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Lord Hodgson of Astley Abbotts: My Lords, we are grateful to the Government for having circulated an explanatory note about these fairly technical changes. We have no problem with them even though they have come quite late in the day. We have had no representations about them. I am grateful to the Government for introducing me to bona vacantia, a concept which, with Foss v Harbottle, will be my abiding memory of the Company Law Reform Bill.

Lord Razzall: My Lords, I agree.
 
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On Question, amendment greed to.

Lord Sainsbury of Turville moved Amendments Nos. 68 to 79:


TIME FOR MAKING CROWN DISCLAIMER OF PROPERTY VESTING AS BONA VACANTIA
In section 656 of the Companies Act 1985 (c. 6) (Crown disclaimer of property vesting as bona vacantia), for subsections (3) and (4) (time within which notice of disclaimer must be executed) substitute—
"(3) A notice of disclaimer must be executed within three years after—
(a) the date on which the fact that the property may have vested in the Crown under section 654 first comes to the notice of the Crown representative, or
(b) if ownership of the property is not established at that date, the end of the period reasonably necessary for the Crown representative to establish the ownership of the property.
(3A) If an application in writing is made to the Crown representative by a person interested in the property requiring him to decide whether he will or will not disclaim, any notice of disclaimer must be executed within twelve months after the making of the application or such further period as may be allowed by the court.
(3B) A notice of disclaimer under this section is of no effect if it is shown to have been executed after the end of the period specified by subsection (3) or (3A)."."
After Clause 670, insert the following new clause—
"Administrative restoration to the register
APPLICATION FOR ADMINISTRATIVE RESTORATION TO THE REGISTER
(1) An application may be made to the registrar to restore to the register a company that has been struck off the register under section 652 of the Companies Act 1985 (c. 6) (power of registrar to strike off defunct company).
(2) An application under this section may be made whether or not the company has in consequence also been dissolved (see section 652(5)).
(3) An application under this section may only be made by a former director or former member of the company.
(4) An application under this section may not be made after the end of the period of six years from the date of the dissolution of the company.
For this purpose an application is made when it is received by the registrar."
After Clause 670, insert the following new clause—
"REQUIREMENTS FOR ADMINISTRATIVE RESTORATION
(1) On an application under section (Application for administrative restoration to the register) the registrar shall restore the company to the register if, and only if, the following conditions are met.
(2) The first condition is that the company was carrying on business or in operation at the time of its striking off.
(3) The second condition is that, if any property or right previously vested in or held on trust for the company has vested as bona vacantia, the Crown representative has signified to the registrar in writing consent to the company's restoration to the register.
(4) It is the applicant's responsibility to obtain that consent and to pay any costs (in Scotland, expenses) of the Crown representative—
(a) in dealing with the property during the period of dissolution, or
 
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(b) in connection with the proceedings on the application,
that may be demanded as a condition of giving consent.
(5) The third condition is that the applicant has—
(a) delivered to the registrar such documents relating to the company as are necessary to bring up to date the records kept by the registrar, and
(b) paid any penalties under section 434 or corresponding earlier provisions (civil penalty for failure to deliver accounts) that were outstanding at the date of dissolution or striking off.
(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."
After Clause 670, insert the following new clause—
"APPLICATION TO BE ACCOMPANIED BY STATEMENT OF COMPLIANCE
(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."
After Clause 670, insert the following new clause—
"REGISTRAR'S DECISION ON APPLICATION FOR ADMINISTRATIVE RESTORATION
(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—
(i) in the Gazette, or
(ii) in accordance with section 746 (alternative means of giving notice).
(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
(c) the date as from which the restoration of the company to the register takes effect."
After Clause 670, insert the following new clause—
"EFFECT OF ADMINISTRATIVE RESTORATION
(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.
 
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(2) The company is not liable to a penalty under section 434 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."
After Clause 670, insert the following new clause—
"Restoration to the register by the court
APPLICATION TO COURT FOR RESTORATION TO THE REGISTER
(1) An application may be made to the court to restore to the register a company—
(a) that has been dissolved under Chapter 4 of Part 9 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 the Insolvency Act 1986 (c. 45) or paragraph 85(6) of Schedule B1 to the Insolvency (Northern Ireland) Order 1989 (dissolution of company following administration), or
(c) that has been struck off the register—
(i) under section 652 of the Companies Act 1985 (c. 6) (power of registrar to strike off defunct company), or
(ii) under section 652A of that Act (voluntary striking off),
whether or not the company has in consequence also been dissolved (see section 652(5) or 652A(5)).
(2) An application under this section may be made by—
(a) the Secretary of State,
(b) any former director of the company,
(c) any person having an interest in land in which the company had a superior or derivative interest,
(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 652A of the Companies Act 1985 (c. 6), any person of a description specified by regulations under
 
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section 652B(6)(f) or 652C(2)(f) of that Act (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."
After Clause 670, insert the following new clause—
"WHEN APPLICATION TO THE COURT MAY BE MADE
(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 652 of the Companies Act 1985 (c. 6) (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 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))."
After Clause 670, insert the following new clause—
"DECISION ON APPLICATION FOR RESTORATION BY THE COURT
(1) On an application under section (Application to the 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 652 of the Companies Act 1985 (c. 6) (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;
 
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(b) if the company was struck off the register under section 652A of that Act (voluntary striking off) and any of the requirements of section 652B or 652C of that Act 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—
(a) in the Gazette, or
(b) in accordance with section 746 (alternative means of giving notice),
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."
After Clause 670, insert the following new clause—
"EFFECT OF COURT ORDER FOR RESTORATION TO THE REGISTER
(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 434 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."
After Clause 670, insert the following new clause—
"Restoration to the register: supplementary provisions
COMPANY'S NAME ON RESTORATION
(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.
 
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(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."
After Clause 670, insert the following new clause—
"RESTORATION TO THE REGISTER: OTHER AMENDMENTS
(1) In section 654 of the Companies Act 1985 (c. 6) (property of dissolved company to be bona vacantia), in subsection (2) for "any order made by the court under section 651 or 653" substitute "the possible restoration of the company to the register under sections (Application for administrative restoration to the register) to (Effect of court order for restoration to the register) of the Company Law Reform Act 2006".
(2) For section 655 of that Act (effect of s. 654 on company's revival after dissolution) substitute—
"655 EFFECT OF RESTORATION TO THE REGISTER WHERE PROPERTY HAS VESTED AS BONA VACANTIA
(1) The person in whom any property or right is vested by section 654 may dispose of, or of an interest in, that property or right despite the fact that the company may be restored to the
 
23 May 2006 : Column 767
 
register under sections (Application for administrative restoration to the register) to (Effect of court order for restoration to the register) of the Company Law Reform Act 2006.
(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."."

On Question, amendments agreed to.

Clause 717 [Material not available for public inspection]:


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