| Company Law Reform Bill [Lords] - continued | House of Commons |
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When application to the court may be made Margaret Hodge NC406 To move the following Clause:— ‘(1) An application to the court for restoration of a company to the register may be made at any time for the purpose of bringing proceedings against the company for damages for personal injury. (2) No order shall be made on such an application if it appears to the court that the proceedings would fail by virtue of any enactment as to the time within which proceedings must be brought. (3) In making that decision the court must have regard to its power under section (Effect of court order for restoration to the register)(3) (power to give consequential directions etc) to direct that the period between the dissolution (or striking off) of the company and the making of the order is not to count for the purposes of any such enactment. (4) In any other case an application to the court for restoration of a company to the register may not be made after the end of the period of six years from the date of the dissolution of the company, subject as follows. (5) In a case where— (a) the company has been struck off the register under section (Power to strike off company not carrying on business or in operation) or (Duty to act in case of company being wound up) (power of registrar to strike off defunct company), (b) an application to the registrar has been made under section (Application for administrative restoration to the register) (application for administrative restoration to the register) within the time allowed for making such an application, and (c) the registrar has refused the application, an application to the court under this section may be made within 28 days of notice of the registrar’s decision being issued by the registrar, even if the period of six years mentioned in subsection (4) above has expired. (6) For the purposes of this section— (a) “personal injury” includes any disease and any impairment of a person’s physical or mental condition; and (b) references to damages for personal injury include— (i) any sum claimed by virtue of section 1(2)(c) of the
(ii) damages under the Decision on application for restoration by the court Margaret Hodge NC407 To move the following Clause:— ‘(1) On an application under section (Application to court for restoration to the register) the court may order the restoration of the company to the register— (a) if the company was struck off the register under section (Power to strike off company not carrying on business or in operation) or (Duty to act in case of company being wound up) (power of registrar to strike off defunct companies) and the company was, at the time of the striking off, carrying on business or in operation; (b) if the company was struck off the register under section (Striking off on application by company) (voluntary striking off) and any of the requirements of section (Circumstances in which application not to be made: activities of company) to (Circumstances in which application to be withdrawn) was not complied with; (c) if in any other case the court considers it just to do so. (2) If the court orders restoration of the company to the register, the restoration takes effect on a copy of the court’s order being delivered to the registrar. (3) The registrar must cause to be published in the Gazette notice of the restoration of the company to the register. (4) The notice must state— (a) the name of the company or, if the company is restored to the register under a different name, that name and its former name, (b) the company’s registered number, and (c) the date on which the restoration took effect.’. Effect of court order for restoration to the register Margaret Hodge NC408 To move the following Clause:— ‘(1) The general effect of an order by the court for restoration to the register is that the company is deemed to have continued in existence as if it had not been dissolved or struck off the register. (2) The company is not liable to a penalty under section 458 or any corresponding earlier provision (civil penalty for failure to deliver accounts) for a financial year in relation to which the period for filing accounts and reports ended— (a) after the date of dissolution or striking off, and (b) before the restoration of the company to the register. (3) The court may give such directions and make such provision as seems just for placing the company and all other persons in the same position (as nearly as may be) as if the company had not been dissolved or struck off the register. (4) The court may also give directions as to— (a) the delivery to the registrar of such documents relating to the company as are necessary to bring up to date the records kept by the registrar, (b) the payment of the costs (in Scotland, expenses) of the registrar in connection with the proceedings for the restoration of the company to the register, (c) where any property or right previously vested in or held on trust for the company has vested as bona vacantia, the payment of the costs (in Scotland, expenses) of the Crown representative— (i) in dealing with the property during the period of dissolution, or (ii) in connection with the proceedings on the application. (5) In this section the “Crown representative” means— (a) in relation to property vested in the Duchy of Lancaster, the Solicitor to that Duchy; (b) in relation to property vested in the Duke of Cornwall, the Solicitor to the Duchy of Cornwall; (c) in relation to property in Scotland, the Queen’s and Lord Treasurer’s Remembrancer; (d) in relation to other property, the Treasury Solicitor.’