Disclaimer, restoration and a gap in the law


Mark Warwick QC along with Rudi Ramdarshan and Jonathan Chan from Ronald Fletcher Baker have written an article for Estates Gazette following the recent case of Trident Nominees (IOM) Ltd and Others v Shaftsbury Properties Ltd and Others. This case involved provision for restoring disclaimed leases to their rightful owners. The case examined whether there is a lacuna in the law when there is a common law disclaimer of the assets of offshore companies, rendering such assets as lost.

This case concerned a company incorporated in the Isle of Man, therefore not covered by the statutory protections under the Companies Act 2006. They faced losing a 999-year lease of premises in Camden, valued in excess of £2m. Due to an administrative oversight the company was struck off the register, which left the lease therefore vested in the Crown as bono vacantia. If the company had been incorporated in England or Wales by the ‘as you were’ provisions, post restoration, the company would have been treated as if it had not been dissolved.

There has been no decision addressing this situation until now but shortly before the trial the parties compromised the dispute and the settlement of the case means there is still no reported decision on the matter. In this case all parties agreed except the freeholder (who did not oppose) that on being restored to the register the lease should continue as if the company had never been dissolved and the lease reverted. Following analysis of the submissions and other documents Master Pester was satisfied it was proper to make the declaration.

The full case analysis can be found in the March Edition of Estates Gazette.