Death (or dissolution) is not the end

Most company restoration applications are made by directors seeking to resurrect a company after it has been struck off the register because of a missing filing, or where an asset has been overlooked as part of a “tidying up”.

However, it can be an important route through to investigating the conduct of former office holders by a creditor or shareholder, particularly if those stakeholders think the liquidation has been nothing short of a stitch up.

An application can still be made even after a liquidation has concluded as long as it is within 6 years of the date of dissolution.   If a restoration order is made, the company is deemed to have continued in existence as if it had not been dissolved.  Liquidators leave office shortly after the filing of their final report, so if the company was in liquidation immediately before the date of dissolution, an application must also be made under Section108 Insolvency Act 1986 to appoint a liquidator.   

The Practice Note on Company Restorations requires that the purpose of the restoration has to be explained and any application served on any former office holder.  There may well be good reason not to do that.  The Court has determined recently that as restoration applications are heard on an ex parte basis, there is a duty of full and frank disclosure on any applicant.  If the application has not been served on the former liquidators, that should be disclosed and evidence given to explain why that step has not been taken together with why different liquidators are being appointed.   If the Court is satisfied that there are serious issues to be investigated, it would be entirely appropriate for a restoration order to be made and new liquidators to be appointed.

This applies not just to an insolvent liquidation, but also to a solvent liquidation - the liquidator’s “tenure” is still subject to the Court’s powers.  All of this goes to show if there is something worthy of investigating, dissolution is not the end of the road.

In re Core CVT PCL (in liquidation) and others [2019] EWHC 540

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