. Company’s name on restoration Margaret Hodge NC409 To move the following Clause:— ‘(1) A company is restored to the register with the name it had before it was dissolved or struck off the register, subject to the following provisions. (2) If at the date of restoration the company could not be registered under its former name without contravening section 67 (name not to be the same as another in the registrar’s index of company names), it must be restored to the register— (a) under another name specified— (i) in the case of administrative restoration, in the application to the registrar, or (ii) in the case of restoration under a court order, in the court’s order, or (b) as if its registered number was also its name. References to a company’s being registered in a name and to registration, in that context, shall be read as including the company’s being restored to the register. (3) If a company is restored to the register under a name specified in the application to the registrar, the provisions of— section 80 (change of name: registration and issue of new certificate of incorporation), and section 81 (change of name: effect), apply as if the application to the registrar were notice of a change of name. (4) If a company is restored to the register under a name specified in the court’s order, the provisions of— section 80 (change of name: registration and issue of new certificate of incorporation), and section 81 (change of name: effect), apply as if the copy of the court order delivered to the registrar were notice of a change a name. (5) If the company is restored to the register as if its registered number was also its name— (a) the company must change its name within 14 days after the date of the restoration, (b) the change may be made by resolution of the directors (without prejudice to any other method of changing the company’s name), (c) the company must give notice to the registrar of the change, and (d) sections 80 and 81 apply as regards the registration and effect of the change. (6) If the company fails to comply with subsection (5)(a) or (c) an offence is committed by— (a) the company, and (b) every officer of the company who is in default. (7) A person guilty of an offence under subsection (6) is liable on summary conviction to a fine not exceeding level 5 on the standard scale and, for continued contravention, to a daily default fine not exceeding one-tenth of level 5 on the standard scale.’. Effect of restoration to the register where property has vested as bona vacantia Margaret Hodge NC410 To move the following Clause:— ‘(1) The person in whom any property or right is vested by section (Property of dissolved company to be bona vacantia) (property of dissolved company to be bona vacantia) may dispose of, or of an interest in, that property or right despite the fact that the company may be restored to the register under this Chapter. (2) If the company is restored to the register— (a) the restoration does not affect the disposition (but without prejudice to its effect in relation to any other property or right previously vested in or held on trust for the company), and (b) the Crown or, as the case may be, the Duke of Cornwall shall pay to the company an amount equal to— (i) the amount of any consideration received for the property or right or, as the case may be, the interest in it, or (ii) the value of any such consideration at the time of the disposition, or, if no consideration was received an amount equal to the value of the property, right or interest disposed of, as at the date of the disposition. (3) There may be deducted from the amount payable under subsection (2)(b) the reasonable costs of the Crown representative in connection with the disposition (to the extent that they have not been paid as a condition of administrative restoration or pursuant to a court order for restoration). (4) Where a liability accrues under subsection (2) in respect of any property or right which before the restoration of the company to the register had accrued as bona vacantia to the Duchy of Lancaster, the Attorney General of that Duchy shall represent Her Majesty in any proceedings arising in connection with that liability. (5) Where a liability accrues under subsection (2) in respect of any property or right which before the restoration of the company to the register had accrued as bona vacantia to the Duchy of Cornwall, such persons as the Duke of Cornwall (or other possessor for the time being of the Duchy) may appoint shall represent the Duke (or other possessor) in any proceedings arising out of that liability. (6) In this section the “Crown representative” means— (a) in relation to property vested in the Duchy of Lancaster, the Solicitor to that Duchy; (b) in relation to property vested in the Duke of Cornwall, the Solicitor to the Duchy of Cornwall; (c) in relation to property in Scotland, the Queen’s and Lord Treasurer’s Remembrancer; (d) in relation to other property, the Treasury Solicitor.’. Production and inspection of documents where offence suspected Margaret Hodge NC411 To move the following Clause:— ‘(1) An application under this section may be made— (a) in England and Wales, to a judge of the High Court by the Director of Public Prosecutions, the Secretary of State or a chief officer of police; (b) in Scotland, to one of the Lords Commissioners of Justiciary by the Lord Advocate; (c) in Northern Ireland, to the High Court by the Director of Public Prosecutions for Northern Ireland, the Department of Enterprise, Trade and Investment or a chief superintendent of the Police Service of Northern Ireland. (2) If on an application under this section there is shown to be reasonable cause to believe— (a) that any person has, while an officer of a company, committed an offence in connection with the management of the company’s affairs, and (b) that evidence of the commission of the offence is to be found in any documents in the possession or control of the company, an order under this section may be made. (3) The order may— (a) authorise any person named in it to inspect the documents in question, or any of them, for the purpose of investigating and obtaining evidence of the offence, or (b) require the secretary of the company, or such other officer of it as may be named in the order, to produce the documents (or any of them) to a person named in the order at a place so named. (4) This section applies also in relation to documents in the possession or control of a person carrying on the business of banking, so far as they relate to the company’s affairs, as it applies to documents in the possession or control of the company, except that no such order as is referred to in subsection (3)(b) may be made by virtue of this subsection. (5) The decision under this section of a judge of the High Court, any of the Lords Commissioners of Justiciary or the High Court is not appealable. (6) In this section “document” includes information recorded in any form.’