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Administrative Restoration
This is a procedure whereby companies may be restored to the register by the Registrar of Companies (Registrar) without an application to the Court. NOTE: This procedure is only available in certain limited circumstances.
Who can apply?
An application for administrative restoration can only be made by someone who was a:
- Director of the company; or
- Member of the company.
In practice the former director or former member must have been a director or member at the time the company was dissolved, even though the legislation does not specify this, as Companies House will not make changes to the Register details for the company and they would remain pending until the restoration is completed.
Basic Condition
A company can only be the subject of administrative restoration if it was struck off by the Registrar under sections 1000 or 1001 of the CA 2006 or under section 652 of the CA 1985. An application may be made whether or not the company has in consequence been dissolved.
Additional Conditions
Even if a company meets the basic condition, the Registrar cannot restore a company to the register unless all of the following conditions are met:
- The company was carrying on business or was otherwise in active operation at the time of its striking off.
- The Crown's representative, in cases involving any property or right of a company being vested in the Crown bona vacantia, consents, in writing to the Registrar, to the company's restoration to the register. The consent is referred to as a bona vacantia waiver letter.
- It is the applicant's responsibility to obtain the consent of the Crown's representative and to pay any costs demanded by the Crown's representative in respect of its dealing with the property during the period of dissolution or in connection with the administrative restoration application.
- The applicant delivers to the Registrar all of the documents that are required to bring the company's records kept with the Registrar up to date (for example, all overdue annual returns or accounts, including those for the years the company was dissolved).
- The applicant pays any penalties for failure to deliver all accounts that were outstanding at the date of the company's dissolution or striking off. In practice, the Registrar may accept an undertaking to pay instead of requiring payment upfront.
Administrative Procedure
To apply for administrative restoration, an applicant must send to the Registrar:
- The correct format of application form RT01
- A correctly drafted statement of compliance
- The required fee (currently set at £100)
Outcome
The Registrar will either:
- Grant the restoration and notify you of the decision, the restoration taking effect on the date that such notice is sent and also published in the London Gazette; or
- If the Registrar decides not to restore the company to the register, the applicant may apply to the Court for a restoration Order within 28 days of the Registrar's decision.
Recovering Money or Assets Held Bona Vacantia
What is ‘bona vacantia’ and what does it mean for me?
The term ‘bona vacantia’ is a legal term in Latin language which translates literally into English as “empty goods”.
In English law the term is applied to assets which appear to have no other person with a legal interest in, or ownership of, them. The 2 most common times when this applies is if a person dies without making a Will and has no known or traceable relatives to inherit or a private limited company has been dissolved while still holding assets.
In this context, assets which are held ‘bona vacantia’ and which formerly belonged to the company have to be applied for, post restoration, from the Crown, effectively HM Government, the Duchy of Lancaster, effectively Her Majesty the Queen or the Duke of Cornwall, effectively His Royal Highness the Prince of Wales. In practice, the Treasury Solicitor (part of the Government Legal Department) acts for the Crown as legal representatives and Farrer & Co. act as solicitors to the Duchy of Lancaster and the Duchy of Cornwall.
This is an additional process and the exact steps will depend upon the assets in question.
Effect of restoration where property has vested as bona vacantia
Section 1034 of the CA 2006 provides for the effect of restoration to the register where the company's property has vested as bona vacantia under section 1012 of the CA 2006.
Under section 1034(1) of the CA 2006, the person in whom any property or right is vested as bona vacantia may dispose of that property, or an interest in it, or right even though the company may be restored to the register.
If restoration takes place, it does not affect the disposition of the property, but the Crown is required to pay to the company an amount equal to:
- The amount of any consideration received for the property or right or interest in it.
- The value of such consideration at the time of the disposition.
- If no consideration was received, an amount equal to the value of the property, right or interest disposed of, as at the date of disposition.
The Crown may deduct from this amount its reasonable costs in connection with the disposition, unless they have been paid as a condition of restoration or pursuant to a court order.
Other impacts of company restoration
Will the company use its original name on restoration?
Ordinarily, the Registrar will restore the company to the register with the name it had before it was struck off. However, if at the date of restoration the company's former name is the same as another name on the Register's index of company names, the Registrar cannot restore the company with its former name. In this instance, a company must be restored to the register under another name specified by a Court Order or the administrative application. In practice this will temporarily be the company’s registration number.
A company which is restored to the register with the same name as its registered number must pass a resolution to change the name of the company within 14 days from the date of restoration. It is a criminal offence not to comply with this name change requirement.
Are there any other costs or penalties to consider?
Before a company can be restored to the register, it must pay, or undertake to pay, any statutory penalties for failing to file accounts or reports with the Registrar within the period allowed for filing which were due at the date of dissolution or striking off. The penalties that may be due are:
- Unpaid penalties outstanding on accounts delivered late before the company was dissolved.
- Penalties due for accounts delivered on restoration, if the accounts were overdue at the date the company was dissolved.
- The appropriate filing fee on submission of any outstanding documents.
What other common consequences might apply?
When ordering the restoration of a company to the register, the Court can give any directions or make any provisions as seems just for restoring the company and any other persons to the same position they would have been in had the company not been dissolved or struck off. For example, the Court may give directions as to:
- Whether time be deemed not to have run on claims of or against the restored company while it was dissolved.
- The delivery of documents to the Registrar to enable him to bring his records up to date.
- The payment of costs in connection with the proceedings for restoration.
- The payment of the Crown representative's costs incurred in connection with rights or property which vested in the Crown as bona vacantia.
- Where a creditor held security over a company's assets before it was dissolved and has not released it in the meantime, the security will remain valid.
What if my company was previously in an insolvency procedure before it was struck off or dissolved?
Where a company was in an insolvency procedure before it was struck off or dissolved, whether the Court will decide to place it back into that insolvency procedure on restoration will largely depend on whether or not:
- The insolvency procedure had formally concluded before the company was struck off or dissolved.
- The relevant insolvency practitioner had resigned or formally vacated office before the company was struck off or dissolved.
Can I place a restored company into liquidation?
Often the reason for restoring a company to the register will be so that it can then be placed into liquidation so that, for example:
- A party which has an unresolved claim against the company can take action against it to obtain compensation or redress.
- A party can claim a payment due to the company which it was unaware of when the company was dissolved.
- A liquidator can pursue claims such as preference or transaction at an undervalue claims.
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