The Registrar cannot restore a company to the register without a Court Order. When the Registrar receives an office copy of the Court Order for restoration, a company is regarded as having continued in existence as if it had not been struck off and dissolved.

1. Who can apply to have a company restored to the register?

For companies struck off following a Form 652a application: any of the parties who must be notified of the application can apply to the Court within 20 years of dissolution for the name of the dissolved company to be restored to the register. The Court may order restoration under section 653 of the Companies Act 1985 if it is satisfied that:

• the person was not given a copy of the company’s application;
• the company’s application involved a breach of the conditions of the application; or
• for some other reason it is just to do so.

The Secretary of State may also apply to the Court for restoration if this is justified in the public interest.

For companies struck off at the instigation of the Registrar: the company, or a member or creditor of it, can apply to the Court for restoration within 20 years of the dissolution. When a company applies for its own restoration, a member of the company must also be an applicant to give any necessary undertakings to the Court.

Where a company is dissolved: the liquidator or any other interested party such as a creditor can apply to the Court for the dissolution to be declared void. In most cases an application must be made within two years of dissolution, but it can be made at any time if its purpose is to bring proceedings against a company for:

• damages for personal injuries including any sum under Section 1(2)(c) of the Law Reform (Miscellaneous Provisions) Act 1934 (funeral expenses); or
• damages under the Fatal Accidents Act 1976 or the Damages (Scotland) Act 1976.

2. Where do I apply for a Court Order for restoration?

You apply to the court with jurisdiction to wind up the company. In all cases, this is the Court of Session. Alternatively, for a company whose paid-up capital does not exceed £120,000, you can apply to the Sheriff Court in the sheriffdom in which the company has its registered office.

3. How do I serve documents?

The petition should be served on:

The Lord Advocate
Crown Office
25 Chambers Street
Edinburgh EH1 1LA
DX ED310

and:

The Registrar of Companies
Companies House
37 Castle Terrace
Edinburgh EH1 2EB
DX: ED235 Edinburgh 1
LP – 4 Edinburgh 2

The Registrar will accept delivery by post (recorded delivery is recommended) or by hand at Companies House Edinburgh during normal office hours.

An agent may represent the Registrar of Companies and/or the Lord Advocate at the hearing.

4. What evidence must I give?

The Court will require evidence covering:

• service of the petition on the Registrar of Companies and the Lord Advocate.

The Court will usually require background information on the company. This can be provided in the petition (its form is prescribed in the rules of court) and may include:

• when the company was incorporated and the nature of its objects (a copy of the certificate of incorporation and the memorandum and articles of association should be attached);
• its membership and officers;
• its trading activity and, if applicable, when it stopped trading;
• an explanation of any failure to deliver accounts, annual returns or notices to the Registrar of Companies;
• details of the striking-off and dissolution;
• comments on the company’s solvency;
• any other information that explains the reason for the application.

The Registrar will provide information to assist in an application to the Court. Before the Court hearing, the Registrar will normally ask for:

• delivery of any statutory documents to bring the company’s public file up to date.
• the correction of any irregularities in the company’s structure.

5. Are there costs or penalties?

Yes. The applicant (s) may be expected to meet the costs of the Registrar in relation to the restoration. The company may also be required to meet the Registrar’s expenses and must normally pay any statutory penalties for late filing of accounts delivered to the Registrar outside the period allowed by the Companies Act 1985. The penalties that may be due are:

• unpaid penalties outstanding on accounts delivered late before the company was dissolved; and
• penalties due for accounts delivered on restoration, if the accounts were overdue at the date the company was dissolved.

The level of any late filing penalty depends on how late the accounts are when the Registrar receives them, as shown in the table below. In the case of accounts delivered on restoration, the period during which the company was dissolved is normally disregarded. For example, a set of accounts that should have been delivered 2 months before a private company was dissolved are normally regarded as 2 months late if they are delivered on restoration - the late filing penalty is still £100.

Tags: register restoration