s 1032 of the Companies Act 2006

In Davy v Pickering & Ors [2015] EWHC 380 (Ch) the case concerned a company which had been struck off the companies register and dissolved. The Claimant had been a pilot for British Airways and after leaving transferred £610,398 out of his occupational pension to a private pension which he said he did on advice given negligently by the First Defendant for the company in 2001 and because of this advice incurred huge losses.

The Claimant applied under a part 8 claim form to have the company reinstated to the companies register under s 1032 of the Companies Act 2006 and applied to the court for directions in respect of the limitation period applicable.

Under Section 1029 an application may be made to the court to restore to the register a company that has been struck off the register, whether or not the company has in consequence been dissolved. An application under this section can be made by any person with a potential legal claim against the company, or any person who was a creditor of the company at the time of striking off or dissolution.

Under Section 1030 in making that decision the court must have regard to its power under section 1032(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.

Section 1031 gives a general discretion if the court considers it just to do so.

Under Section 1032 the general effect is that the company is deemed to have continued in existence as if it had not been dissolved or struck off the register. The court may give such directions and provision as seems just for placing the company and all other persons in the same position as if the company had not been dissolved or struck off the register or as far as it is able to do so.

On 28 July 2011 the Claimant made a complaint to the Financial Ombudsman Service (FOS). On 28 July 2011 FOS wrote to Mr Pickering (P) the Director to inform him that it had received a complaint from the Claimant against the Company regarding the alleged mis-selling of a drawdown pension.

On 21 September 2011 P wrote to the Claimant, confirming that the Company had received the complaint and that it was looking into it and requesting details of the grounds of the complaint.

On 26 October 2011 the FOS wrote to P in respect of the complaint, enclosing the complaint and requesting that the Company submit a statement of its case, documentation and any evidence on which it wished to rely before 9 November 2011.

On 17 November 2011 Mrs Pickering on behalf of the Company applied to the Registrar of Companies for the Company to be struck off the register pursuant to section 1003 of the Companies Act 2006.

The Claimant alleged he was not provided with notice of the application as a creditor of the Company under section 1006(1) of Act.

The application was advertised in the Gazette, but the Claimant said he wasn’t aware of the advertisement as if he had been he would have objected. The Company was struck off the register on 20 March 2012 and was dissolved.

The Claimant wished to bring a claim for damages against the Company, arising from alleged negligent investment advice given to him by the Company in 2001. He alleged that he first had the knowledge for the purposes of section 14A of the Limitation Act 1980, when he received advice from another financial adviser on 19 July 2011.

On July 1st 2014 District Judge James ordered that the company be restored to the companies register under a new name as its previous name was now unavailable. The Claimant further requested directions from the court, so as to avoid any disagreement, as to when the limitation period ran in order that the period from when the company was dissolved to when it was restored did not form part of that time period. The District Judge adjourned this aspect for consideration.

On the 30th January 2015 the matter came before HH Judge Keyser QC in the High Court Chancery Division.The Claimant wanted the company wound up so a liquidator could claw back the assets of the company. As the transactions in question had taken place more than two years’ previously, the Claimant sought a direction that his winding up petition would be deemed to have been presented on the date of the company’s dissolution.

HHJ Keyser noted the point made on behalf of the Claimant that his opportunity to issue an earlier claim was taken away from him once the company had been dissolved. He considered the Claimant might have had an opportunity to establish the merits of his claim to the satisfaction of the FOS and been able to present the petition and bring the claim that would underpin such a petition the directors of the company were aware of the Claimant’s complaint. They did not give the notice that was required to strike the company off the register, did not respond effectively to his complaint and by the company being dissolved, this caused the Claimant delay in establishing his claim.

The Claimant further pointed out that the crux of the matter was not only whether the Claimant would have applied for a petition to wind up the company but had he been prevented from doing so. He contended that if there wasn’t any objection to the directions that the Claimant wanted then his position would be more desirable than it would have been had the company not been dissolved.

The Claimant wanted a direction from the court that the date of his winding up petition is the same date as when the company was dissolved. The court granted this request and retrospectively dated the insolvency of the Company which then allowed the Liquidator to act on the reviewable transaction provisions under the Insolvency Act 1986 and, assisted the Claimant as creditor circumstances where the company had been dissolved knowing that the Claimant had a possible claim.

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