451A Disclosure of information by Secretary of State or inspector.
(1) This section applies to information obtained—
(a) under sections 434 to 446E ;
(b) by an inspector in consequence of the exercise of his powers under section 453A.
(2) The Secretary of State may, if he thinks fit—
(a) disclose any information to which this section applies to any person to whom, or for any purpose for which, disclosure is permitted under section 449, or
(b) authorise or require an inspector appointed under this Part to disclose such information to any such person or for any such purpose.
(3) Information to which this section applies may also be disclosed by an inspector appointed under this Part to—
(a) another inspector appointed under this Part;
(b) a person appointed under—
(i) section 167 of the Financial Services and Markets Act 2000 (general investigations),
(ii) section 168 of that Act (investigations in particular cases),
(iii) section 169(1)(b) of that Act (investigation in support of overseas regulator),
(iv) section 284 of that Act (investigations into affairs of certain collective investment schemes), or
(v) regulations made as a result of section 262(2)(k) of that Act (investigations into open-ended investment companies),
to conduct an investigation; or
(c) a person authorised to exercise powers under—
(i) section 447 of this Act; or
(ii) section 84 of the Companies Act 1989 (exercise of powers to assist overseas regulatory authority).
(4) Any information which may by virtue of subsection (3) be disclosed to any person may be disclosed to any officer or servant of that person.
(5) The Secretary of State may, if he thinks fit, disclose any information obtained under section 444 to—
(a) the company whose ownership was the subject of the investigation,
(b) any member of the company,
(c) any person whose conduct was investigated in the course of the investigation,
(d) the auditors of the company, or
(e) any person whose financial interests appear to the Secretary of State to be affected by matters covered by the investigation.
(6) For the purposes of this section, information obtained by an inspector in consequence of the exercise of his powers under section 453A includes information obtained by a person accompanying the inspector in pursuance of subsection (4) of that section in consequence of that person’s accompanying the inspector.
(7) The reference to an inspector in subsection (2)(b) above includes a reference to a person accompanying an inspector in pursuance of section 453A(4).
(1) Nothing in sections 431 to 446E compels the disclosure by any person to the Secretary of State or to an inspector appointed by him of information in respect of which in an action in the High Court a claim to legal professional privilege, or in an action in the Court of Session a claim to confidentiality of communications, could be maintained.
(1A) Nothing in section 434, 443 or 446 requires a person (except as mentioned in subsection (1B) below) to disclose information or produce documents in respect of which he owes an obligation of confidence by virtue of carrying on the business of banking unless—
(a) the person to whom the obligation of confidence is owed is the company or other body corporate under investigation,
(b) the person to whom the obligation of confidence is owed consents to the disclosure or production, or
(c) the making of the requirement is authorised by the Secretary of State.
(1B) Subsection (1A) does not apply where the person owing the obligation of confidence is the company or other body corporate under investigation under section 431, 432 or 433.
(2) Nothing in sections 447 to 451—
(a) compels the production by any person of a document or the disclosure by any person of information in respect of which in an action in the High Court a claim to legal professional privilege, or in an action in the Court of Session a claim to confidentiality of communications, could be maintained;
(b) authorises the taking of possession of any such document which is in the person’s possession.
(3) The Secretary of State must not under section 447 require, or authorise a person to require—
(a) the production by a person carrying on the business of banking of a document relating to the affairs of a customer of his, or
(b) the disclosure by him of information relating to those affairs,
unless one of the conditions in subsection (4) is met.
(4) The conditions are—
(a) the Secretary of State thinks it is necessary to do so for the purpose of investigating the affairs of the person carrying on the business of banking;
(b) the customer is a person on whom a requirement has been imposed under section 447;
(c) the customer is a person on whom a requirement to produce information or documents has been imposed by an investigator appointed by the Secretary of State in pursuance of section 171 or 173 of the Financial Services and Markets Act 2000 (powers of persons appointed under section 167 or as a result of section 168(2) to conduct an investigation).
(5) Despite subsections (1) and (2) a person who is a lawyer may be compelled to disclose the name and address of his client.
(1) The provisions of this Part apply to bodies corporate incorporated outside the United Kingdom which are carrying on business in the United Kingdom, or have at any time carried on business there, as they apply to companies under this Act; but subject to the following exceptions, adaptations and modifications.
(1A) The following provisions do not apply to such bodies—
(a) section 431 (investigation on application of company or its members),
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) sections 442 to 445 (investigation of company ownership and power to obtain information as to those interested in shares, &c.), . . .
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1B) The other provisions of this Part apply to such bodies subject to such adaptations and modifications as may be specified by regulations made by the Secretary of State.
(2) Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(1) An inspector or investigator may act under subsection (2) in relation to a company if—
(a) he is authorised to do so by the Secretary of State, and
(b) he thinks that to do so will materially assist him in the exercise of his functions under this Part in relation to the company.
(2) An inspector or investigator may at all reasonable times—
(a) require entry to relevant premises, and
(b) remain there for such period as he thinks necessary for the purpose mentioned in subsection (1)(b).
(3) Relevant premises are premises which the inspector or investigator believes are used (wholly or partly) for the purposes of the company’s business.
(4) In exercising his powers under subsection (2), an inspector or investigator may be accompanied by such other persons as he thinks appropriate.
(5) A person who intentionally obstructs a person lawfully acting under subsection (2) or (4) is guilty of an offence.
(5A) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to a fine;
(b) on summary conviction, to a fine not exceeding the statutory maximum.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) An inspector is a person appointed under section 431, 432 or 442.
