Section 216 of The Insolvency Act 1986 - Phoenix Company - Reuse of prohibited name
Phoenix Company Insolvency Law
Where a phoenix company is set up following the liquidation of the original company, there are strict legal rules concerning the re-use of the liquidated company's name which is classed in law as a "prohibited name". Phoenix company law is set out at Sections 216 and 217 of The Insolvency Act 1986 and the exceptions to those Sections are found in The Insolvency (England & Wales) Rules 2016.
Section 216 of The Insolvency Act 1986 addresses the reuse of company name aspect of phoenix companies and states (word for word):
(1) This section applies to a person where a company ("the liquidated company") has gone into insolvent liquidation on or after the appointed day and he was a director or shadow director of the company at any time in the period of 12 months ending with the day before it went into liquidation.
(2) For the purposes of this section, a name is a prohibited name in relation to such a person if:-
(a) it is a name by which the liquidating company was known at any time in the period of 12 months, or
(b) it is a name which is so similar to a name falling within paragraph (a) as to suggest an association with that company.
(3) Except with leave of the court or in such circumstances as may be prescribed, a person to whom this section applies shall not at any time in the period of 5 years beginning with the day on which the liquidating company went into liquidation:-
(a) be a director of any other company that is known by a prohibited name, or
(b) in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of any such company, or
(c) in any way, whether directly or indirectly, be concerned or take part in the carrying on of a business carried on (otherwise than by a company) under a prohibited name.
(4) If a person acts in contravention of this section, he is liable to imprisonment or a fine or both.
(5) In subsection (3) "the court" means any court having jurisdiction to wind up companies; and on an application for leave under that subsection, the Secretary of State or the official receiver may appear and call the attention of the court to nay matters which seem to him to be relevant.
(6) References in this section, in relation to any time, to a name by which a company is known are to the name of the company at that time or to any name under which the company carries on business at that time.
(7) For the purposes of this section a company goes into insolvent liquidation if it goes into liquidation at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up.
(8) In this section "company" includes a company which may be wound up under Part V of this Act.
Section 217 of the Insolvency Act 1986, states:-
(1) A person is personally responsible for all the relevant debts of a company if at any time -
(a) in contravention of section 216, he is involved in the management of the company, or
(b) as a person who is involved in the management of the company, he acts or is willing to act on instructions given (without the leave of the court) by a person whom he knows at that time to be in contravention in relation to the company of section 216.
(2) Where a person is personally responsible under this section for the relevant debts of a company, he is jointly and severally liable in respect of those debts with the company and any other person who, whether under this section or otherwise, is so liable.
(3) For the purpose of this section the relevant debts of a company are-
(a) in relation to a person who is personally responsible under paragraph (a) of subsection (1), such debts and other liabilities of the company as are incurred at a time when that person was involved in the management of the company, and
(b) in relation to a person who is personally responsible under paragraph (b) of that subsection, such debts and other liabilities of the company as are incurred at a time when that person was acting or was willing to act on instructions given as mentioned in that paragraph.
(4) For the purposes of this section, a person is involved in the management of a company if he is a director of the company or if he is concerned, whether directly or indirectly, or takes part, in the management of the company.
(5) For the purposes of this section a person who, as a person involved in the management of a company, has at any time acted on instructions given (without the leave of the court) by a person whom he knew at that time to be in contravention in relation to the company of section 216 is presumed, unless the contrary is shown, to have been willing at any time thereafter to act on any instructions given by that person.
(6) In this section "company" includes a company which may be wound up under Part V.
In summary Sections 216 and 217 of The Insolvency Act 1986 prescribe that a director can be imprisoned, fined and made personally liable for debts if he breaches those Sections by wrongly reusing a prohibited name.
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