Elspeth Berry, ‘Partnership Law: Used, Misused or Abused?’ (2021) 32(2) European Business Law Review 207-250
This article analyses the increasing use of UK partnerships for criminal purposes, often in other jurisdictions, and argues that the regulatory responses are inadequate, and must be supplemented by a comprehensive ethical framework.
It first argues that partnerships offer substantial benefits for a variety of businesses, but that they also have vulnerabilities which have led to their misuse and even abuse through criminal activities. It then analyses the deficiencies of the regulatory measures designed to tackle the abuses, including requirements to disclose participant identity and accounts, and anti-money laundering and tax evasion measures. Finally, it evaluates the use of a supplementary ethical framework to reduce the abuses, and examines how such a framework could be created. The analysis provides an understanding of the causes and consequences of partnership abuses and of how they can be overcome.
If you do not have access to the European Business Law Review and would like to read the article, please contact the author at elspeth.berry@ntu.ac.uk.
Capitalism before Corporations, Andreas Televantos (OUP 2020), 224pp., hardback, ISBN: 9780198870340. Also available as an e-book.
This book considers the ways in which English organisational law facilitated commerce before incorporation became common. It focuses on the period 1790-1822 and is part of the Oxford Legal History series. In particular, it considers the extent to which partnership, trust and agency law developed to reflect the demands of traders and the need to protect third parties and society from the adverse effects of the behaviour of traders.
The book is divided into three broad thematic parts. The first part introduces and analyses partnership and trust structures and their use in the Regency period. Chapter 1 considers the definition of a partnership, and the ease with which a partnership could be dissolved, both of which issues continue to give rise to disputes today. It also considers the use of partnership assets and the ‘jingle rule’ whereby partnership assets are available to partnership creditors in priority to partners’ personal creditors. Although the title of Chapter 2 refers only to trusts, it includes a substantial section on joint stock companies (though labelled ‘The Deed of Settlement Company’) which the author describes as ‘unincorporated partnerships which made use of trusts to emulate some of the benefits of incorporation’, and this section examines the joint antecedents of both modern partnerships and modern companies.
The second part explains the authority of agents and trustees in relation to business assets. Chapter 3 discusses some of the economic theories and economic history underlying the development of agency law generally, and partners as agents in particular. It includes a discussion of the scope of partners’ agency, and the availability of set-off as between principal and third party, including where the principal is undisclosed. Chapter 4 considers in more detail the attitude of the courts to the development of agency law. Chapter 5, though focusing on trustees and executors, draws some interesting parallels between the rights of partnership creditors and those of trust creditors.
The third part discusses business failure and the distribution of risk. Chapter 6 focuses on trusts, but Chapter 7 considers the rules governing the distribution of a bankrupt partnership’s assets. It examines the development of the jingle rule, the priority of third-party creditors over partners in the distribution of partnership assets, the requirement for partners to return assets removed by them from an insolvent partnership, and the rights of creditors against the partners jointly rather than the partnership. Although the chapter title refers to dissolution and bankruptcy, and the early material focusses on bankruptcy, there is also an extensive discussion of the liability issues which arise when a partner leaves a continuing partnership, for both the departing and the continuing partners. While this situation is of course one of partnership dissolution, it is commonly regarded as a ‘partial’ or ‘technical’ dissolution, and very different to the complete dissolution which will occur on bankruptcy.
The substantive material finishes with a concluding chapter, although several of the other chapters also include a concluding section. The book includes an Appendix explaining the use of archival sources, and providing a glossary of terms and an extensive bibliography. There are ample footnotes throughout the chapters, directing the reader to important primary and secondary sources.
The rationale for the division of material between chapters is sometimes a little unclear, and both the chapters and the sections within them are sometimes given titles which do not fully reflect their content, with the result that this is a book to read as a narrative rather than a reference work.
However, it is a thought-provoking text which will be of interest to academics and postgraduate students in partnership law, the law of trusts, or the history of commercial and company law in England.
In conjunction with the Centre for Business and Insolvency Law at Nottingham Law School, the Partnership, LLP and LLC Law Forum is pleased to host its 4th Annual Conference.
The Conference will be held on Thursday 9 September 2021 at Nottingham Trent University (assuming Covid-19 restrictions allow for this - otherwise it will be online as in 2020).
As ever, the Conference aims to bring together all those with an interest in partnerships, LLPs, LLCs and other alternative forms of business organisation in the UK and overseas - including practitioners, academics and policymakers - and to provide a welcoming and inclusive forum in which to share and develop ideas.
A formal Call for Papers will be issued shortly.
Law firm CM Murray have now published the third in their series of articles on the lateral hiring of partners.