(8) An investigator is a person authorised for the purposes of section 447.
453B Power to enter and remain on premises: procedural
(1) This section applies for the purposes of section 453A.
(2) The requirements of subsection (3) must be complied with at the time an inspector or investigator seeks to enter relevant premises under section 453A(2)(a).
(3) The requirements are—
(a) the inspector or investigator must produce evidence of his identity and evidence of his appointment or authorisation (as the case may be);
(b) any person accompanying the inspector or investigator must produce evidence of his identity.
(4) The inspector or investigator must, as soon as practicable after obtaining entry, give to an appropriate recipient a written statement containing such information as to—
(a) the powers of the investigator or inspector (as the case may be) under section 453A;
(b) the rights and obligations of the company, occupier and the persons present on the premises,
as may be prescribed by regulations.
(5) If during the time the inspector or investigator is on the premises there is no person present who appears to him to be an appropriate recipient for the purposes of subsection (8), the inspector or investigator must as soon as reasonably practicable send to the company—
(a) a notice of the fact and time that the visit took place, and
(b) the statement mentioned in subsection (4).
(6) As soon as reasonably practicable after exercising his powers under section 453A(2), the inspector or investigator must prepare a written record of the visit and—
(a) if requested to do so by the company he must give it a copy of the record;
(b) in a case where the company is not the sole occupier of the premises, if requested to do so by an occupier he must give the occupier a copy of the record.
(7) The written record must contain such information as may be prescribed by regulations.
(8) If the inspector or investigator thinks that the company is the sole occupier of the premises an appropriate recipient is a person who is present on the premises and who appears to the inspector or investigator to be—
(a) an officer of the company, or
(b) a person otherwise engaged in the business of the company if the inspector or investigator thinks that no officer of the company is present on the premises.
(9) If the inspector or investigator thinks that the company is not the occupier or sole occupier of the premises an appropriate recipient is—
(a) a person who is an appropriate recipient for the purposes of subsection (8), and (if different)
(b) a person who is present on the premises and who appears to the inspector or investigator to be an occupier of the premises or otherwise in charge of them.
(10) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(1) This section applies if a person fails to comply with a requirement imposed by an inspector, the Secretary of State or an investigator in pursuance of either of the following provisions—
(a) section 447;
(b) section 453A.
(2) The inspector, Secretary of State or investigator (as the case may be) may certify the fact in writing to the court.
(3) If, after hearing—
(a) any witnesses who may be produced against or on behalf of the alleged offender;
(b) any statement which may be offered in defence,
the court is satisfied that the offender failed without reasonable excuse to comply with the requirement, it may deal with him as if he had been guilty of contempt of the court.
Where an offence under any of sections 448, 449 to 451 and 453A is committed by a body corporate, every officer of the body who is in default also commits the offence. For this purpose—
(a) any person who purports to act as director, manager or secretary of the body is treated as an officer of the body, and
(b) if the body is a company, any shadow director is treated as an officer of the company.
(1) So long as any shares are directed to be subject to the restrictions of this Part then, subject to any directions made in relation to an order pursuant to section 445(1A) or 456(1A)—
(a) any transfer of those shares or, in the case of unissued shares, any transfer of the right to be issued with them, and any issue of them, is void;
(b) no voting rights are exercisable in respect of the shares;
(c) no further shares shall be issued in right of them or in pursuance of any offer made to their holder; and
(d) except in a liquidation, no payment shall be made of any sums due from the company on the shares, whether in respect of capital or otherwise.
(2) Where shares are subject to the restrictions of subsection (1)(a), any agreement to transfer the shares or, in the case of unissued shares, the right to be issued with them is void (except such agreement or right as may be made or exercised under the terms of directions made by the Secretary of State or the court under section 445(1A) or 456(1A) oran agreement to transfer the shares on the making of an order under section 456(3)(b) below).
(3) Where shares are subject to the restrictions of subsection (1)(c) or (d), an agreement to transfer any right to be issued with other shares in right of those shares, or to receive any payment on them (otherwise than in a liquidation) is void (except such agreement or right as may be made or exercised under the terms of directions made by the Secretary of State or the court under section 445(1A) or 456(1A) oran agreement to transfer any such right on the transfer of the shares on the making of an order under section 456(3)(b) below).
455 Punishment for attempted evasion of restrictions.
(1) Subject to the terms of any directions made under section 445(1A) or 456 a person commits an offence if he—
(a) exercises or purports to exercise any right to dispose of any shares which, to his knowledge, are for the time being subject to the restrictions of this Part or of any right to be issued with any such shares, or
(b) votes in respect of any such shares (whether as holder or proxy), or appoints a proxy to vote in respect of them, or
(c) being the holder of any such shares, fails to notify of their being subject to those restrictions any person whom he does not know to be aware of that fact but does know to be entitled (apart from the restrictions) to vote in respect of those shares whether as holder or as proxy, or
(d) being the holder of any such shares, or being entitled to any right to be issued with other shares in right of them, or to receive any payment on them (otherwise than in a liquidation), enters into any agreement which is void under section 454(2) or (3).
(2) Subject to the terms of any directions made under section 445(1A) or 456 if shares in a company are issued in contravention of the restrictions, an offence is committed by—
(a) the company, and
(b) every officer of the company who is in default.
(2A) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to a fine;
(b) on summary conviction, to a fine not exceeding the statutory maximum.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Where shares in a company are by order made subject to the restrictions of this Part, application may be made to the court for an order directing that the shares be no longer so subject.
