Friday 25 September 2015

UK: Scotland: Crown disclaimer and the effect of a court order for restoration to the register

The opinion of the Court of Session (Inner House) in ELB Securities Ltd v Love [2015] CSIH 67 was delivered earlier this month by Lady Paton (sitting with Lady Smith and Sheriff Principal Stephen QC). The case, which is now a leading authority, concerned the operation of section 1032 of the Companies Act 2006 and, in particular, its relationship with other sections within Chapter 3, Part 31, of the Act. Section 1032 sets out the general effect of an order for restoration to the register of companies: "the company is deemed to have continued in existence as if it had not been dissolved or struck off the register".

The case concerned a company that had been dissolved and struck off the register on 14 June 2013. On this date, under section 1012, the rights it had enjoyed under a lease vested in the Crown as bona vacantia but, on 15 July 2013, the Queen's and Lord Treasurer's Remembrancer - acting for the Crown - disclaimed the lease under section 1013. A few months later the company was restored to the register and at issue was the status of the earlier disclaimer: was the effect of the section 1032 order that the company retained an interest in the lease as if the disclaimer had not occurred?

Lady Paton stated that section 1032 "merely provides for the general approach ... but that general approach must give way to the specific and detailed provisions concerning the company's property as set out in section 1012 to 1014 and 1020 to 1022" (para. [26]). In her opinion, the company's rights in the lease ended on 15 July 2013 and, when the company was restored to the register, it no longer had any rights under the lease. To hold that the statutory scheme provided otherwise would, she said, lead to "uncertainty and confusion in the commercial world" (para. [28]).

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