A subsequent decision in the English courts, Re Fivestar Properties Ltd, was to the effect that the restored company could get its assets back, despite a Crown disclaimer. So we now have different decisions north and south of the border.
Prestwick Hotels Limited ("PHL") occupied office premises under a lease from their landlords, ELB Securities Limited ("ELB"). As a result of a failure to lodge accounts and to comply with other statutory requirements, PHL were struck from the Companies Register in June 2013. Following a successful petition to the Sheriff Court, PHL were subsequently restored to the Register on the basis that the failure to comply with their statutory requirements was simply an administrative oversight, and the company was solvent and continuing to trade.
However, in the interim, ELB had raised an action to remove PHL from their premises, claiming that the lease had come to an end as a result of PHL's dissolution and the Crown disclaimer.
PHL argued that their restoration meant that the lease continued on an "as you were" basis and they were therefore entitled to remain in occupation.
The court had to decide the status of the lease.
The Companies Act and the effect of dissolution
The Companies Act 2006 provides that when a company is dissolved, its assets go to the Crown - but the Crown is entitled to "disclaim" or reject the assets. At the point of a Crown disclaimer, the assets become ownerless but third parties are entitled to petition the court to claim title. There is however another provision in the 2006 Act which says that the general effect of a restoration order is that the restored company is deemed to have continued in existence as if it had not been dissolved or struck off the register.
In the Scottish case, following the dissolution of PHL, the Crown (in the form of the Queen's and Lord Treasurer's Remembrancer) disclaimed the lease interest in July 2013. PHL were restored to the register in October 2013 - after the Crown had disclaimed the asset.
The Scottish court decided that the disclaimer extinguished the right of the Crown to the asset (i.e. the interest under the lease), but also extinguished the right of the dissolved company to the same asset. As there was no tenant, the Lease ended at the instant of the Crown disclaimer - and the Landlord was entitled to remove PHL from its occupation. The restoration of PHL, after the disclaimer, could not have the effect of resurrecting the lease.
Just ten days after the decision in the Scottish case, the High Court in England issued its judgement in Re Fivestar Properties Ltd. This case had almost identical facts, including the timing of the Crown disclaimer ie before the company was restored to the register. The different circumstance in the English case was that the property interest of the dissolved company was a freehold, not a leasehold, title.
The High Court took a different approach to that of the Scottish court and decided that the restoration of the company had the impact of retrospectively recreating and re-vesting the freehold interest. No mention was made of the Scottish decision in this later English case - probably because the English court was unaware of the earlier (conflicting) decision.
It is possible to distinguish the two cases on the basis that one involved the interest under a lease, and the other an interest of outright ownership. However, as it stands, the two cases set up a divergence of views north and south of the border as to the effect of a disclaimer by the Crown. It will be interesting to see how this develops.