(1A) Where the court is satisfied that an order subjecting the shares tothe restrictions of this Part unfairly affects the rights of third parties in respect of shares then the court, for the purpose of protecting such rights and subject to such terms as it thinks fit and in addition to any order it may make under subsection (1), may direct on an application made under that subsection that such acts by such persons or descriptions of persons and for such purposes, as may be set out in the order, shall not constitute a breach of the restrictions of Part XV of this Act. Subsection (3) does not apply to an order made under this subsection.
(2) If the order applying the restrictions was made by the Secretary of State, or he has refused to make an order disapplying them, the application may be made by any person aggrieved; . . . .
(3) Subject as follows, an order of the court or the Secretary of State directing that shares shall cease to be subject to the restrictions may be made only if—
(a) the court or (as the case may be) the Secretary of State is satisfied that the relevant facts about the shares have been disclosed to the company and no unfair advantage has accrued to any person as a result of the earlier failure to make that disclosure, or
(b) the shares are to be transferred for valuable consideration and the court (in any case) or the Secretary of State (if the order was made under section . . . 445) approves the transfer.
(4) Without prejudice to the power of the court to give directions under subsection (1A), where shares in a company are subject to the restrictions, the court may on application order the shares to be sold, subject to the court’s approval as to the sale, and may also direct that the shares shall cease to be subject to the restrictions.
An application to the court under this subsection may be made by the Secretary of State . . . , or by the company.
(5) Where an order has been made under subsection (4), the court may on application make such further order relating to the sale or transfer of the shares as it thinks fit.
An application to the court under this subsection may be made—
(a) by the Secretary of State . . . , or
(b) by the company, or
(c) by the person appointed by or in pursuance of the order to effect the sale, or
(d) by any person interested in the shares.
(6) An order (whether of the Secretary of State or the court) directing that shares shall cease to be subject to the restrictions of this Part, if it is—
(a) expressed to be made with a view to permitting a transfer of the shares, or
(b) made under subsection (4) of this section,
may continue the restrictions mentioned in paragraphs (c) and (d) of section 454(1), either in whole or in part, so far as they relate to any right acquired or offer made before the transfer.
(7) Subsection (3) does not apply to an order directing that shares shall cease to be subject to any restrictions which have been continued in force in relation to those shares under subsection (6).
457 Further provisions on sale by court order of restricted shares.
(1) Where shares are sold in pursuance of an order of the court under section 456(4) the proceeds of sale, less the costs of the sale, shall be paid into court for the benefit of the persons who are beneficially interested in the shares; and any such person may apply to the court for the whole or part of those proceeds to be paid to him.
(2) On application under subsection (1) the court shall (subject as provided below) order the payment to the applicant of the whole of the proceeds of sale together with any interest thereon or, if any other person had a beneficial interest in the shares at the time of their sale, such proportion of those proceeds and interest as is equal to the proportion which the value of the applicant’s interest in the shares bears to the total value of the shares.
(3) On granting an application for an order under section 456(4) or (5) the court may order that the applicant’s costs be paid out of the proceeds of sale; and if that order is made, the applicant is entitled to payment of his costs out of those proceeds before any person interested in the shares in question receives any part of those proceeds.
462 Power of incorporated company to create floating charge.
(1) It is competent under the law of Scotland for an incorporated company (whether a company within the meaning of this Act or not), for the purpose of securing any debt or other obligation (including a cautionary obligation) incurred or to be incurred by, or binding upon, the company or any other person, to create in favour of the creditor in the debt or obligation a charge, in this Part referred to as a floating charge, over all or any part of the property (including uncalled capital) which may from time to time be comprised in its property and undertaking.
(2)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) References in this Part to the instrument by which a floating charge was created are, in the case of a floating charge created by words in a bond or other written acknowledgment, references to the bond or, as the case may be, the other written acknowledgment.
(5) Subject to this Act, a floating charge has effect in accordance with this Part and Part III of the Insolvency Act 1986 in relation to any heritable property in Scotland to which it relates, notwithstanding that the instrument creating it is not recorded in the Register of Sasines or, as appropriate, registered in accordance with the Land Registration (Scotland) Act 1979.
(1) Where a company goes into liquidation within the meaning of section 247(2) of the Insolvency Act 1986, a floating charge created by the company attaches to the property then comprised in the company’s property and undertaking or, as the case may be, in part of that property and undertaking, but does so subject to the rights of any person who—
(a) has effectually executed diligence on the property or any part of it; or
(b) holds a fixed security over the property or any part of it ranking in priority to the floating charge; or
(c) holds over the property or any part of it another floating charge so ranking.
(2) The provisions of Part IV of the Insolvency Act (except section 185) have effect in relation to a floating charge, subject to subsection (1), as if the charge were a fixed security over the property to which it has attached in respect of the principal of the debt or obligation to which it relates and any interest due or to become due thereon.
(3) Nothing in this section derogates from the provisions of sections 53(7) and 54(6) of the Insolvency Act (attachment of floating charge on appointment of receiver), or prejudices the operation of sections 175 and 176 of that Act (payment of preferential debts in winding up).
(4) . . . interest accrues, in respect of a floating charge which after 16th November 1972 attaches to the property of the company, until payment of the sum due under the charge is made.
(1) Subject to subsection (2), the instrument creating a floating charge over all or any part of the company’s property under section 462 may contain—
(a) provisions prohibiting or restricting the creation of any fixed security or any other floating charge having priority over, or ranking pari passu with, the floating charge; or
(b) with the consent of the holder of any subsisting floating charge or fixed security which would be adversely affected, provisions regulating the order in which the floating charge shall rank with any other subsisting or future floating charges or fixed securities over that property or any part of it.
