Does a company get any warning about being struck off?
Yes. 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 the Registrar may send 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 in 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 a registered office resulting in companies being struck off without their knowledge.
Why can’t I just set up another company?
This is a criminal offence. You cannot just set up another company 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. There is no real alternative to getting a restoration order.
What is the legal position if a company is struck off or dissolved?
When a company is struck off or dissolved, all of its bank accounts, property and assets are forfeit to the Crown, or to the Duchies of Lancaster. The only way a struck off company can continue to deal legally with its accounts, property and assets is to apply for a court order restoring the company with the consent of the Treasury Solicitor and Registrar of Companies. Until the company is restored by a court order, it remains unable to deal with its assets. The company must be restored in order to collect its debts, pursue tax and VAT claims, etc.
Is there any time limit for a company which has been struck off for non-filing returns to apply for restoration?
There is a 20 year time limit. If the company has been through a formal liquidation procedure the time limit is two years. There is no limit if the purpose is to bring proceedings against the company for damages for personal injuries or fatal accidents.
What exactly is company restoration?
If your company has been struck off involuntarily, or had its assets frozen you will want to get it back on the register in the shortest possible time. You may have been struck off without your knowledge for failing to file returns or accounts, perhaps because you forgot or delayed too long. Maybe you simply forgot to inform Companies House of a change to the registered office. Restoration to the register follows a set procedure so you can start trading again.
How do I get restored to the register?
Restoration cannot be done without a court order. Applications have to be made and evidence seen by the court. See article on restoration to the register.
Who can apply?
A member or a creditor of the company, within 20 years of dissolution, and in certain circumstances, other parties.
What evidence is needed?
The Court requires an affidavit (statement of truth) or a witness statement as evidence. This must confirm that the originating document was served; the solicitor dealing with assets has no objection to the restoration (a copy of his or her letter should be attached to the affidavit or witness statement). Other vital information includes details of when the company was incorporated, the nature of the company (a copy of the certificate of incorporation and the memorandum, and articles of association should be attached), its trading activity, and if applicable, when it stopped trading. Also needed is an explanation of any failure to deliver accounts, annual returns etc., details of the striking off and dissolution, comments on the company’s solvency and any other information that explains the reason for the application.
The Registrar will provide information to assist is application to the Court. Before the court hearing he will normally ask for delivery of any statutory documents to bring the companies public file up to date.
Will I need to pay costs?
Yes. The Treasury Solicitor, whose costs are normally met by the applicant(s), will represent the register. Costs are normally 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 late.