How to Restore a Company to the Register of Companies in Scotland
When a company is dissolved or struck off the Register of Companies it ceases to legally exist.
Directors of limited companies often assume that if their company is dissolved or struck off the Register of Companies, they are entitled to any money or assets owned by the company, but that is not the case.
Instead, all assets belonging to the dissolved company vest in the Crown as ownerless property at the date of dissolution.
What Can You Do
Part 31 of the Companies Act 2006 sets out various circumstances where it is possible to restore a company to the Register of Companies. A company may be restored to the Register either by administrative restoration or by court restoration.
Administrative Restoration
This involves an application being submitted to the Registrar of Companies (Companies House). It is a cheaper & more straightforward process compared to restoration by way of court order.
There are three scenarios where administrative restoration is available:
- Where the company has been struck off due to the Registrar having reasonable cause to believe company is no longer operating, but the company was in fact carrying on business or in operation at the time of striking off; or,
- Where the company has been struck off due to the Registrar having reasonable cause to believe that either (i) no liquidator is acting or (ii) the affairs of the company are fully wound up, but the company was in fact carrying on business or in operation at the time of striking off; or,
- Where the company has been struck off due to the Registrar having reasonable cause to believe that the company provided misleading, false or deceptive information, but in fact the Registrar did not have reasonable cause to believe this.
In addition to meeting one of the above, an applicant must also:
- Be a former member or director of the company
- Submit an application to the Registrar within six years of dissolution
- Obtain a letter of consent to the restoration from the Crown through the King’s and Lord Treasurer’s Remembrancer and pay the £100 fee for this service.
- Ensure all outstanding fines are paid and file any outstanding documents or accounts online.
Once an applicant has satisfied the above steps, the application form can be sent to the Registrar in Cardiff. The Registrar will then review the application and should restore the company by changing the company status from dissolved to active on Companies House.
Court Restoration
For all other circumstances, the court will need to be petitioned to restore the company to the Register. A typical situation requiring court restoration is where a company has applied for voluntary strike off but overlooks transferring all assets, particularly cash held in bank accounts, which consequently vest with the Crown on the date of dissolution.
The court process is a long and more costly compared to administrative restoration. Any person with an interest in restoring a company can petition the court for restoration of that company. The petition will either be lodged in the Court of Session or the Sheriff Court closest to the company’s registered office. The company’s share capital will determine where the petition should be lodged.
The petition should set out certain key details:
- The interest of the petitioner
- Share capital of the company
- Reasons why the company was dissolved
- Reasons why restoration is sought
- Reasons why it is ‘just’ for the company to be restored
It is necessary to serve the petition on all parties who may have an interest in the restoration of the company, for example, all company directors prior to dissolution. The petition must also be served on:
- The Crown
- Companies House
- The Lord Advocate
The petition also requires to be advertised in the Edinburgh Gazette, a local newspaper and on the Scottish Courts website. Any party that wishes to lodge answers to the petition will generally have 8 days to do so.
Provided evidence of advertisement and intimation are lodged and no answers are received, the court will usually grant the petition and order the company to be restored to the Register. It will then be a matter of the Sheriff Clerk intimating the court order on the Registrar in Cardiff. The Registrar will then restore the company to the Register of Companies and advertise the restoration in the Edinburgh Gazette.
How Our Scottish Solicitors Can Help Restore Your Company
Our dispute resolution team provide advice and representation in relation to company restoration. We assist clients through every stage of the process, from identifying the appropriate restoration method, drafting and lodging the application or petition and liaising with Companies House.
If you need to restore a dissolved company to the Register of Companies, contact our team today for clear advice on the best route forward.
