Partnership Law: The modern law of firms, limited partnerships and LLPs

Description

DELETE Preface Table of Statutes Table of Statutory Instruments Table of Cases Chapter 1 Partnership in general 1 The nature of partnership 2 The history of partnership A The origins B The statutes of 1865, 1890 and 1907 C Later development 3 Foreign firms and companies A Foreign companies and apparent companies B Scottish and Irish partnerships C Isle of Man and Channel Islands D The nature of foreign partnerships E Recognition by the courts of England and Wales F Procedure against foreign firms Chapter 2 Whether there is a partnership and whether a person is a partner 1 Express agreement, complete or incomplete A Agreement that there is or is not a partnership B The issue as to the existence of the partnership C Sham partnerships D Partnership options E Proposals and preparation for business F Draft agreements acted upon or not acted upon G Deeds and written and oral agreements H Continuation, and whether there is a new partnership I Salaried partners 2 The existence of the partnership without express agreement A The implication of partnership generally B Carrying on a business in common with a view of profit 3 Sharing of profits and property as evidence of partnership A Sharing net profits B Where sharing profits does not create a partnership C Sharing gross profits D Sharing losses E Employees and agents F Lenders G Legatees H Sharing property 4 Joint ventures A Partnership contrasted with other joint ventures B Rights and liabilities of joint venturers: relational contracts 5 Other entities akin to partnerships A Agents B Barristers’ chambers C Commercial agents D Civil partnerships E Clubs and societies F Companies limited and unlimited, LLPs and other corporate entities G Constructive trust: Pallant v Morgan H Employment I European Economic Interest Groups J Family partnerships K Franchises L Friendly societies M Landlords and tenants N Mutual benefit associations O Marriage, civil partnership, boyfriends and girlfriends P Mining companies in the stannaries Q Public-private partnerships R Quasi-partnerships S Share farmers T Sharia law Chapter 3 Capacity 1 Those entities and persons that have capacity to be partners A Those with capacity to be partners B Those who may lack capacity to be partners 2 Minors A The minority of a partner B Affirmation of the partnership C Judgment and execution 3 Mental incapacity: dementia, madness and drunkenness A The partner mentally incapable when commencing partnership B Patients of the Court of Protection C Loss of mental capacity during the course of the partnership 4 Disqualification, bankruptcy and insolvency A Disqualification under the Company Directors Disqualification Act 1986 B A partner’s bankruptcy C Solicitors’ practising certificates Chapter 4 Illegality 1 Firms that are illegal A Common law illegality B Statutory illegality C Fraud and other tort, champerty, corruption, immorality and gambling D Foreign relations E Anti-competitive practice: English and European law F Unqualified and disqualified professionals G Former restriction on firms of more than 20 members H Financial regulation 2 The effect of illegality A The effect generally B The relations of outsiders with an illegal firm C Illegality causes immediate dissolution D Enforcement of rights between partners E The illegality abandoned Chapter 5 Holding out 1 Liability of one who is held out to be a partner 2 What amounts to a sufficient representation A His own representation about himself B A shadow partner C Another’s representation knowingly suffered by him 3 To whom he is liable 4 For what he is liable 5 The retired, bankrupt or dead partner 6 Passing-off: a person falsely representing himself to be a member of the firm 7 Liabilities between the firm and the person held out Chapter 6 Sub-partnerships and group partnerships 1 Sub-partnerships A Sub-partnerships generally B A partnership of a partnership share C Another firm being itself a partner D A sub-group within a larger entity E Implied terms of the sub-partnership 2 Group, parallel and corporate partnerships A Group partnerships B Parallel partnerships C Corporate partnerships Chapter 7 The partnership agreement 1 The partnership agreement A The minimum agreement B The duration and continuation of the partnership C Construction of the partnership agreement D Penalties, forfeitures and unfair and onerous conditions 2 Variation of the partnership agreement A Express and implied variation between existing members B A new partner joining the firm C Partnership options D Mergers Chapter 8 Partnership assets and liabilities 1 Partnership property A Introduction B Categories of partnership property C Partnership property contrasted with other property 2 The property of individual partners contrasted with that of the firm A Proprietary and non-proprietary rights B Rules for ascertaining whether property belongs to one or more partners or to the firm 3 Transfers of property between the firm and its members A Agreements between the firm and its members B Creditors C Land: the requirement of writing D An agreement will not be inferred without