(1A) Where an instrument creating a floating charge contains any such provision as is mentioned in subsection (1)(a), that provision shall be effective to confer priority on the floating charge over any fixed security or floating charge created after the date of the instrument.
(2) Where all or any part of the property of a company is subject both to a floating charge and to a fixed security arising by operation of law, the fixed security has priority over the floating charge.
(3) The order of ranking of the floating charge with any other subsisting or future floating charges or fixed securities over all or any part of the company’s property is determined in accordance with the provisions of subsections (4) and (5) except where it is determined in accordance with any provision such as is mentioned in paragraph (a) or (b) of subsection (1).
(4) Subject to the provisions of this section—
(a) a fixed security, the right to which has been constituted as a real right before a floating charge has attached to all or any part of the property of the company, has priority of ranking over the floating charge;
(b) floating charges rank with one another according to the time of registration in accordance with Chapter II of Part XII;
(c) floating charges which have been received by the registrar for registration by the same postal delivery rank with one another equally.
(5) Where the holder of a floating charge over all or any part of the company’s property which has been registered in accordance with Chapter II of Part XII has received intimation in writing of the subsequent registration in accordance with that Chapter of another floating charge over the same property or any part thereof, the preference in ranking of the first-mentioned floating charge is restricted to security for—
(a) the holder’s present advances;
(b) future advances which he may be required to make under the instrument creating the floating charge or under any ancillary document;
(c) interest due or to become due on all such advances; . . .
(d) any expenses or outlays which may reasonably be incurred by the holder ;and
(e) (in the case of a floating charge to secure a contingent liability other than a liability arising under any further advances made from time to time) the maximum sum to which that contingent liability is capable of amounting whether or not it is contractually limited.
(6) This section is subject to Part XII and tosections 175 and 176 of the Insolvency Act.
465 Continued effect of certain charges validated by Act of 1972.
(1) Any floating charge which—
(a) purported to subsist as a floating charge on 17th November 1972, and
(b) if it had been created on or after that date, would have been validly created by virtue of the Companies (Floating Charges and Receivers) (Scotland) Act 1972,
is deemed to have subsisted as a valid floating charge as from the date of its creation.
(2) Any provision which—
(a) is contained in an instrument creating a floating charge or in any ancillary document executed prior to, and still subsisting at, the commencement of that Act,
(b) relates to the ranking of charges, and
(c) if it had been made after the commencement of that Act, would have been a valid provision,
is deemed to have been a valid provision as from the date of its making.
(1) The instrument creating a floating charge under section 462 or any ancillary document may be altered by the execution of an instrument of alteration by the company, the holder of the charge and the holder of any other charge (including a fixed security) which would be adversely affected by the alteration.
(2) Without prejudice to any enactment or rule of law regarding the execution of documents, such an instrument of alteration is validly executed if it is executed—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) where trustees for debenture-holders are acting under and in accordance with a trust deed, by those trustees ; or
(c) where, in the case of a series of secured debentures, no such trustees are acting, by or on behalf of—
(i) a majority in nominal value of those present or represented by proxy and voting at a meeting of debenture-holders at which the holders of at least one-third in nominal value of the outstanding debentures of the series are present or so represented; or
(ii) where no such meeting is held, the holders of at least one-half in nominal value of the outstanding debentures of the series; . . .
(3) Section 464 applies to an instrument of alteration under this section as it applies to an instrument creating a floating charge.
(4) Subsection (4A) applies to an alteration of a floating charge, where the alteration is one which—
(a) prohibits or restricts the creation of any fixed security or any other floating charge having priority over, or ranking pari passu with, the floating charge; or
(b) varies, or otherwise regulates the order of, the ranking of the floating charge in relation to fixed securities or to other floating charges; or
(c) releases property from the floating charge; or
(d) increases the amount secured by the floating charge.
(4A) Every alteration to a floating charge created by a company is, so far as any security on the company’s property or any part of it is conferred by the alteration, void against the liquidator or administrator and any creditor of the company, unless the documents referred to in subsection (4B) are delivered to the registrar for registration by the company or any person interested in the charge before the end of the relevant period allowed for delivery.
(4B) The documents referred to in subsection (4A) are—
(a) a certified copy of the instrument of alteration, and
(b) a statement of particulars including—
(i) the registered name and number of the company;
(ii) the date of creation of the charge;
(iii) a description of the instrument (if any) by which the charge was created or evidenced;
(iv) short particulars of the property or undertaking charged as set out when the charge was registered;
(v) date(s) of execution of the instrument of alteration;
(vi) names and address(es) of the persons who have executed the instrument of alteration.
(4C) In subsection (4A) “the relevant period allowed for delivery” is—
(a) the period of 21 days beginning with the day after the date of execution of the instrument of alteration, or
(b) if an order under section 859F(3) of the Companies Act 2006 (as applied by subsection (4E)) has been made, the period allowed by the order.
(4D) Subsection (4A) is without prejudice to any contract or obligation for repayment of the money secured by the alteration to the charge; and when an alteration becomes void under subsection (4A) the money secured by it immediately becomes payable.
(4E) Sections 859F, 859G, 859I, 859M and 859N of the Companies Act 2006 apply to an alteration to a floating charge to which subsection (4A) applies as they apply to a charge.
