in the region of £300. The company may also have to pay the statutory penalty for late filing for any accounts delivered outside the period allowed by the Companies Act. Where penalties are applicable the Registrar will send a penalty notice to the Company’s registered office once the company has been restored to the Register. For further information please refer to the guidance notes on Companies House website: www.companieshouse.gov.uk.

9. What happens when the order has been made?

An office copy of the Order, with an original Court seal (stamp), must be delivered to the Registrar by the Claimant. It is recommended that the order be sent by recorded delivery or delivered by hand, see section 6 above. A company is regarded as being restored when the order is delivered to the Registrar. The company is then regarded as having continued in existence as if it had not been struck off and dissolved.

If an Order is made without the consent of the Registrar of Companies or is in a form that she is unable to accept, she may instruct the Government Legal Department to apply to set it aside, or agree that an Order be made in its place which she is able to accept.

10. Recovery of company funds

To recover any Company funds which may have passed to the Crown on dissolution you should contact either the Treasury Solicitor Bona Vacantia Division:

Government Legal Department (BVD)
PO Box 2119
Croydon
CR90 9QU
Switchboard
020 7210 4700

Email bvcbt@governmentlegal.gov.uk

or if the registered office of the Company was in Lancashire or Cornwall:

Messrs Farrer & Co.
66 Lincolns Inn Fields
London WC2A 3LH
DX: 32 Chancery Lane
Tel: 020 3375 7000
Fax: 020 3375 7001

The Government Legal Department’s Department Bona Vacantia Division’s guidelines on repaying funds can be found at:

https://www.gov.uk/apply-for-a-repayment-after-a-company-has-been-restored-to-the-register-cb4

11. Useful addresses

Details of a person’s employment history can be obtained from:

Employers' Liability Tracing Office, a Company Limited by Guarantee
Linford Wood House
6-12 Capital Drive
Milton Keynes
MK14 6XT

There is an online search facility at the Employer’s Liability Tracing Office (ELTO):

http://www.elto.org.uk/

Details of a person’s employment history can be obtained from:

HM Revenue & Customs
National Insurance Contributions Office
SSA BP1002A
Benton Park View
Newcastle upon Tyne NE981ZZ

12. Forms and guidance

N208 Claim Form

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=424

N208A Notes for Claimant

http://hmctsformfinder.justice.gov.uk/HMCTS/GetLeaflet.do?court_leaflets_id=431

N208C Notes for Defendant

http://hmctsformfinder.justice.gov.uk/HMCTS/GetLeaflet.do?court_leaflets_id=434

N210 Acknowledgment of Service

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=437

13. Useful web sites

Companies House

Government Legal Department

Government Legal Department Bona Vacantia Division

Messrs Farrer & Co