Following on from my previous article on administrative restoration, in this article I will look at the other side of the coin; restoration of a company by court order.
It is not always possible to restore a company by administrative restoration; indeed it is the least common method of restoration. This is because it can only be used to restore a company where the company has been dissolved pursuant to s1000 or s1001 Companies Act 2006. If a company has been dissolved in any other scenario, restoration by court order is the only option. Therefore, if you wish to restore a company that has been wound up by order of the court or voluntarily dissolved by its shareholders, then restoration by court order would be the correct approach.
Reasons for restoring a company
You may wish to restore a company for many reasons. The two most common are to recover assets belonging to the company, or to revive the company so that it may become the target of legal proceedings. Sometimes there is even a desire for the company just to resume trading. It is important to understand exactly why you want to restore the company as this will reflect how the restoration will progress.
The process
While the restoration of a company by court order is not a simple process, it doesn’t need to be controversial. Court restorations are pursued by way of a Part 8 claim as there is a presumption that there will be little opposition to the restoration. Once the claim is issued, the party seeking the restoration will need to serve the proceedings on both the Registrar of Companies and the Government Legal Department (who act for the Registrar). This will give the Registrar the opportunity to consent to the restoration of the company. 9 times out of 10, that is exactly what they will do.
Undertakings
However, there is usually a price for the Registrar’s consent, which will take the form of undertakings (a form of legal promise) that the Applicant will need to provide to the court. These undertakings will be directly related to why the applicant wishes to restore the company. (For example, if the company is to be restored to a trading company, then the undertaking will usually include a requirement to file accounts and returns along with any late filing fines.) The undertakings will also always contain a promise to pay the Registrar of Company’s costs. These will usually be a fixed fee of a few hundred pounds.
If the Registrar of Companies does consent, then the process from that point is relatively straightforward. The Government Legal Department will produce the necessary proof confirming that the Crown has no interest in the property of the company (known as a Bona Vacantia letter). Then, once they have received signed undertakings from the applicants, the Government Legal Department will produce a consent order to be submitted to the court.
Complications can arise however where the Registrar of Companies or HMRC does not consent to the restoration of a company. This situation is relatively rare but can arise where, for example, the Crown has taken possession of a dissolved company’s property.
Our solicitors can help you restore a company by whichever means is appropriate. Call us today on 0800 988 7756.
