IP-2023-000120 - [2025] EWHC 1793 (IPEC)

To revest company assets which have passed bona vacantia to the Crown there are two broad options: restore the company or apply to vest the assets. Both require a court order. The alternative is to buy the assets from the Crown.

Once a dissolved English company is restored to the register it is deemed to have continued in existence as if it had not been dissolved. Its assets which were vested bona vacantia will generally be treated as having revested in the restored company unless they have otherwise been disposed of by sale or a vesting order (s.1028(1) and s.1032(1) CA 2006). When a restoration order is made the court will give such directions as seem just in relation to that restored company including for example limiting the purpose for which it is restored, how it is to be restored, or the time period for which it can be restored. The BVD will require undertakings from the party restoring the company.

Because restoration deems the company to have continued in existence it can create some unexpected difficulties. Section1032 CA 2006 provides scope for the restoring party to seek broader directions. Section 1032(3) CA 2006 provides:

“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.”

In County Leasing Asset Management Ltd and ors v Hawkes [2015] EWCA Civ 1251 Briggs LJ as he then was provided helpful guidance about its use at [28] to [33]. Section 1032 CA 2006 may in principle provide scope to seek a direction to ratify some act taken by or on behalf of the dissolved company during the period of its dissolution. In some cases, it can enable the court to provide a limitation direction where limitation may have expired during the period of dissolution. But such a direction requires the court to be satisfied that there are exceptional circumstances. The court would consider what it was being asked to do and why and all the circumstances including whether the dissolution was deliberate and the position as against third parties to achieve the balance recognised in the wording of s.1032(3).

However, if the assets of the dissolved company are in fact held on trust for the benefit of another party, they do not vest in the Crown on dissolution (s.1012 (1) CA 2006). Whilst they are still held by/pass to the Crown, a third party can apply for a vesting order. The most common examples relate to real property but the need for a vesting order is not limited to real property. Where the property is not real property the most common course would be to apply for a vesting order under s.51 Trustee Act 1925 (“TA 1925”) to vest the legal title of the asset in that third party. On any vesting application the court would exercise its power to do justice in all the circumstances.

If therefore NHBCL had acquired the beneficial interest in the Trade Mark prior to the dissolution of the Restored Company, the proper course was to apply for a vesting order.

If instead NHBCL’s interest as pleaded was a bare licence and/or permission to use the Trade Mark neither have the characteristics or substance of a beneficial interest that would have entitled NHBCL to have applied for a vesting order. NHBCL/CA/NC-S would have been left with the option of restoring the Restored Company or to seeking to buy any relevant rights from the Crown.

Consistent with that Briffa wrote to the BVD on behalf of NC-S on 10 January 2023. They explained that NC-S was the director of the Restored Company and:

“Our client has and continues to use the Mark in the course of business as a sole trader. Therefore, our client wishes to protect her business and her brand by assigning the Mark which was previously the property of her company. Our client wishes to assign the Mark to herself in her personal capacity.”

This explanation was inconsistent with the submission that the Trade Mark had been/was intended to be assigned to NHBCL in 2017 and/or the existence of any beneficial interest that would have entitled NHBCL to apply for a vesting order. It was entirely consistent with the Application which sought to restore the Restored Company for the purposes of transferring the Trade Mark to NC-S personally. The reference to NC-S using it as a sole trader in connection with her own business appears to be inaccurate.

Briffa did not tell the BVD that the Trade Mark had been assigned to CA or NHBCL or that it was held on trust by the Restored Company at the time of dissolution. They did not explain that there was a joint venture (as pleaded) and that entitled NHBCL to the Trade Mark on some basis. NC-S sought to distance herself from the contents of the letter to the BVD explaining that she was working for CA.

On 30 January 2023, the BVD explained that it had received interest in the Trade Mark from another party so there would have to be a bidding process. The Claimants did not assert that the Crown held the Trade Mark on trust for the benefit of NHBCL and did not apply for a vesting order, instead they made the Application.

The Application was made pursuant to s.1029 CA 2006 by NC-S as director and shareholder. Consistent with the January 2023 letter to the BVD, the Application and evidence in support sought to restore the Restored Company in order to transfer property and legal title (of the Trade Mark) from the Restored Company to NC-S.The Application and the Briffa correspondence is inconsistent with NHBCL holding the beneficial interest in the Trade Mark and/ or there having been a transfer of the business as a whole.

On 6 April 2023, Mr Staveley of Briffa confirmed in a witness statement that:

“5.

The specific asset of the [Restored Company] which [NC-S] wishes to acquire is [the Trade Mark] for the registered series trade mark “THE NOTTING HILL SHOPPING BAG.” in the name of the Company (“the Mark”). …

(a)

In addition, the Claimant wishes to acquire any and all goodwill associated with Mark, whether registered or unregistered;

(b)

In addition, any and all copyright subsisting in the Mark”

At paragraph 6 of that witness statement, he confirmed that the purpose of the restoration was to enable NC-S to assign those rights to herself. Mr Staveley believed that the goodwill associated with the Trade Mark/ the Logo had also passed bona vacantia.

As is common in restoration proceedings, the BVD required undertakings to be given on behalf of NC-S. These were:

“(A)

the Company will not carry on business or operate in any way other than to take the necessary steps to:

(i)

assign from its ownership the UK Trademark for the Mark ‘The Notting Hill Shopping Bag’ registered with the UK Intellectual Property Office under Trademark Number UK00003004468 referred to in paragraphs 5 and 6 of the Second Witness Statement of Thomas Staveley dated the 6 April 2023 and

(ii)

settle all outstanding debts to its existing creditors, if any (the actions) according to law

(B)

the Claimant will notify the Registrar of Companies immediately on the conclusion of the actions

(C)

the director of the Company will immediately on the expiry of 3 months from the conclusion of the actions apply to the Registrar of Companies for the voluntary strike off of the Company under Section 1003 of the Companies Act 2006 and comply with all the relevant requirements for such an application

These undertakings are required in view of paragraph 5 of the evidence in support of the Application from which it appears that the sole purpose for seeking restoration is for the company to assign its trademark ownership registered with the UK Intellectual Property Office”.

The undertakings were incorporated into the restoration order on 7 September 2023. The restoration order itself was simply an order that the Restored Company be restored to the register. Such assets as the Crown still held bona vacantia for the Restored Company revested in it when the restoration order was registered on 12 October 2023.

If the Trade Mark had been an asset of the Restored Company on 12 October 2023, it would then have revested in the Restored Company without further order. However, the Trade Mark had expired on 2 May 2023.