(4F) As applied by subsection (4E), those sections apply as if—
(a) references to the documents required or delivered under section 859A or 859B were to the documents referred to in subsection (4B);
(b) references to the period allowed for delivery under the section concerned were to the period referred to in subsection (4C)(a);
(c) references to the delivery of a certified copy of an instrument to the registrar for the purposes of Chapter A1 of Part 25 of the Companies Act 2006 were to the delivery of a certified copy of an instrument of alteration to the registrar for the purposes of this section;
(d) references to registration in accordance with a provision of Chapter A1 of Part 25 of the Companies Act 2006 were to registration in accordance with this section;
(e) references to a section 859D statement of particulars were to the statement of particulars referred to in subsection (4B)(b);
(f) references to registration under section 859A or 859B were to registration under this section;
(g) references to a statement or notice delivered to the registrar in accordance with Chapter A1 of Part 25 of the Companies Act 2006 were to a statement delivered to the registrar in accordance with subsection (4A).
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) Any reference (however expressed) in any enactment, including this Act, to a floating charge is, for the purposes of this section and unless the context otherwise requires, to be construed as including a reference to the floating charge as altered by an alteration falling under subsection (4) of this section.
(1) In this Part, unless the context otherwise requires, the following expressions have the following meanings respectively assigned to them, that is to say—
“ancillary document” means—
a document which relates to the floating charge and which was executed by the debtor or creditor in the charge before the registration of the charge in accordance with Chapter II or Part XII; or
an instrument of alteration such as is mentioned in section 466 in this Part;
“company”, . . . , means an incorporated company (whether a company within the meaning of this Act or not);
“fixed security”, in relation to any property of a company, means any security, other than a floating charge or a charge having the nature of a floating charge, which on the winding up of the company in Scotland would be treated as an effective security over that property, and (without prejudice to that generality) includes a security over that property, being;
a heritable security within the meaning of section 9(8) of the Conveyancing and Feudal Reform (Scotland) Act 1970 ; or
a statutory pledge within the meaning given by section 113(1) of the Moveable Transactions (Scotland) Act 2023;
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“Register of Sasines” means the appropriate division of the General Register of Sasines.
651 Power of court to declare dissolution of company void.
(1) Where a company has been dissolved, the court may . . . , on an application made for the purpose by the liquidator of the company or by any other person appearing to the court to be interested, make an order, on such terms as the court thinks fit, declaring the dissolution to have been void.
(2) Thereupon such proceedings may be taken as might have been taken if the company had not been dissolved.
(3) It is the duty of the person on whose application the order was made, within 7 days after its making (or such further time as the court may allow), to deliver to the registrar of companies for registration an office copy of the order.
If the person fails to do so, he is liable to a fine and, for continued contravention, to a daily default fine.
(4) Subject to the following provisions, an application under this section may not be made after the end of the period of two years from the date of the dissolution of the company.
(5) An application for the purpose of bringing proceedings against the company—
(a) for damages in respect of personal injuries (including any sum claimed by virtue of section 1(2)(c) of the Law Reform (Miscellaneous Provisions) Act 1934 (funeral expenses)), or
(b) for damages under the Fatal Accidents Act 1976 or the Damages (Scotland) Act 1976,
may be made at any time; but 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.
(6) Nothing in subsection (5) affects the power of the court on making an order under this section to direct that the period between the dissolution of the company and the making of the order shall not count for the purposes of any such enactment.
(7) In subsection (5)(a) “personal injuries” includes any disease and any impairment of a person’s physical or mental condition.
652 Registrar may strike defunct company off register.
(1) If the registrar of companies has reasonable cause to believe that a company is not carrying on business or in operation, he may send to the company by post a letter inquiring whether the company is carrying on business or in operation.
(2) If the registrar does not within one month of sending the letter receive any answer to it, he shall within 14 days after the expiration of that month send to the company by post a registered letter referring to the first letter, and stating that no answer to it has been received, and that if an answer is not received to the second letter within one month from its date, a notice will be published in the Gazette with a view to striking the company’s name off the register.
(3) If the registrar either receives an answer to the effect that the company is not carrying on business or in operation, or does not within one month after sending the second letter receive any answer, he may publish in the Gazette, and send to the company by post, a notice that at the expiration of 3 months from the date of that notice the name of the company mentioned in it will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved.
(4) If, in a case where a company is being wound up, the registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company are fully wound up, and the returns required to be made by the liquidator have not been made for a period of 6 consecutive months, the registrar shall publish in the Gazette and send to the company or the liquidator (if any) a like notice as is provided in subsection (3).
(5) At the expiration of the time mentioned in the notice the registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice of this in the Gazette; and on the publication of that notice in the Gazette the company is dissolved.
(6) However—
(a) the liability (if any) of every director, managing officer and member of the company continues and may be enforced as if the company had not been dissolved, and
(b) nothing in subsection (5) affects the power of the court to wind up a company the name of which has been struck off the register.
(7) A notice to be sent to a liquidator under this section may be addressed to him at his last known place of business; and a letter or notice to be sent under this section to a company may be addressed to the company at its registered office or, if no office has been registered, to the care of some officer of the company.
If there is no officer of the company whose name and address are known to the registrar of companies, the letter or notice may be sent to each of the persons who subscribed the memorandum, addressed to him at the address mentioned in the memorandum.
652A Registrar may strike private company off register on application.
(1) On application by a private company, the registrar of companies may strike the company’s name off the register.
(2) An application by a company under this section shall—
(a) be made on its behalf by its directors or by a majority of them,
(b) be in the prescribed form, and
(c) contain the prescribed information.
(3) The registrar shall not strike a company off under this section until after the expiration of 3 months from the publication by him in the Gazette of a notice—
(a) stating that he may exercise his power under this section in relation to the company, and
(b) inviting any person to show cause why he should not do so.
