Under the Companies (Guernsey) Law, 2008 (as amended) (the “Law”) there are two procedures available for the voluntary dissolution of a Guernsey company. A Guernsey company may be dissolved either by way of a “voluntary striking off” under Part XX of the Law or a “voluntary winding up” under Part XXII of the Law.
Ultimately, whether the voluntary winding up procedure or the voluntary striking off procedure is the most appropriate to dissolve the company will depend on various factors, including whether the criteria for using the voluntary striking off procedure are met, the commercial timescales and objectives and the costs involved.
We set out a broad summary of each procedure below as well as the costs associated with each.
Voluntary Striking Off
The voluntary striking off procedure takes between approximately two to five months and is only available to Guernsey companies that meet certain criteria that are set out in the Law. Accordingly, the procedure is most commonly used to dissolve companies that are dormant. The procedure involved is outlined broadly below:
- The company must apply to the Guernsey Registrar of Companies (the “Registrar”) to be struck off the Guernsey Companies Register (the “Register”).
- The application must be made by the board of the directors of the Company and be accompanied by (i) a signed declaration of compliance (voluntary striking off), which is a declaration signed by a director of the company certifying that all of the requirements of the Law in respect of the application for striking off have been fulfilled and (ii) such other information as may be required by the Registrar.
- Within seven days of the application being made, a copy of the application must be given to every person who is on that day a member, employee, creditor or director of the company (save for the directors who are party to the application), or any manager or trustee of any pension fund established for the benefit of employees of the company.
- If the Company is a “supervised company”, a copy of the application must also be given to the Guernsey Financial Services Commission (the “Commission”) within seven days after the day on which the application is made to the Registrar. Broadly speaking, a “supervised company” is a company that is or was licensed by the Commission.
- The application for striking off cannot be made if at any time in the three months preceding the date of the application the company has:
- changed its name; or
- traded or otherwise carried on business; or
- made a disposal for value of property or rights that, immediately before ceasing to trade or otherwise carry on business, it held for the purpose of disposal for gain in the normal course of trading or otherwise carrying on business. In this regard we note that pursuant to section 358 of the Law a company is not to be treated as trading or otherwise carrying on business by virtue only of the fact that it makes payment of a liability incurred in the course of trading or otherwise carrying on business; or
- engaged in any other activity, except which is necessary or expedient for the purpose of:
- making an application for strike off or deciding whether to do so;
- concluding the affairs of the company; or
- complying with the requirements of any enactment.
- Further, an application for striking off cannot be made in circumstances where (i) the company is party to any legal proceedings; or (ii) if certain types of proceedings connected with the company’s solvency have not been concluded (for example, if a compulsory winding up application has been made in respect of the company which has not been concluded).
Following receipt of the application the Registrar must give notice stating that after two months the company will be struck off the Register. Unless cause is shown to the contrary, at the end of the two month period the Registrar will strike the company off the Register and the company will be dissolved.
Restoration to the Register
In the case of a voluntary striking off, an application can be made to restore a company to the Register. In this regard, we refer you to our Red Guide from our Dispute Resolution team entitled Restoration of a Guernsey Company to the Register of Companies. By contrast, there is no obvious way to restore a wound-up company to the Register. This is an important difference between the voluntary striking off and voluntary winding up procedure.
Where a company is struck off under the Law, all property and rights then vested in it (if any) or held on trust for it (but not property held on trust by it for another person) become bona vacantia belonging to the Crown. If a company is restored to the Register within six years from the date of its dissolution, the company is entitled, subject to any order of the Court, to have returned to it any property which vested in the Crown upon dissolution, or if any such property has been disposed of, its value at the time of disposal. The Court may extend the six year period, if it regards it equitable to do so having regard to the degree of prejudice the company would otherwise suffer.
From a costs perspective, the fee payable to the Registry for making a striking off application is an amount of £20 for filing a hard copy of the application and £10 for filing the application electronically.
Although the board is responsible for the application, the Guernsey administrator of the company often assists with this on the basis that they generally will have the company information and documentation to hand. The costs payable to the administrator will ultimately depend on what is negotiated with them and the scope of their role. As far as legal fees are concerned, these are usually estimated on a case by case basis and will depend on the complexity of the matter, as well as the role of the administrator.
We note that the fee payable to the Registry to make an application for restoration of a company is £1,500. This is in addition to any other court fees, company fees and legal fees which would be applicable to restoration.
Voluntary Winding Up
The voluntary winding up procedure typically takes between three and five months in a simple case, but may take longer depending upon how long it takes the liquidator to deal with the assets and liabilities of the company once they are appointed. The procedure involved is outlined broadly below:
- An application for the voluntary winding up of a Guernsey company is typically commenced by the passing of a special resolution of the members. However, the Law allows a company to be wound-up by an ordinary resolution of members where (i) the period (if any) in the company’s memorandum and articles for the duration of the company expires or (ii) an event occurs, the occurrence of which the memorandum and articles provide that the company shall be dissolved.
- The special or ordinary resolution (the “Resolution”) must approve (i) the winding up of the company, (ii) the appointment of a liquidator to wind up the company and (iii) fix the liquidator’s remuneration.
- The Resolution must be lodged within 30 days of passing with the Registrar and the Registrar must give notice of the Resolution. Failure to deliver the Resolution to the Registrar within the 30 day time period is an offence.
- The liquidator must then carry out the liquidation of the company. The liquidator must realise the company’s assets and discharge the company’s liabilities. Having done so, the liquidator must distribute any surplus amongst the members according to their respective entitlements.
- As soon as the affairs of the company are wound up, the liquidator must prepare an account of the winding up (giving details of the conduct of the liquidation and the disposal of the company’s property) and convene a general meeting of members, at which meeting the liquidator presents and provides an explanation of the account (the “Final Meeting”).
- After the Final Meeting the liquidator must give notice to the Registrar of the holding of the meeting and its date.
- The Registrar is required to publish notice of the fact of the Final Meeting and that the company is to be dissolved.
- On the expiration of three months beginning on the date of delivery of the notice of the Final Meeting by the liquidator, the company is dissolved.
The Law provides that from the commencement of the winding up:
- the company shall cease to carry on business except in so far as may be expedient for the beneficial winding up of the company;
- subject to the above, the company’s corporate state and powers continue until dissolution;
- all powers of the directors cease (except to the extent that the company by ordinary resolution or the liquidator sanctions their continuance); and
- any transfer of the company’s shares, other than a transfer made to or with the sanction of the liquidator is void.
In addition, immediately upon the dissolution of the company, it is prohibited from undertaking business or contracting debts or obligations.
From a costs perspective, the statutory fee payable to the Registry for a voluntary winding up is an amount of £20 for filing a hard copy of the Resolution or £10 if this is done electronically. The costs of the liquidator will depend on whether it is carried out in-house by the administrator or if a third party liquidator is appointed. Although there is no statutory requirement to appoint an independent liquidator of a Guernsey company, in our experience many companies choose to appoint an independent liquidator to carry out the liquidation.
There will also likely be some legal fees for the drafting of the Resolution and generally assisting the liquidator. We would be pleased to provide an estimate of such fees as these will vary depending on the complexity of the winding up in each individual case.