New article on quasi-partnerships in the UK by Professor David Milman

Those of you who attended the Partnership Forum Conference earlier this year will recall David's excellent analysis of so-called 'quasi-partnerships'. He has now published an article based on this research:

David Milman,‘Legal characterisation of commercial relationships in the UK: the quasi-partnership example' (2019) 40(10) Company Lawyer 312

Summary of UK partnership vehicles

For anyone not already familiar with basic UK partnership structures, this article - another in the Lexology series summarising different types of partnerships in a particular countries - will be useful.

The article is entitled 'Partnerships in United Kingdom' and is authored by lawyers at one of the UK's leading law firms specialising in partnership law. 

It is at https://www.lexology.com/library/detail.aspx?g=1779a658-7b9e-45c2-ac6d-b8fbee394eb5&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-10-25&utm_term=

(if you need to subscribe to Lexology to access it, it is free do do so - see further https://www.lexology.com/account/rss)

Useful summary of French partnership law

There is a useful article on Lexology by the French law firm Philippe Derouin summarising different types of partnerships in France.

The article is creatively entitled 'Partnerships in France'  and is at https://www.lexology.com/library/detail.aspx?g=08668a5f-d0a9-4507-bd8f-63f5f357d89d&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-10-18&utm_term=

(if you need to subscribe to Lexology to access it, it is free do do so - see further https://www.lexology.com/account/rss)

Summary of Greek partnership law

There is a useful article on Lexology by Cocalis & Partners summarising different types of partnerships and other business vehicles in Greece.

The article is titled  ‘Commercial corporate entities: a brief outline’ and is at https://www.lexology.com/library/detail.aspx?g=a6e27739-9321-47fa-bfa7-bfcac22f843d&l=8JG74F4

(if you need to subscribe to Lexology to access it, it is free do do so - see further https://www.lexology.com/account/rss)

Recent article on Chinese partnership law

See:

Lin Lin, 'Private Equity Investor Protection: Conceptualizing Duties of General Partners In China' (2018) 15(1) Berkeley Business Law Journal 43-91

Proposed legislative changes to the Irish Investment Limited Partnership

Update on proposed legislative changes to the Irish Investment Limited Partnership by the Investment Limited Partnerships (Amendment) Bill 2019 available at: https://www.williamfry.com/newsandinsights/publications-article/2019/06/26/upgrade-of-irish-investment-limited-partnership-product

The text of the Bill itself, and a summary of its legislative progress, is available at: https://www.oireachtas.ie/en/bills/bill/2019/42/

New UK case on LLP member's duties

Riley v Reddish LLP, 7 June 2019, unreported

The appellant had been a member of an LLP which had acquired shares in a company.  He was sued by the seller of the shares for the purchase price of £1.3 million. The court held that the LLP was liable for the purchase price, but it went into liquidation and was unable to pay.  The LLP then sued and obtained judgment against the appellant for the purchase price. The appellant’s claim to have his judgment set aside on the grounds that he had refused service of the claim form and the particulars of claim was rejected.

On appeal, the court held that although the LLP had alleged that the appellant was a director who had breached his duties under the Companies Act 2006, LLPs did not owe fiduciary duties under that Act, and directors’ duties could not be transposed on to LLP members. Whether an LLP member owed duties depended on his role in the LLP affairs (see further F&C Alternative Investments v Barthelemy [2011] EWHC 1731 (Ch)). Here there was no evidence of any agreement about his role, and it was therefore not possible to establish that he was in breach of duty.  Since there was a reasonable prospect that he would be able to defend the claim, the court exercised its discretion under the Civil Procedure Rules (CPR) r.13.3 to allow the appeal and set aside the judgment against him.  The court noted that refusing the appeal would have meant imposing a substantial liability on the appellant as punishment for refusing to accept service of documents, which would be disproportionate.

Useful summary of Belgian partnership law

In the context of reforms to Belgian company law, the law firm Sirius Legal has provided a brief summary of Belgian partnership law, available at https://siriuslegaladvocaten.be/en/new-company-law-is-it-useful-to-convert-your-partnership-vof-or-gcv-to-a-private-limited-company/.