. Application of valuation requirements Margaret Hodge NC412 To move the following Clause:— ‘The provisions of sections (Valuation by qualified independent person) to (Valuer entitled to full disclosure) apply to the valuation and report required by— section 93 (re-registration as public company: valuation of recently transferred non-cash asset); section (Public company: valuation of non-cash consideration for shares) (allotment of shares of public company in consideration of non-cash asset); section (Public company: agreement for transfer of non-cash asset in initial period) (transfer of non-cash asset to public company).’. Valuation by qualified independent person Margaret Hodge NC413 To move the following Clause:— ‘(1) The valuation and report must be made by a person (“the valuer”) who— (a) is eligible for appointment as a statutory auditor (see section 841, and (b) meets the independence requirement in section (The independence requirement). (2) However, where it appears to the valuer to be reasonable for the valuation of the consideration, or part of it, to be made by (or for him to accept a valuation made by) another person who— (a) appears to him to have the requisite knowledge and experience to value the consideration or that part of it, and (b) is not an officer or employee of— (i) the company, or (ii) any other body corporate that is that company’s subsidiary or holding company or a subsidiary of that company’s holding company, or a partner of or employed by any such officer or employee, he may arrange for or accept such a valuation, together with a report which will enable him to make his own report under this section. (3) The references in subsection (2)(b) to an officer or employee do not include an auditor. (4) Where the consideration or part of it is valued by a person other than the valuer himself, the latter’s report must state that fact and shall also— (a) state the former’s name and what knowledge and experience he has to carry out the valuation, and (b) describe so much of the consideration as was valued by the other person, and the method used to value it, and specify the date of that valuation.’. The independence requirement Margaret Hodge NC414 To move the following Clause:— ‘(1) A person meets the independence requirement for the purposes of section (Valuation by qualified independent person) only if— (a) he is not— (i) an officer or employee of the company, or (ii) a partner or employee of such a person, or a partnership of which such a person is a partner; (b) he is not— (i) an officer or employee of an associated undertaking of the company, or (ii) a partner or employee of such a person, or a partnership of which such a person is a partner; and (c) there does not exist between— (i) the person or an associate of his, and (ii) the company or an associated undertaking of the company, a connection of any such description as may be specified by regulations made by the Secretary of State. (2) An auditor of the company is not regarded as an officer or employee of the company for this purpose. (3) In this section— “associated undertaking” means— (o) a parent undertaking or subsidiary undertaking of the company, or (p) a subsidiary undertaking of a parent undertaking of the company; and “associate” has the meaning given by section (Meaning of “associate”). (4) Regulations under this section are subject to negative resolution procedure.’. Meaning of “associate” Margaret Hodge NC415 To move the following Clause:— ‘(1) This section defines “associate” for the purposes of section (The independence requirement) (valuation: independence requirement). (2) In relation to an individual, “associate” means— (a) that individual’s spouse or civil partner or minor child or step-child, (b) any body corporate of which that individual is a director, and (c) any employee or partner of that individual. (3) In relation to a body corporate, “associate” means— (a) any body corporate of which that body is a director, (b) any body corporate in the same group as that body, and (c) any employee or partner of that body or of any body corporate in the same group. (4) In relation to a partnership that is a legal person under the law by which it is governed, “associate” means— (a) any body corporate of which that partnership is a director, (b) any employee of or partner in that partnership, and (c) any person who is an associate of a partner in that partnership. (5) In relation to a partnership that is not a legal person under the law by which it is governed, “associate” means any person who is an associate of any of the partners. (6) In this section, in relation to a limited liability partnership, for “director” read “member”.’. Valuer entitled to full disclosure Margaret Hodge NC416 To move the following Clause:— ‘(1) A person carrying out a valuation or making a report with respect to any consideration proposed to be accepted or given by a company, is entitled to require from the officers of the company such information and explanation as he thinks necessary to enable him to— (a) carry out the valuation or make the report, and (b) provide any note required by section (Non-cash consideration for shares: requirements as to valuation and report)(3) or (Agreement for transfer of non-cash asset: requirements as to valution and report)(3) (note required where valuation carried out by another person). (2) A person who knowingly or recklessly makes a statement to which this subsection applies that is misleading, false or deceptive in a material particular commits an offence. (3) Subsection (2) applies to a statement— (a) made (whether orally or in writing) to a person carrying out a valuation or making a report, and (b) conveying or purporting to convey any information or explanation which that person requires, or is entitled to require, under subsection (1). (4) A person guilty of an offence under subsection (2) is liable— (a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both); (b) on summary conviction— (i) in England and Wales, to imprisonment for a term not exceeding twelve months or to a fine not exceeding the statutory maximum (or both); (ii) in Scotland or Northern Ireland, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum (or both).’. |
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| © Parliamentary copyright 2006 | Prepared: 13 July 2006 |