When dissolving a company, no acid baths are necessary – it will suffice to make an application to the Registrar of Companies (or, as we like to refer to it, the “Reaper”) to have the company struck off the register. As ghoulish as it may sound, however, in some circumstances it may be necessary or desirable for a previously dissolved company to be exhumed from the grave if, for example:
- the company has “met an untimely end” for failing to comply with statutory filing requirements, yet its business has continued to trade; or
- a third party has unfinished business with the company from its past life, and wishes to bring a legal action against it; or
- the company has been buried along with title to an asset that was not properly transferred to the company’s shareholders, and was therefore vested in the Crown as bona vacantia when the company went “the way of all flesh”.
Part 31 of the Companies Act 2006 (or, as we like to call it, the “Alchemist’s Handbook”) provides two procedures for the resurrection of dissolved companies:
Administrative restoration (sections 1024 to 1028): a company may be restored to the mortal realm on the say-so of the Reaper and without an application to the court in certain limited circumstances.
Restoration to the register by court order (sections 1029 to 1034): The Alchemist’s Handbook has introduced the magical panacea of a single, unified court procedure for company restoration in circumstances where the Reaper has no dominion.
The inevitability of death and… paperwork
A company may be reanimated by the Reaper under the administrative procedure if and only if:
- The company was struck off under the provisions set out in the Alchemist’s Handbook (rather than under previous company legislation);
- Either a former director or member of the Company makes the application;
- The company must have been carrying on business or in operation at the time it was struck off;
- Where any property that has passed to the Crown, the Treasury Solicitor (otherwise known as the “Bogeyman”) consents to the restoration;
- It is less than six years since the company “crossed over the Styx”; and
- The Reaper has received all the completed papers necessary to bring the company’s record up to date, and any late-filing penalties have been paid.
If a third party who is ineligible for administrative restoration wishes to restore the company or on the application of a former director or member the Reaper decides not to restore the company to the register by the administrative process, then the applicant may apply to the court for a restoration order within 28 days of the Reaper’s decision.
Hocus pocus by court order
Except in the case of a personal injury claim, an application for restoration must be made within six years of the date of dissolution of the company) by:
- any former director, member, creditor or liquidator;
- any person who had a contractual relationship with the company or a potential legal claim against the company; or
- any other person who appears to the Court to have an interest in the matter to restore the company to the register.
We are expert in the dark arts and hocus pocus involved in a restoration application, including the merits of the application and drafting the claim form and witness statement with the relevant information for issue at court.
Once the court has issued the application and provided a hearing date of approximately 3 months time, we can contact the Bogeyman to obtain their consent to the application thereby attempting to avoid the need for a hearing.
The Reaper will provide requirements which must be complied with before the Bogeyman can consent to the Company being restored. If it is not possible to comply with the Reaper’s requirements it will be necessary to attend a hearing.
The applicant may have to pay costs and penalties in order to restore the company such as the court issue fee, late filing fees or the Reaper and the Bogeyman’s costs in connection with the proceedings.
The living dead
Once restored to the register, the company 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 Alchemist’s Handbook. Further, the recent case of Peakstone v Joddrell  EWCA Civ 1035 (26 July 2012) has confirmed that an order restoring a company to the register will have the effect of retrospectively validating proceedings brought against company while it was dissolved. The court concluded, essentially, that section 1032(1) has serious voodoo-like qualities sufficient to override any existential qualms connected with the company being unable to acknowledge the service of proceedings whilst it was dissolved.