evidence 4 Partnership land, leases and tenancies A Partnership land generally B The nature and vesting of partnership land C Partnership leases, tenancies and reversions D Agricultural land E Partnership mortgages and charges 5 Goodwill and the firm name A Goodwill B The firm name C Companies Act 2006, Part 41 6 Confidential and privileged information and intellectual property A Confidential information belonging to the firm B Confidential information belonging to a client C Client loyalty D Privilege E Copyright, designs and other intellectual property Chapter 9 Partnership capital and partners’ capital 1 Background 2 The meaning of ‘partnership capital’ 3 Partners’ capital 4 Accounting for capital 5 Current accounts 6 Variation, and blending partners’ capital and current accounts 7 Interest on capital accounts 8 Contributions of capital 9 The ownership and repayment of partnership capital Chapter 10 The partnership share 1 The nature and size of a partnership share A An interest in the net assets B Presumption of equality C Survivorship D A share may be assigned or charged E The value of the share F The partner’s lien 2 Mortgagees, assignees, personal representatives, trustees, nominees, legatees and attorneys of a share A Assignees and chargees generally B Charging orders and the appointment of a receiver C Personal representatives of a partner D The partnership share held upon trust or given by will E Attorneys and Enduring and Lasting Powers of Attorney Chapter 11 The duty of good faith 1 The general duty of good faith A A duty of good faith: honesty and other duties B A fiduciary duty C Limits on the duty of good faith D Analogy with duties of others E Duration of duty F Waiver and consent to breach of duty G Enforcement against third parties of the partner’s duty 2 The duty to give information and keep accounts A General B The duty to give information C The duty to keep full and accurate accounts D Access to books and other records 3 Profiting from the firm A Profiting from the firm generally B Renewing partnership leases C Reversions on partnership leases D Outside work and office-holding E Use by the partner of other partnership property F Bribes and commissions 4 Competing with the firm A ‘Consent of the other partners …’ B ‘The same nature … and competing’ C Profits of office D What is profit? 5 Duties when a partner joins the firm or buys or sells his share A The duty B Duties of the purchaser and of the vendor C Duty to the remaining partners as regards the transaction D Where no sale materialises E Duty of continuing partners to estate of a dead partner Chapter 12 Internal management 1 Management and decision-making within the firm A Decision-making generally B Decisions that can only be taken by the partners unanimously C Decisions that may be taken by a majority D The right of a single partner to act in the management E The management committee F Gardening leave and exclusion from participation G Salaried partners and employees 2 Accounts, profits and financial management A Taxation and account keeping B Remuneration, profits and losses C A partner’s right to indemnity from the firm Chapter 13 Discrimination 1 Discrimination generally 2 Equality Act 2010 A Generally B Protected characteristics C Prohibited conduct 3 Application to partnerships A Prospective partners B Existing partners C Limited partnerships D Proposed firm E Former partners F LLPs and proposed LLPs G Employees of partnerships 4 Procedure A Jurisdiction of the employment tribunal B Time limits C Burden of proof D Remedies E Exclusion clauses and arbitration clauses Chapter 14 Internal partnership dispute and its remedies 1 Enforcement of agreements A Enforcement of agreements to enter into partnership B Rescission for misrepresentation 2 Repudiation by breach of the partnership agreement A Repudiation applied to partnerships B What amounts to repudiation C The effect of repudiation D Damages and repudiation 3 The claim for an account A The right to an account B The meaning of ‘action for an account’ C Taking the account D Defences to actions for an account E How settled accounts may be challenged 4 Breach of contract, negligence and other claims between partners A Breach of contract B Breach of fiduciary duty C Duty of care, negligence and gross negligence D Fraud and other torts E Setting transactions aside 5 Contribution between partners A What claims are actionable between partners B How claims for compensation or contribution between partners may be enforced Chapter 15 The enforcement of remedies between partners 1 Jurisdiction and procedure A Jurisdiction B Limits on claims for debt or damages where no account is sought C Necessary parties to a partnership action D Disclosure and privilege E Judgments and enforcement F Interest G Costs of a partnership action H Compromise between partners 2 Arbitration and mediation A Arbitration and mediation agreements B Mediation or ‘ADR’ C Arbitration applications to the court D County court E Stay of parallel court proceedings F Powers of the arbitrator G Costs of arbitration H Arbitration appeals to the court 3 Injunctions between partners A Specific