House of Commons - Amendments

Company Law Reform Bill [Lords] *- continued*	House of Commons

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Application to be accompanied by statement of compliance

Margaret Hodge

NC402

To move the following Clause:—

‘(1) An application under section (Application for administrative restoration to the register) (application for administrative restoration to the register) must be accompanied by a statement of compliance.

(2) The statement of compliance required is a statement—

(a) that the person making the application has standing to apply (see subsection (3) of that section), and

(b) that the requirements for administrative restoration (see section (Requirements for administrative restoration)) are met.

(3) The registrar may accept the statement of compliance as sufficient evidence of those matters.’.

Registrar’s decision on application for administrative restoration

Margaret Hodge

NC403

To move the following Clause:—

‘(1) The registrar must give notice to the applicant of the decision on an application under section (Application for administrative restoration to the register) (application for administrative restoration to the register).

(2) If the decision is that the company should be restored to the register, the restoration takes effect as from the date that notice is sent.

(3) In the case of such a decision, the registrar must—

(a) enter on the register a note of the date as from which the company’s restoration to the register takes effect, and

(b) cause notice of the restoration to be published in the Gazette.

(4) The notice under subsection (3)(b) 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

Effect of administrative restoration

Margaret Hodge

NC404

To move the following Clause:—

‘(1) The general effect of administrative 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) An application to the court for such directions or provision may be made any time within three years after the date of restoration of the company to the register.’.

Application to court for restoration to the register

Margaret Hodge

NC405

To move the following Clause:—

‘(1) An application may be made to the court to restore to the register a company—

(a) that has been dissolved under Chapter 9 of Part 4 of the Insolvency Act 1986 (c. 45) or Chapter 9 of Part 5 of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) (dissolution of company after winding up),

(b) that is deemed to have been dissolved under paragraph 84(6) of Schedule B1 to that Act or paragraph 85(6) of Schedule B1 to that Order (dissolution of company following administration), or

(i) 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), or

(ii) under section (Striking off on application by company) (voluntary striking off),

whether or not the company has in consequence been dissolved.

(2) An application under this section may be made by—

(a) the Secretary of State,

(b) any former director of the company,

(d) any person having an interest in land or other property—

(i) that was subject to rights vested in the company, or

(ii) that was benefited by obligations owed by the company,

(e) any person who but for the company’s dissolution would have been in a contractual relationship with it,

(f) any person with a potential legal claim against the company,

(g) any manager or trustee of a pension fund established for the benefit of employees of the company,

(h) any former member of the company (or the personal representatives of such a person),

(i) any person who was a creditor of the company at the time of its striking off or dissolution,

(j) any former liquidator of the company,

(k) where the company was struck off the register under section (Striking off on application by company) (voluntary striking off), any person of a description specified by regulations under section (Copy of application to be given to members, employees, etc)(1)(f) or (Copy of application to be given to new members, employees, etc)(2)(f) (persons entitled to notice of application for voluntary striking off),

or by any other person appearing to the court to have an interest in the matter.’.

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

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 Law Reform (Miscellaneous Provisions) Act 1934 (c. 41) or section 14(2)(c) of the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1937 (1937 c. 9 (N.I.)) (funeral expenses)), and

(ii) damages under the Fatal Accidents Act 1976 (c. 30), the Damages (Scotland) Act 1976 (c. 13) or the Fatal Accidents (Northern Ireland) Order 1977 (S.I. 1977/1251 (N.I. 18)).’.

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;

(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

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.

(a) after the date of dissolution or striking off, and

(b) before the restoration of the company to 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;

(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),

(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;

(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.’.

Prepared: 20 July 2006