'Partner Lateral Hires – Part 3 of 3: The Current Firm’s Perspective' (18 March 2021) is available at: https://www.cm-murray.com/knowledge/partner-lateral-hires-part-3-of-3-the-current-firms-perspective/?utm_source=rss&utm_medium=rss&utm_campaign=partner-lateral-hires-part-3-of-3-the-current-firms-perspective
Partner Lateral Hires – Part 2 of 3: The Partner’s Perspective' (2 March 2021) is available at:
https://www.cm-murray.com/knowledge/partner-lateral-hires-part-2-of-3-the-partners-perspective/?utm_source=rss&utm_medium=rss&utm_campaign=partner-lateral-hires-part-2-of-3-the-partners-perspective
'Partner Lateral Hires – Part 1 of 3: The Hiring Firm’s Perspective' (9 March 2021) is available at:
https://www.cm-murray.com/knowledge/partner-lateral-hires-part-1-of-3-the-hiring-firms-perspective/?utm_source=rss&utm_medium=rss&utm_campaign=partner-lateral-hires-part-1-of-3-the-hiring-firms-perspective
Oberman v Collins and another [2020] EWHC 3533 (Ch)
This case involved a dispute between two parties who had a personal relationship and lived together with their children, as to the entitlement to the beneficial ownership of a number of properties. The legal ownership of some was held by both parties jointly, some by a company which they operated jointly, some by the defendant alone, and some by a company operated by him alone.
Of particular interest is the court’s judgment that the parties had not been in partnership together. It noted that there was no express agreement for a partnership, there had been no discussion of matters such as the sharing of losses, mutual agency or dissolution, and there was none of the “usual” evidence of a partnership such as accounts, advertisements, agreements and other documents, bills, circulars, meeting and tax returns The parties had a joint bank account but it was not described as a partnership account and was explicable by the fact that the parties were living together. The Court of Appeal had held in Greville v Venables [2007] EWCA Civ 878 that it was possible to imply the existence of a partnership from conduct, but only where the court was “able to conclude with confidence both that the parties intended to create contractual relations and that the agreement was to the effect contended for”. The court concluded that in the present case the parties had chosen to organise their business relationship through a limited company, and it could not confidently conclude that they intended to create a legally binding contract which went beyond the relationship of shareholders and directors, let alone that they intended to enter into the legal relationship of partnership.
However, the court held that that the limited company set up by the parties was a quasi-partnership as defined in Ebrahimi v Westbourne Galleries [1973] AC 360: a small private company which additionally exhibited one or more of i) being being formed or constituted on the basis of a personal relationship, ii) being based on an understanding of shareholder participation, and iii) restrictions on the transfer of shares so that a shareholder who was removed from management could not simply withdraw his capital and leave. It held that, on the facts, the claimant had a legitimate expectation that she would be entitle to participate in the company’s management and be consulted on significant decisions, and that she had been excluded from management. The finding of a quasi-partnership allowed the court to impose equitable considerations equivalent to those on partners on the exercise of the rights and powers of shareholders. The court therefore ordered the defendant to purchase the claimant’s shares in the company without any discount for the fact that the claimant was a minority shareholder.
Gibraltar has proposed a number of reforms in relation to partnership law, including replacing its Limited Partnerships Act 1927 with a new Limited Partnerships Bill, and enacting a Protected Cell Limited Partnership Bill. It also proposes to make compliance by funds with the Alternative Investment Fund Managers Directive (AIFMD) optional, now that Gibraltar and the UK have left the EU.
James Lasry of law firm Hassans has published a brief article on this, 'Brexit, Limited Partnerships, and the new opportunities for Gibraltar Funds' (23 February 2021). It is available at:
https://www.gibraltarlaw.com/insights/brexit-limited-partnerships-and-the-new-opportunities-for-gibraltar-funds/
Claire Plumb and Ivor Adair of law firm Fox & Partners have written a short article on the recent UK Court of Appeal judgment in Joseph v Deloitte. 'The price of certainty' (2021) LS Gaz, 22 Feb, 29, is available at: https://www.lawgazette.co.uk/practice-points/the-high-price-of-certainty/5107482.article
A summary of the judgment is available in an earlier post on this website - 'Recent UK cases on expulsion of an LLP member, liability of a partnership for a partner's wrongful acts, and the existence of a partnership', posted on 29 January 2021.
These Regulations were adopted on 23 February and will come into force on 28 February 2021. They allow certain tenants to relinquish their tenancy and receive compensation from the landlord or, if the landlord refuses, to assign the tenancy. The full text is at: https://www.legislation.gov.uk/ssi/2021/106/contents/made
There is obviously a very short period between adoption of these Regulations and their coming into force, but the draft Regulations have been available for some time; see further law firm Turcan Connell's summary at: https://www.turcanconnell.com/media/blog/2021/01/land-reform-scotland-act-2016-relinquishment-and-assignation/
Journalist David Leask has published an interesting article on current litigation in the Ukrainian courts against a Welsh limited partnership, arising out of the sinking of a tanker (and consequent oil pollution) allegedly owned by the partnership. The case has once again highlighted the role of UK limited partnerships operating overseas in suspected wrongdoing, exploiting both their lack of transparency of ownership and their ability to remain as 'zombie' partnerships on the register at Companies House in the absence of any legal power to strike them off. 'A Ukrainian tanker mystery continues - and leads back to the UK' (12 February 2021) is available at: https://www.opendemocracy.net/en/odr/ukrainian-tanker-mystery-delfi-odesa/
Those Forum members who attended the Second Annual Conference in 2019 may recall journalist Richard Smith's excellent paper on 'Abuse of UK limited partnerships and the outlook for reform'.