New UK case involving partnership with assets in the UK and India and judgments in both jurisdictions

Tarloch Singh Badyal v Malkat Singh Badyal and Santokh Singh Badyal [2019] EWHC 467 (Ch)

This judgment was given in the course of ongoing proceedings between three brothers who were partners.  In earlier proceedings, the English court had ordered the partnership to be wound up, and accounts and inquiries to be conducted, and declared two UK properties, four Indian companies and an Indian property development to be either partnership assets or held by the claimant on trust for all three partners in equal shares, and that the claimant must account to the defendants for his dealings with these assets as a fiduciary. The court had also declared that a further property was a partnership asset or held by the second defendant on trust for all of them. Subsequently, an Indian court ruled that the three partners should not seek enforcement of the English judgment, insofar as it related to Indian assets, without leave of the Indian court.

In this judgment, the English High Court ruled that although it should avoid making an order requiring any of the defendants to act in breach of the Indian Order, that Order did not prohibit the enforcement of orders for disclosure or the taking of accounts and inquiries, or of in personam orders against the claimant so long as those orders did not require him to dispose of, or alter rights in, Indian property or company shares. However, the Indian Order did not relate to one of the two companies in respect of which the defendants sought an order for the transfer of shares and, in the absence of anything in that company’s articles permitting it to refuse to register the share transfer already ordered by the English court, this transfer should be made. In relation to the other company, the court gave the defendants liberty to apply for a further order if the Indian court, before which proceedings were still ongoing, revoked or varied the Indian Order.

The court noted that since sales were taking place of the Indian property development, there was a clear risk of dissipation of assets in which the defendants owned equal shares with the claimant. The claimant had failed to give prior notification of sales to the defendants, as previously ordered by the English court, and therefore the court ordered the scheme which the claimant himself had previously proposed, whereby a court order would be required to authorise a sale if the partners could not agree on a valuation. Although this might result in delays in the sales, it was required in order to reasonably protect the defendants, and as it only operated as an order in personam against the claimant, it did not breach the Indian Order.

Since the claimant had failed to provide adequate information and disclosure, the court made the more specific and targeted order sought by the defendants as to what information and disclosure was required.

The court declined to order the sale of the property registered in the name of the second defendant, pending further information about the values of all the UK and Indian assets, and decisions as to which properties should be sold and which distributed in specie, and how the proceeds of sale were to be distributed.

New Australian case on whether partners can claim privilege against self incrimination or privilege from exposure to civil penalties

Sadie Ville Pty v Deloitte Touche Tohmatsu (A Firm) (No 3) [2018] FCA 1107, 357 ALR 695, 128 ACSR 625 (available free online at http://www.austlii.edu.au)

The defendant firm was sued in respect of losses alleged to have been sustained from share purchases made in reliance on representations made by it as the company’s auditor. As a matter of procedure, the Federal Court Rules 2011, r 9.41(2) permit proceedings to be brought in the partnership name against two or more persons claimed to be liable as partners, but the proceedings are in fact brought against all of the partners. (The position under the UK’s Civil Procedure Rules 1998, r 5.A3, is similar).

The court held that natural persons - including partners - could claim privilege against self incrimination and privilege from exposure to civil penalties, but legal persons such as companies (and thus corporate partners) could not. However, there must be a real and appreciable risk of prosecution or penalty proceedings, and only a person exposed to that risk could invoke the privileges; as a general rule, they could not do so merely because another person would thereby tend to be incriminated. Therefore, only those partners in the firm who were alleged to be involved in the wrongdoing could claim privilege.

The uninvolved partners appealed unsuccessfully against this ruling in Sadie Ville Pty v Deloitte Touche Tohmatsu (A Firm) (No 5) [2018] FCA 2066.

It is understood that the defendant firm has applied for leave to appeal and, if successful, the hearing has been set down for 6 May 2019 (see further Shanta Martin, ‘The Hastie Class Action: the Privileges of Partnership?’ CommBar Matters Blog, available at http://www.commbarmatters.com.au/2019/03/08/the-hastie-class-action-the-privileges-of-partnership/).

On the position in relation to the privilege against self-incrimination in the UK, see further Elspeth Berry, ‘The Zone of Interaction between Partnerships, LLPs and Human Rights in United Kingdom Law’ (2011) EHRLR 11(3): 503, 511-513.

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

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