(4) Where the registrar strikes a company off under this section, he shall publish notice of that fact in the Gazette.
(5) On the publication in the Gazette of a notice under subsection (4), the company to which the notice relates is dissolved.
(6) However, the liability (if any) of every director, managing officer and member of the company continues and may be enforced as if the company had not been dissolved.
(7) Nothing in this section affects the power of the court to wind up a company the name of which has been struck off the register.
652B Duties in connection with making application under section 652A.
(1) A person shall not make an application under section 652A on behalf of a company if, at any time in the previous 3 months, the company has—
(a) changed its name,
(b) traded or otherwise carried on business,
(c) made a disposal for value of property or rights which, immediately before ceasing to trade or otherwise carry on business, it held for the purpose of disposal for gain in the normal course of trading or otherwise carrying on business, or
(d) engaged in any other activity, except one which is—
(i) necessary or expedient for the purpose of making an application under section 652A, or deciding whether to do so,
(ii) necessary or expedient for the purpose of concluding the affairs of the company,
(iii) necessary or expedient for the purpose of complying with any statutory requirement, or
(iv) specified by the Secretary of State by order for the purposes of this sub-paragraph.
(2) For the purposes of subsection (1), a company shall not be treated as trading or otherwise carrying on business by virtue only of the fact that it makes a payment in respect of a liability incurred in the course of trading or otherwise carrying on business.
(3) A person shall not make an application under section 652A on behalf of a company at a time when any of the following is the case—
(a) an application has been made to the court under section 425 on behalf of the company for the sanctioning of a compromise or arrangement and the matter has not been finally concluded;
(b) a voluntary arrangement in relation to the company has been proposed under Part I of the Insolvency Act 1986 and the matter has not been finally concluded;
(c) the company is in administration under Part II of that Act;
(ca) an application to the court for an administration order in respect of the company has been made and not finally dealt with or withdrawn;
(cb) a copy of notice of intention to appoint an administrator of the company under paragraph 14 of Schedule B1 to that Act has been filed with the court and neither of the events mentioned in paragraph 44(2)(a) and (b) of that Schedule has occurred;
(cc) a copy of notice of intention to appoint an administrator of the company under paragraph 22 of that Schedule has been filed with the court and neither of the events mentioned in paragraph 44(4)(a) and (b) of that Schedule has occurred;
(d) the company is being wound up under Part IV of that Act, whether voluntarily or by the court, or a petition under that Part for the winding up of the company by the court has been presented and not finally dealt with or withdrawn;
(e) there is a receiver or manager of the company’s property;
(f) the company’s estate is being administered by a judicial factor.
(4) For the purposes of subsection (3)(a), the matter is finally concluded if—
(a) the application has been withdrawn,
(b) the application has been finally dealt with without a compromise or arrangement being sanctioned by the court, or
(c) a compromise or arrangement has been sanctioned by the court and has, together with anything required to be done under any provision made in relation to the matter by order of the court, been fully carried out.
(5) For the purposes of subsection (3)(b), the matter is finally concluded if—
(a) no meetings are to be summoned under section 3 of the Insolvency Act 1986,
(b) meetings summoned under that section fail to approve the arrangement with no, or the same, modifications,
(c) an arrangement approved by meetings summoned under that section, or in consequence of a direction under section 6(4)(b) of that Act, has been fully implemented, or
(d) the court makes an order under subsection (5) of section 6 of that Act revoking approval given at previous meetings and, if the court gives any directions under subsection (6) of that section, the company has done whatever it is required to do under those directions.
(6) A person who makes an application under section 652A on behalf of a company shall secure that a copy of the application is given, within 7 days from the day on which the application is made, to every person who, at any time on that day, is—
(a) a member of the company,
(b) an employee of the company,
(c) a creditor of the company,
(d) a director of the company,
(e) a manager or trustee of any pension fund established for the benefit of employees of the company, or
(f) a person of a description specified for the purposes of this paragraph by regulations made by the Secretary of State.
(7) Subsection (6) shall not require a copy of the application to be given to a director who is a party to the application.
(8) The duty imposed by subsection (6) shall cease to apply if the application is withdrawn before the end of the period for giving the copy application.
(9) The Secretary of State may by order amend subsection (1) for the purpose of altering the period in relation to which the doing of the things mentioned in paragraphs (a) to (d) of that subsection is relevant.
652C Directors’ duties following application under section 652A.
(1) Subsection (2) applies in relation to any time after the day on which a company makes an application under section 652A and before the day on which the application is finally dealt with or withdrawn.
(2) A person who is a director of the company at the end of a day on which a person other than himself becomes—
(a) a member of the company,
(b) an employee of the company,
(c) a creditor of the company,
(d) a director of the company,
(e) a manager or trustee of any pension fund established for the benefit of employees of the company, or
(f) a person of a description specified for the purposes of this paragraph by regulations made by the Secretary of State,
shall secure that a copy of the application is given to that person within 7 days from that day.
(3) The duty imposed by subsection (2) shall cease to apply if the application is finally dealt with or withdrawn before the end of the period for giving the copy application.
