A company that has been struck off and dissolved after 1 January 2023 now requires a court application to be restored. The aim of this briefing is to shed light on that court application process. First, however, it is important to distinguish the timeframes of the old rules from the new.
Strike off procedure under the previous BCA
Under the BVI Business Companies Act (Revised 2020) (the "previous BCA"), the notice period that the Registrar was required to give a company to indicate an intention to strike off the Register of Companies (the "Register") was 30 days.
There was then a seven year period during which a company could be struck off before it was dissolved. During that period, the company could not (among other things) commence or defend legal proceedings, continue any business or in any way deal with the assets of the company. Within that seven year period, the Registrar could restore the company to the Register upon receipt of an application, the filing of a copy of the register of directors, payment of the restoration fee and payment of all outstanding fees and penalties.
Once that seven year period lapsed, the company was dissolved, and the only way the company could be restored was to issue a fixed date claim before the BVI High Court (the "Court") within 10 years of the date of its dissolution.
However, the rules have now changed.
Strike off procedure under the Amendment Act
The BVI Business Companies (Amendment) Act 2022 (the "Amendment Act") came into force on 1 January 2023, significantly shifting the landscape of strike off, dissolution and subsequently the restoration of BVI companies.
To facilitate a smooth transition, the Amendment Act provided transitional provisions for companies which were struck off before 1 January 2023, but these have now expired.
The process of strike off and dissolution now (in essence) happens simultaneously, as a struck off company will be dissolved automatically on the date that the Registrar publishes a notice of its striking off in the Gazette.
Under the Amendment Act, the Registrar can strike off a company at any time within 90 days of publishing the notice in the Gazette. The date of strike off would be specified in this notice.
If a company is struck off (and dissolved) under the new regime, any potential claimant has a maximum of five years running from the date of dissolution to bring a fixed date claim for restoration (for ease, we shall refer to this as a restoration application). This period may be less than five years if the company was dissolved under the old procedure and less than five years are left to run under the previous time limit.
The restoration application is made by way of a Fixed Date Claim Form, in line with the ECSC CPR 8.1 (1) and (5).
The documents that are needed to support the Fixed Date Claim Form include:
- affidavit evidence; and
- a draft order.
Establishing the claimant's standing
Any person making an application to restore a company needs to have standing. The categories of claimants who are entitled to make the application are prescribed in the Amendment Act. These are:
- a creditor of the company;
- a former director of the company;
- a former member of the company;
- a former liquidator of the company;
- a person who, but for the company’s dissolution, would have been in a contractual relationship with the company;
- a person with a potential legal claim against the company;
- a manager or trustee of a pension fund established for the benefit of employees of the company;
- the Attorney General or any other competent authority in the BVI; or
- any person who can establish an interest in having the company restored to the Register.
In Trade Management Ltd v The Registrar of Corporate Affairs BVIHC (COM) 2021/0219, Jack, J., considered the meaning of a person who can establish an interest in having the company restored to the Register. He held that "[a]ll that is required is an interest in the Company, which will exist after restoration; it is not necessary that the interest be specifically in the Company's restoration".
It should be noted that the Court will require evidence of the claimant's status and/or interest to establish standing.
Purpose of restoration
There are two main purposes for restoration under the Amendment Act, namely:
- to initiate, continue or discontinue legal proceedings in the name of or against the company; or
- to make an application for the company's property that has vested in the Crown bona vacantia to be returned to the company.
Claimants will need to provide evidence on affidavit to demonstrate the purpose of the restoration.
The Court also has what appears to be a broader discretion to restore a company to the Register if it deems it just and fair to do so. The exact limits of this discretion are unclear (see below). However, in exercising its discretion, the Court is likely to consider the facts, natural justice and the public interest.
Financial Secretary's consent to restoration and service of application notice
Written consent (or objection) of the Financial Secretary, to the company's restoration to the Register is needed for the restoration application.
However, if the Financial Secretary does not respond to a request for consent to the company's restoration within a period of seven days, the claimant can make a declaration instead to this effect.
Thereafter, notice of the application should be filed with the Financial Secretary, the registrar of companies and (where the company was regulated under the Financial Services Act) the Financial Services Commission.
Registered agent
There is also a requirement to obtain written confirmation from a registered agent (either the previous agent, or a new one) that:
- it agrees to act as the registered agent of the company if the Court orders the restoration; and
- the registered agent has updated the company's records.
This is an essential step that the Court will have keen consideration of before making an order to restore the company to the Register.
Discretion of the Court to grant the restoration
In our experience, it is also helpful for the application to address the Court's discretion to grant the order.
In Global Diversity Opportunity II Ltd v Registrar of Corporate Affairs BVIHC (COM) 2020/0176, Jack, J., established that the Court always has the discretion to restore a company and that this discretion is always fact-sensitive. He explained that such discretion is exercised when the Court has taken all the relevant factors into account.
Further, in Trade Management Ltd v The Registrar of Corporate Affairs BVIHC (COM) 2021/0219, Jack, J., held that deciding whether to restore a company involves a two-step process. First, the Court must consider whether the claimant has standing. Secondly, if so, the Court has to exercise its discretion under the Amendment Act.
In that case Jack, J., considered several factors which he found militated in favour of restoring the company. These were:
- the assets held by the company;
- the reason leading to the failure to pay the registration fees; and
- that the shareholders of the company supported the claimant's application.
Conclusion
Bedell Cristin's litigation team in the BVI has considerable experience of applications to restore struck off and dissolved companies and it would be our pleasure to assist you. If you have any queries, please get in touch with your Bedell Cristin contact or one of the contacts listed.
