Restoring a Company to the Register

There are two processes for restoring a company to the Register, either by Court Order or by ‘administrative restoration’ under section 1024 of the Companies Act 2006.

The appropriate route will be determined by a number of factors.

Restoring a company to the register by way of administrative restoration requires certain eligibility criteria to be met and as such, will not be possible in all circumstances. Where the fact pattern does not meet the administrative restoration criteria, a Court Order would need to be applied for.

 

Administrative restoration or Court Order?

 

Administrative restoration may be available where the business still trading.

Unless you dissolved your company voluntarily, the main reason for company dissolution is failure to file documents, which can lead to Companies’ House dissolving the company against your wishes. Unsurprisingly, the most common motivation for restoring a company to the register is to recommence trading, although you may also be seeking to do so as a way to realise assets for shareholders or pay off outstanding debts.

It is a common misconception that forming a new company with the same name as the dissolved entity is simply another way to achieve these aims. Unfortunately, this is not the case. The only way to access the assets of the dissolved company is to restore it to the register. Trading without having undertaken this process this is fraught with legal risk and is therefore seriously inadvisable.

 

Restoring a company to the register: where to start

 

The simplest way to restore your company is to apply to Companies House, but to be eligible to do so, you must have been a director or shareholder; the company must have been trading when it was dissolved; and it must have been struck off or dissolved by the Registrar of Companies within the last six years.

If these criteria are not met, you must seek a court order in order to restore the company. This is the case if you or another of the company’s officers dissolved it voluntarily.

 

Administrative restoration

 

For now, let’s start with the former scenario. Given that you meet the above criteria, the first step in restoring a company to the register is to complete an application for ‘administrative restoration’, which you are permitted to do under section 1024 of the Companies Act 2006. You will need to download and fill in an RT01 document, which you can find at GOV.UK. There is an associated fee of £100, payable to Companies House.

To restore a company to the register, its records have to be brought up to date. As such, the RT01 form stipulates that certain documents must be submitted alongside it. They include any outstanding:

 

a. accounts,

b. late filing penalties; and

c. annual returns with filing fees.

 

It is useful to know that a company is not liable for late filing penalties if the period allowed for filing the accounts/reports ended after the date of dissolution and before restoring the company to the register.

 

What is a Bona Vacantia waiver letter and when do I need one?

 

When a company is dissolved, assets such as property and cash automatically transfer to the Crown, or to the Duchy of Lancaster or to the Duke of Cornwall, as outlined in the Companies Act 2006.

If your company had assets when it was dissolved, you will need a waiver letter to pursue administrative restoration. This is, essentially, the Crown representative’s written consent.

 

How do I obtain a Bona Vacantia waiver letter?

 

If your company owned any kind of property in England and Wales, then you should apply to the Treasury Solicitor using the BVC14 Form V17, which you will find at GOV.UK. This is the case unless your company’s last registered address was in one of the following locations:

 

a. Cornwall;

b. Lancashire;

c. Merseyside or parts of Greater Manchester; or

d. Cheshire and Cumbria.

 

If it was then you will need to apply via Farrer and Co, which covers these jurisdictions.

Alternatively, if your company’s last registered address was in Scotland, you will require a waiver letter from the Queen’s and Lord Treasurer’s Remembrancer, Scotland. If your company’s last registered address was in Northern Ireland, the waiver letter will need to come from the Crown Solicitor’s Office, Northern Ireland.

The Treasury Solicitor will issue a Bona Vacantia waiver letter on receipt of the completed form and application costs of £64. It is a relatively straightforward process and the form is short and easy to complete. The waiver letter will not be sent to Companies House for you, however, but to the address provided on your form. This can be a postal or email address. Alternatively, you can request that the letter be faxed to you.

 

Administrative registration: when will my company be restored?

 

Once you have sent off your application, you should usually expect to wait around two weeks for a response. If successful, Companies House will let you know and restore your company to the register. A notice of restoration will be published in the Gazette and the company will appear as ‘active’ on the register.

 

Court order restoration

 

If you previously dissolved a company and now wish to restore it to the register, you will need to apply for a court order. While this is not as simple as the process for administrative restoration, a good solicitor will alleviate the burden and is therefore a sensible investment.
As a former shareholder or director, you are likely to be eligible to apply for a court order to restore the company.

This also extends to people who:

 

a. did business with or worked for a company;

b. were owed money by the company when it was dissolved;

c. are responsible for their employee pension fund; or

d. have a shared or competing interest in land.

 

To apply for court restoration in England and Wales, you must fill in a ‘claim to restore by court order’ (form N208), which can be found at GOV.UK. The court fee for this is £308, to be made payable to Her Majesty’s Courts and Tribunals Service by cash, cheque or postal order.

In Scotland, you should send the claim to the Court of Session. After this, you will have to serve a ‘petition to restore’ on the Registrar of Companies in Scotland. For court order restoration in Northern Ireland, you must serve an ‘originating summons’ on the Royal Courts of Justice and the Registrar of Companies in Northern Ireland.

Along with the claim, you will need to include a witness statement, which your solicitor will be able to help you with. It must detail the reason/s why you have the right to make the application, as well as other key information, including an explanation of why the company was struck off the register. As a director or company owner you will need to provide details of the company’s financial position at the time it was dissolved.

Once the form is completed, three copies must be sent along with the supporting evidence to the court that has the jurisdiction to deal with it. This depends on the registered address of the company at the time it was dissolved, with the exception of the Companies Court in London, which has the authority to deal with the application regardless.

The costs involved in a court order restoration, in addition to the £308 court fee, include a £300 payment to the Registrar of Companies and any fees owed to your legal adviser. If you want your company to recommence trading, it is also necessary to file any outstanding accounts and returns. However, if your aim is to recover assets then this step is not necessary.

 

What next?

 

A hearing date is normally issued shortly after the forms have been lodged with the courts. You can attend the hearing in person or choose to be represented by an advocate. If your claim is accepted, the court will issue an order to restore your company. This will be sent to you and it important that you then send it on to the Registrar of Companies.

When a dissolved company is restored to the register, it is “deemed to have continued in existence as if it had not been dissolved or struck off the register” under section 1032(1) of the Companies Act 2006.

Restoring a company to the register can be a complicated and lengthy process, particularly without professional legal advice, which is highly recommended and likely to save time and money in the long run.