(4) Subsection (5) applies where, at any time on or after the day on which a company makes an application under section 652A and before the day on which the application is finally dealt with or withdrawn—
(a) the company—
(i) changes its name,
(ii) trades or otherwise carries on business,
(iii) makes a disposal for value of any property or rights other than those which it was necessary or expedient for it to hold for the purpose of making, or proceeding with, an application under section 652A, or
(iv) engages in any other activity, except one to which subsection (6) applies;
(b) an application is made to the court under section 425 on behalf of the company for the sanctioning of a compromise or arrangement;
(c) a voluntary arrangement in relation to the company is proposed under Part I of the Insolvency Act 1986;
(d) an application to the court for an administration order in respect of the company is made under paragraph 12 of Schedule B1 to that Act;
(da) an administrator is appointed in respect of the company under paragraph 14 or 22 of that Schedule;
(db) a copy of notice of intention to appoint an administrator of the company under paragraph 14 or 22 of that Schedule is filed with the court;
(e) there arise any of the circumstances in which, under section 84(1) of that Act, the company may be voluntarily wound up;
(f) a petition is presented for the winding up of the company by the court under Part IV of that Act;
(g) a receiver or manager of the company’s property is appointed; or
(h) a judicial factor is appointed to administer the company’s estate.
(5) A person who, at the end of a day on which an event mentioned in any of paragraphs (a) to (h) of subsection (4) occurs, is a director of the company shall secure that the company’s application is withdrawn forthwith.
(6) This subsection applies to any activity which is—
(a) necessary or expedient for the purpose of making, or proceeding with, an application under section 652A,
(b) necessary or expedient for the purpose of concluding affairs of the company which are outstanding because of what has been necessary or expedient for the purpose of making, or proceeding with, such an application,
(c) necessary or expedient for the purpose of complying with any statutory requirement, or
(d) specified by the Secretary of State by order for the purposes of this subsection.
(7) For the purposes of subsection (4)(a), a company shall not be treated as trading or otherwise carrying on business by virtue only of the fact that it makes a payment in respect of a liability incurred in the course of trading or otherwise carrying on business.
652D Sections 652B and 652C: supplementary provisions.
(1) For the purposes of sections 652B(6) and 652C(2), a document shall be treated as given to a person if it is delivered to him or left at his proper address or sent by post to him at that address.
(2) For the purposes of subsection (1) and section 7 of the Interpretation Act 1978 (which relates to the service of documents by post) in its application to that subsection, the proper address of any person shall be his last known address, except that—
(a) in the case of a body corporate, other than one to which subsection (3) applies, it shall be the address of its registered or principal office,
(b) in the case of a partnership, other than one to which subsection (3) applies, it shall be the address of its principal office, and
(c) in the case of a body corporate or partnership to which subsection (3) applies, it shall be the address of its principal office in the United Kingdom.
(3) This subsection applies to a body corporate or partnership which—
(a) is incorporated or formed under the law of a country or territory outside the United Kingdom, and
(b) has a place of business in the United Kingdom.
(4) Where a creditor of the company has more than one place of business, subsection (1) shall have effect, so far as concerns the giving of a document to him, as if for the words from “delivered” to the end there were substituted “left, or sent by post to him, at each place of business of his with which the company has had dealings in relation to a matter by virtue of which he is a creditor of the company.”
(5) Any power to make an order or regulations under section 652B or 652C shall—
(a) include power to make different provision for different cases or classes of case,
(b) include power to make such transitional provisions as the Secretary of State considers appropriate, and
(c) be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(6) For the purposes of sections 652B and 652C, an application under section 652A is withdrawn if notice of withdrawal in the prescribed form is given to the registrar of companies.
(7) In sections 652B and 652C, “disposal” includes part disposal.
(8) In sections 652B and 652C and this section, “creditor” includes a contingent or prospective creditor.
(1) A person who breaches or fails to perform a duty imposed on him by section 652B or 652C is guilty of an offence and liable to a fine.
(2) A person who fails to perform a duty imposed on him by section 652B(6) or 652C(2) with the intention of concealing the making of the application in question from the person concerned is guilty of an offence and liable to imprisonment or a fine, or both.
(3) In any proceedings for an offence under subsection (1) consisting of breach of a duty imposed by section 652B(1) or (3), it shall be a defence for the accused to prove that he did not know, and could not reasonably have known, of the existence of the facts which led to the breach.
(4) In any proceedings for an offence under subsection (1) consisting of failure to perform the duty imposed by section 652B(6), it shall be a defence for the accused to prove that he took all reasonable steps to perform the duty.
(5) In any proceedings for an offence under subsection (1) consisting of failure to perform a duty imposed by section 652C(2) or (5), it shall be a defence for the accused to prove—
(a) that at the time of the failure he was not aware of the fact that the company had made an application under section 652A, or
(b) that he took all reasonable steps to perform the duty.
(1) Where a company makes an application under section 652A, any person who, in connection with the application, knowingly or recklessly furnishes any information to the registrar of companies which is false or misleading in a material particular is guilty of an offence and liable to a fine.
(2) Any person who knowingly or recklessly makes an application to the registrar of companies which purports to be an application under section 652A, but which is not, is guilty of an offence and liable to a fine.
653 Objection to striking off by person aggrieved.
(1) Subsection (2) applies if a company or any member or creditor of it feels aggrieved by the company having been struck off the register under section 652.
(2) The court, on an application by the company or the member or creditor made before the expiration of 20 years from publication in the Gazette of notice under section 652, may, if satisfied that the company was at the time of the striking off carrying on business or in operation, or otherwise that it is just that the company be restored to the register, order the company’s name to be restored.
(2A) Subsections (2B) and (2D) apply if a company has been struck off the register under section 652A.
