UK business statistics

As I have previously discussed with colleagues, it can be difficult to find information on numbers of partnerships and other UK businesses.  The main source is the Business Population Estimates, which is published annually  - latest edition at https://www.gov.uk/government/statistics/business-population-estimates-2018 - and information on methodology at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746602/OFFICIAL_SENSITIVE_-_BPE_2018_-_methodology_note_FINAL_FINAL.pdf

 

The House of Commons Library has now published a useful statistical analysis at

http://researchbriefings.files.parliament.uk/documents/SN06152/SN06152.pdf

Consultation on the reform of UK limited partnerships: government response published

The UK government's response to the consultation on the Reform of Limited Partnerships has been published at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/762849/government-response-limited-partnerships.pdf

The consultation resulted from concerns that limited partnerships in the UK and in particular in Scotland (where partnerships have legal personality, which they do not in England and Wales or Northern Ireland) were being used to facilitate international money laundering and other illegal activities.

The government now proposes the following:

* applicants to register LPs must demonstrate that they are registered with an anti-money laundering (AML) supervisory body, and applications from overseas will be subject to equivalent standards - although the government is still considering how this might be achieved.

* LPs will need to demonstrate an ongoing link with the UK in the form of a principal place of business in the UK, a legitimate business activity in the UK, or continuing engagement with a UK AML supervisory body.

* all UK LPs will have to file an annual confirmation statement (rather than, as at present, only certain Scottish partnerships). This will include additional information not currently required to be registered, such as the date of birth and nationality of all partners.

* the Registrar will be given power to strike off LPs which have dissolved or are not carrying on business.

It is not clear whether the government intends to apply to the requirement to register Persons with Significant Control (PSC) over the partnership to all LPs (rather than, as at present, only certain Scottish partnerships).

The government has rejected the possibility of all partnerships having to file accounts (rather than, as at present, only those whose general partners are all either limited companies or unlimited companies/Scottish partnerships whose members are all limited companies).

The response states that the government will legislate "when Parliamentary time allows" - but when that will be is anyone's guess, given the ongoing Brexit shenanigans

Updated Conference programme, abstracts and speaker biographies

The updated programme and some of the abstracts and speaker biographies are now available on the Forum website (under the 2019 Conference heading at the right-hand side of the page).  Remaining abstracts and biographies will be added as they are received, and any changes to the programme.

Attention all Forum members!

I'd also like to advertise publications by speakers and indeed other members of the Partnership, LLP and LLC Law Forum at our forthcoming conference on 10 January 2019 - I hope to have a table with copies of books and possibly journal articles and flyers for forthcoming books. Ditto information about forthcoming events and publications in related fields (eg company law, tax law, accountancy, business studies, economic theory etc) and in the UK or elsewhere.

If there is anything you would like to be made available on the day for members and other delegates to peruse, please let me know - including journal articles, which can often be poorly advertised or difficult to obtain. 

Many of you will already be familiar with each other's works - but we endeavour to make the Forum as inclusive as possible and so have members (and conference delegates) from a wide area of expertise, and I think it would be nice to showcase what Forum members do and help to exchange knowledge resources.

Please feel free to give me the appropriate journal citation/URL and I will print a copy off for the display table, or publication details and I will contact the publisher.

Thank you!

Conference update!

Exciting news that the Hon. Mr Justice Michael Twomey will be opening the conference proceedings!

Mr Justice Twomey is an Irish judge, solicitor, lecturer and author of Twomey on Partnership, the second edition of which is due to be published by Bloomsbury in December 2018.

Conference Registration Now Open: The Regulation of Partnerships and Closely-Held Corporations

We invite you to register for the second annual conference of the Partnership, LLP and LLC Law Forum, which is being held jointly with Nottingham Law School’s Centre for Business and Insolvency Law.

Registration is now open, and we look forward to welcoming you to the Forum's second one day conference exploring developments and areas of debate in the law and practice relating to partnerships and closely-held corporations.

Date: 10 January 2019, 10am - 4.00pm (registration from 9.30am)

Venue: Newton Building, City Campus, Nottingham Trent University

Confirmed papers include:

Professor David Milman (University of Lancaster) - The Partnership Influence Upon Corporate Law
Gary Wilson (Nottingham Law School) - Bovill’s Act 1865: much ado about nothing?
Jeremy Callman (Ten Old Square, Lincoln’s Inn) – Issues that arise in partner/LLP member exits – a practitioner’s eye view
Stephen Chan (Harper Macleod LLP, Edinburgh, and author of A Practical Guide to Partnership Law in Scotland)) – Scottish partnerships and how they differ from English partnerships
Elspeth Berry and Professor Rebecca Parry (Nottingham Law School) – The Application of Corporate and Individual Insolvency Law to Partnerships and LLPs
Professor Rebecca Parry – The Shifting Balance of Power in UK Insolvencies
Richard Smith (freelance journalist) - Abuse of UK Limited Partnerships and the Outlook for Reform

Attending the Conference
•    All those interested in the issues are very welcome to attend the conference, including academics, practitioners and postgraduate students.
•    To register for the conference please visit our online store at https://www.ntu.ac.uk/about-us/events/events/2019/01/partnership,-llp-and-llc-law-forum-and-nottingham-law-school-centre-for-business-and-insolvency-law-joint-conference
•    There is a conference fee of £20 payable via the online store.
•    There will be lunch provided, as well as tea/coffee and refreshments at registration and during the morning and afternoon breaks. If you have any special dietary requirements please notify us.
•    If you have any special requirements to enable you to participate more comfortably, please let us know and we will do our very best to meet them.

