FAQs

Does the company get any warning of being struck off?

Companies House will issue three notices. The Registrar may consider a company to be defunct if annual returns and accounts are not filed on time. If this is the case he may invoke the strike off procedure that consists of sending a series of warnings to the company's registered office. If no reply is received within a specified time limit a notice will be published in the London Gazette stating that at the expiration of three months, unless cause is shown to the contrary, the name of the company will be struck off the Companies Register and the company will be dissolved. Very often, companies fail to notify the Registrar of a change of registered office resulting in companies being struck off without their knowledge.

Can't I just set up another company?

No, because the old company is not a "legal person" once it has been struck off and has no legal capacity to transfer its assets to the new company. If you set up a new company and pretend it is the old company this is unlikely to work and if it does you will have committed a criminal offence by so doing. There is no real alternative to getting a restoration order.

What is the statutory power for this?

The Registrar of Companies has power under Section 652 of the Companies Act 1985 to strike a company off the Companies Register if he has reasonable cause to believe that a company is not carrying on business or in operation. Alternatively, a company may be struck off the Companies Register on an application for voluntary striking off by the Directors pursuant to Section 652a of the Companies Act 1985

Are there any time limits?

There is a 20 year time limit for a company which has been struck off for non-filing of returns to apply for restoration. If the company has been through a formal liquidation procedure the time limit is two years. The is no limit if the 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.

Who can apply?

A member or a creditor of the company, within 20 years of dissolution. If the company was dissolved following an application under section 652a, any of the parties who must be notified of the application may also apply.

Where?

To the High Court, District Registry, or a County Court that has jurisdiction to wind up the company.

Is a court order necessary?

Usually yes because 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. In small cases sometimes a court order is not required.

What evidence is necessary?

The Court will require an affidavit (statement of truth) or a witness statement confirming that:

· the originating document was served; and

· the solicitor dealing with the bona vacantia assets has no objection to the restoration of the company (a copy of his or her letter should be attached to the affidavit or witness statement).

The affidavit or witness statement should also cover, as appropriate to the application:

· 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, he will normally ask for:

· delivery of any statutory documents to bring the company's public file up to date. These should be sent to the Registrar at least five working days before the hearing to allow him time to process and examine them as they may have to be returned for amendment;

· the correction of any irregularities in the company's structure.

Will I need to pay any costs or penalties?

Yes. The Treasury Solicitor, whose costs are normally met by the applicant(s), will represent the Registrar. The costs are usually lower for cases in the Companies Court than in provincial courts where the Treasury Solicitor has to instruct an agent. The company must also pay the minimum statutory penalty for late filing for accounts delivered outside the period allowed by the Companies Act 1985.