(2B) The court, on an application by a notifiable person made before the expiration of 20 years from publication in the Gazette of notice under section 652A(4), may, if satisfied—
(a) that any duty under section 652B or 652C with respect to the giving to that person of a copy of the company’s application under section 652A was not performed,
(b) that the making of the company’s application under section 652A involved a breach of duty under section 652B(1) or (3), or
(c) that it is for some other reason just to do so,
order the company’s name to be restored to the register.
(2C) In subsection (2B), “notifiable person” means a person to whom a copy of the company’s application under section 652A was required to be given under section 652B or 652C.
(2D) The court, on an application by the Secretary of State made before the expiration of 20 years from publication in the Gazette of notice under section 652A(4), may, if satisfied that it is in the public interest to do so, order the company’s name to be restored.
(3) On an office copy of an order under subsection (2), (2B) or (2D) being delivered to the registrar of companies for registration the company to which the order relates is deemed to have continued in existence as if its name had not been struck off; and the court may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position (as nearly as may be) as if the company’s name had not been struck off.
654 Property of dissolved company to be bona vacantia.
(1) When a company is dissolved, all property and rights whatsoever vested in or held on trust for the company immediately before its dissolution (including leasehold property, but not including property held by the company on trust for any other person) are deemed to be bona vacantia and—
(a) accordingly belong to the Crown, or to the Duchy of Lancaster or to the Duke of Cornwall for the time being (as the case may be), and
(b) vest and may be dealt with in the same manner as other bona vacantia accruing to the Crown, to the Duchy of Lancaster or to the Duke of Cornwall.
(2) Except as provided by the section next following, the above has effect subject and without prejudice to any order made by the court under section 651 or 653.
655 Effect on s. 654 of company’s revival after dissolution.
(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 notwithstanding that an order may be made under section 651 or 653.
(2) Where such an order is made—
(a) it does not affect the disposition (but without prejudice to the order so far as it relates 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 interest therein, 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) Where a liability accrues under subsection (2) in respect of any property or right which, before the order under section 651 or 653 was made, had accrued as bona vacantia to the Duchy of Lancaster, the Attorney General of the Duchy shall represent Her Majesty in any proceedings arising in connection with that liability.
(4) Where a liability accrues under subsection (2) in respect of any property or right which, before the order under section 651 or 653 was made, 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.
(5) This section applies in relation to the disposition of any property, right or interest on or after 22nd December 1981, whether the company concerned was dissolved before, on or after that day.
656 Crown disclaimer of property vesting as bona vacantia.
(1) Where property vests in the Crown under section 654, the Crown’s title to it under that section may be disclaimed by a notice signed by the Crown representative, that is to say the Treasury Solicitor, or, in relation to property in Scotland, the Queen’s and Lord Treasurer’s Remembrancer
(2) The right to execute a notice of disclaimer under this section may be waived by or on behalf of the Crown either expressly or by taking possession or other act evincing that intention.
(3) A notice of disclaimer under this section is of no effect unless it is executed—
(a) within 12 months of the date on which the vesting of the property under section 654 came to the notice of the Crown representative, or
(b) if an application in writing is made to the Crown representative by any person interested in the property requiring him to decide whether he will or will not disclaim, within a period of 3 months after the receipt of the application or such further period as may be allowed by the court which would have had jurisdiction to wind up the company if it had not been dissolved.
(4) A statement in a notice of disclaimer of any property under this section that the vesting of it came to the notice of the Crown representative on a specified date, or that no such application as above mentioned was received by him with respect to the property before a specified date, is sufficient evidence of the fact stated, until the contrary is proved.
(5) A notice of disclaimer under this section shall be delivered to the registrar of companies and retained and registered by him; and copies of it shall be published in the Gazette and sent to any persons who have given the Crown representative notice that they claim to be interested in the property.
(6) This section applies to property vested in the Duchy of Lancaster or the Duke of Cornwall under section 654 as if for references to the Crown and the Crown representative there were respectively substituted references to the Duchy of Lancaster and to the Solicitor to that Duchy, or to the Duke of Cornwall and to the Solicitor to the Duchy of Cornwall, as the case may be.
(1) Where notice of disclaimer is executed under section 656 as respects any property, that property is deemed not to have vested in the Crown under section 654.
(2) As regards property in England and Wales section 178(4) and sections 179 to 182 of the Insolvency Act shall apply as if the property had been disclaimed by the liquidator under the said section 91 immediately before the dissolution of the company.
(3) As regards property in Scotland, the following 4 subsections apply.
(4) The Crown’s disclaimer operates to determine, as from the date of the disclaimer, the rights, interests and liabilities of the company, and the property of the company, in or in respect of the property disclaimed; but it does not (except so far as is necessary for the purpose of releasing the company and its property from liability) affect the rights or liabilities of any other person.
(5) The court may, on application by a person who either claims an interest in disclaimed property or is under a liability not discharged by this Act in respect of disclaimed property, and on hearing such persons as it thinks fit, make an order for the vesting of the property in or its delivery to any persons entitled to it, or to whom it may seem just that the property should be delivered by way of compensation for such liability, or a trustee for him, and on such terms as the court thinks just.
(6) On such a vesting order being made, the property comprised in it vests accordingly in the person named in that behalf in the order, without conveyance or assignation for that purpose.
(7) Part II of Schedule 20 has effect for the protection of third parties where the property disclaimed is held under a lease.
658 Liability for rentcharge on company’s land after dissolution.
(1) Section 180 of the Insolvency Act shall apply to land in England and Wales which by operation of law vests subject to a rentcharge in the Crown or any other person on the dissolution of a company as it applies to land so vesting on a disclaimer under that section.
(2) In this section “company” includes any body corporate.