Book Review: Stephen Chan, A Practical Guide to Partnership Law in Scotland

A Practical Guide to Partnership Law in Scotland, Stephen Chan (W Green 2018), 250pp, hardback, ISBN: 9780414059771

This new text, authored by a senior Scottish solicitor with extensive experience in partnership law, is unique in providing a thorough explanation of the law relating to Scottish partnerships and LLPs in the 21st century.

Although the key governing statutes apply to both English and Scottish firms, the Partnership Act 1890 makes a number of distinctions between English and Scottish partnerships (in relation to legal personality (s4(2)), partner liability (s9), partnership property (s20(2) and (3)), partners’ separate judgment debts (s23(5)), notification of partner departures (s36(2), partners’ authority in winding up (s38) and partner bankruptcy (s47)). The Limited Liability Partnerships Act 2000 and the various LLP Regulations also draw some distinctions, albeit of a more minor and procedural nature. In addition, the fact that Scotland has its own legal system separate from that of England and Wales produces differences in a number of areas of law which impact on partnerships, including land law, criminal law and insolvency.

The thorough coverage of Scottish partnership and LLP law in this book is therefore important for not only to Scottish lawyers and academics, who have for some years lacked a text dedicated to Scottish law, but also to their English compatriots, since substantial parts of the law apply equally to English firms. The explanations in the book include discussion of a number of unreported Scottish cases which may be unfamiliar – and thus of particular interest – to English partnership lawyers, as well as to practitioners with a more general commercial practice. The differences between Scottish and English partnership law (and, to a lesser extent, LLP law) are clearly highlighted in the context of the relevant material, although a separate summary of the key differences would have been helpful to lawyers in both jurisdictions.

The book is particularly timely because partnership law developments in Scotland have been prominent in recent years, including legislative developments to address the problem of how to bring a criminal prosecution against a partnership which has dissolved, and that of identifying persons with significant influence over Scottish firms in order to combat money laundering, and the current government consultation on possible further regulation in relation to the misuse of Scottish limited partnerships in particular.

The structure of the book is that general partnerships are considered first, from formation (the requirement to register persons with significant influence), through partner liability and authority, decisionmaking, partner duties, separate legal personality (which Scottish partnerships, unlike English partnerships, possess), partnership property, changes in partners and partner disputes, to dissolution and winding up. The practitioner focus of the book is enhanced by the inclusion of chapters on loans and security, and on accounts. Limited partnerships are considered separately, with an emphasis on those areas where they differ from general partnerships, such as the registration requirements. There is also an interesting chapter on how limited partnerships are used in practice, and a further chapter is devoted to the private fund limited partnership (PFLP) variant on the limited partnership. The remainder of the book covers LLPs, with chapters on similar areas to those in the general partnership section, although there are also chapters on conversion to LLP status and on LLP agreements.

The book is fluently written, and the chapters are broken down into short and clearly labelled sections, with the result that it is easy to read and, together with a detailed index, easy to locate material within it. The law is fully referenced in footnotes, as are leading practitioner commentaries and, to a lesser extent, academic discourse.

In summary, this is an essential text for those advising on Scottish partnership or LLP law, but it also contains much of interest to English practitioners, and to academics and students in this area of law.

New book on Scottish partnership law

Stephen Chan, A Practical Guide to Partnership Law in Scotland (W Green 2018), has just been published by Sweet & Maxwell. We hope to provide a review in due course.

Proposals to reform NZ partnership law

The New Zealand government is proposing to reform New Zealand's law of general partnership law, which was originally based on the UK's Partnership Act 1890. In the government's own words "The Bill's purpose is to re-enact the Partnership Act 1908 to make it more accessible, readable, and easier to understand. It is not intended to make policy changes." 

Further details at http://www.pco.govt.nz/assets/Uploads/legislative-documents/plb/exposure-draft-Partnership-Law-Bill.html.

Recent UK partnership/LLP cases

Gregory Wild v Malcolm Wild, Jean Wild and Abigail Wild [2018] EWHC 2197 (Ch)
The claimant and the first defendant were brothers who had been partners in a dairy farm, and associated retail milk business.  The partnership had been established in 1978 by their late father (who had inherited the farm from his parents) and the first defendant, and was dissolved in 2016. The claimant alleged that the farm was partnership property.  The defendants disputed this but argued that the claimant’s milk round, which he continued after the dissolution, was a partnership asset even though the first defendant had stopped supplying him with milk from the partnership herd.

Section 20(1) of the Partnership Act 1890 provides that  ‘property and rights and interests in property originally brought into the partnerships stock….are called in this Act partnership property, and the question therefore arose whether the father had brought the farm into the partnership stock.  The court held that the key issue was whether the partners had agreed or consented to the property becoming partnership property. However, although the relevant agreement or consent could be inferred or arise by implication, no more agreement should be inferred by the court than was absolutely necessary to give business efficacy to what had happened (Miles v Clarke [1953] 1 WLR 587 at 540).  The fact that a particular item of property was used by a partnership for the purposes of its business did not necessarily give rise to an inference that the partners had agreed that the item was to be a partnership asset, and the implication of such a term was not normally necessary to give business efficacy to the partnership. This was particularly so in the case of land used by a farming partnership (Ham v Bell and others [2016] EWHC 1791). Nor was it determinative that the item had been included in the partnership accounts.

The court concluded that it would have been surprising had the father made the farm an asset of a partnership which he had just formed with his 16 year old son when the farmhouse was his home, the first defendant was not his only child, and the partnership was created for tax purposes. It was therefore not open to the court to infer an agreement or imply a term that the farm was brought into the partnership stock. However, the claimant’s milk round was a partnership asset despite the fact that the first defendant had ceased to supply the claimant with partnership milk, because the claimant continued to use a milk float which was a partnership asset, and the goodwill in the customers of the milk round was a partnership asset.



Milne, Liquidator of Premier Housewares (Scotland) LLP) v Rashid [2018] CSOH 23
The liquidator of an LLP sought an order against the respondent, who was a member of the LLP, under s214A of the Insolvency Act 1986 (IA 1986). In the event of an insolvency, the LLP Regulations 2001 create an additional sanction for LLP members which is not applicable to companies, the so-called ‘clawback’ under s214A IA 1986.  This provides that in a winding up of an LLP the court can order an LLP member to make a contribution to the LLP’s assets if, within two years before the commencement of the winding up, that member withdrew LLP property (described in Milne as ‘limb 1’), and it is proved to the court’s satisfaction that he knew or had reasonable grounds for believing that the LLP was at the time of the withdrawal unable to pay its debts within the meaning of s123 IA 1986 or would become so unable after that withdrawal (‘limb 2’). Section 214A further provides that the court may not make an order unless the member knew or ought to have concluded that after the withdrawal there was no reasonable prospect of the LLP avoiding insolvent liquidation, taking into account his actual knowledge, skill and experience and that reasonably to be expected of a person carrying out the same functions as him (‘limb 3’). In Milne, the court was concerned with the Scottish version of s214A but the minor differences between that version and the English version were not at issue.  

It was undisputed that limb 1 of the test was met, and the court also held that limb 2 was met because s123 deemed an LLP to be unable to pay its debts in certain circumstances, including it being unable to pay its debts as they fell due, which did not mean that a business which was currently paying its debts as they fell due could not be deemed to be unable to pay its debts since it was concerned not only with debts presently due, but also those due from time to time in the reasonably near future; and its assets being less than its prospective and contingent liabilities, although it was not conclusive that liabilities exceeded assets at a particular point in time but whether the LLP could reasonably be expected to meet its prospective and contingent liabilities. Although the respondent in Milne did not know, nor ought he to have concluded, that the LLP was unable to pay its debts as they fell due, he knew or ought to have concluded that the LLP could not reasonably be expected to meet its liabilities and therefore had reasonable grounds to believe that the LLP was unable to pay its debts.  However, the fact that limb 2 was met did not did not mean that limb 3 was also met, and the court concluded that it was not. There was a reasonable prospect of the LLP avoiding insolvent liquidation and so the respondent could not have known, nor ought he to have concluded, that there was no such prospect. A s214A contribution order should therefore not be made against him.


Cheema v Jones and others [2017] EWCA Civ 1706
Cheema and Jones were doctors who had practised in partnership together and had subsequently invited three more partners to join them. Negotiations on the terms of the new partnership continued after the three new partners had started work. When the relationship between Cheema and Jones broke down, Jones sought to prevent Cheema from practising as a doctor at the practice. Cheema claimed that the partnership of five partners had never been formed and was granted an interim injunction to restrain Jones from preventing him exercising his rights under the original partnership agreement.  Jones then purported to give notice dissolving the partnership at will between the five partners.

The Court of Appeal held that a new partnership at will between the five partners had come into existence when the three new partners had joined the original two, and that this had been validly dissolved by the giving of notice. Since the discussions about the new partnership were focussed on a new agreement and there was no reference to the old agreement as a fall-back position, it was to be inferred that Jones and Cheema intended to abandon the old agreement and enter into a new contractual relationship which would supersede the old partnership.  The fact that no new agreement was signed did not affect that inference. Although dicta in Austen v Boys suggested that if a new partner was taken into a partnership without specifying the terms on which he became a partner, the original partnership agreement would govern the new relationship, that dicta concerned the different situation of a new partner being admitted in the absence of any intention by either the existing or the new partners to enter into a new agreement. Here,` there was no evidence that the new partners intended to be bound by the original agreement, or even that they had all seen it.

Resources

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Second Annual Conference of the Partnership, LLP and LLC Law Forum 10 January 2019

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