performance and dissolution B Injunctions restraining misbehaviour by a partner or the firm C Mutuality D Mandatory injunctions to enforce the personal obligations of a partner E Injunctions where dissolution is an alternative remedy F Interim injunctions and undertakings 4 A partner’s application for a receiver A Receivers generally B Partnership receivers appointed by agreement C Who may apply to the court for the appointment of a partnership receiver D Who may be appointed E The grounds for appointment before dissolution F The grounds for appointment in a dissolution G Procedure on appointment H Remuneration I Receiver and manager J Status and powers of receiver or receiver and manager K Restrictions on creditors 5 Limitation and delay as regards claims between partners A Limitation generally B Limitation in claims between continuing partners: no time period C Limitation in claims between the firm and an outgoing partner or his estate: ordinary time period D Extension of ordinary time limits E Laches, waiver, acquiescence and abandonment Chapter 16 Dissolution, retirement and expulsion without court order 1 Dissolution generally A The meaning of dissolution, ‘technical dissolution’ and winding up B Dissolution on illegality, repudiation, frustration or rescission C Dissolution under the partnership agreement D Dissolution by subsequent agreement or implication E Setting aside dissolution agreements F Publicising dissolution 2 Dissolution by notice A Express provision for dissolution on notice B Partnerships at will dissolved on notice C The nature and effect of a notice 3 Dissolution by death, bankruptcy or charging A Death B Bankruptcy C Dissolution when a partner’s share is charged 4 Retirement and expulsion A Retirement and expulsion generally B Retirement C The right to expel D Exercise of the right to expel Chapter 17 Dissolution by court order 1 Dissolution by court order generally A General B Procedure 2 Grounds for dissolution: mental and other incapacity A Dissolution by the court for incapacity generally B Mental incapacity C Other incapacity D The court’s discretion in any case of incapacity 3 Dissolution for misconduct A Generally B Dishonesty C Adultery D Other misbehaviour E Triviality and mere distrust 4 Insolvency and loss-making as a ground for dissolution A Procedure B The grounds for the application 5 Dissolution when just and equitable A The wide jurisdiction B Where the applicant is at fault C Where there is a breakdown in relations Chapter 18 The effect of dissolution and retirement 1 Management after dissolution or retirement A Management B Profits and losses during winding up C The effect of dissolution on outsiders 2 The rights of the parties on a retirement A The effect of dissolution, retirement and pre-emption agreements and options B The valuation of the share of an outgoing partner C Goodwill, work-in-progress and non-assignable assets D The departing partner’s indemnity 3 The rights of the partners on dissolution: winding up A ‘Application’ of partnership property B A sale C Distribution of net assets D Discharge of liabilities and losses E Return of premiums 4 Competition with the firm after retirement or dissolution A The right to compete B Covenants in restraint of trade generally C What is ‘reasonable’ Chapter 19 The firm and outsiders 1 The authority of a partner to bind the firm A The express and implied authority of a partner B Matters within the business of the firm 2 The liability of the firm for a partner’s wrongs and omissions A Wrongful acts and omissions generally B Negligence C Breach of contract D Crime E Fraud F Misrepresentation G Constructive trusteeship or accountability in equity H Other torts and wrongs I Where the partners in the firm change J Liability of a successor practice on a professional indemnity claim 3 Breach of trust and misappropriation A The principles B Where the partner in default is acting within his authority as a partner C Where the partner in default is acting outside his authority as a partner D What the firm may be liable for E Breach of solicitors’ undertakings F A trustee-partner’s right to fees 4 Clients’ confidential information and conflicts of interest Chapter 20 How partners bear the firm’s liabilities 1 Joint and several liability A Joint and several liability explained B Whether the liability is joint or several or both C Releases and judgments D A partner’s death 2 The beginning and end of a partner’s liability A The beginning of liability: the incoming partner B The end of liability: the retired, expelled, bankrupt or dead partner 3 The firm’s notice and knowledge and the client’s confidential information A The knowledge of a partner B Exclusion of liability by notice to the outsider C Employees Chapter 21 Litigation by and against outsiders 1 Actions by the firm A The firm’s cause of action B What partner may authorise and prosecute proceedings? C Set-off between debts and credits of the firm and the partner 2 Actions against the firm A When and how a claim against the firm may be brought B The partners’ defence 3 Procedure A The scope of rules of court enabling a firm to sue or be sued in the firm name B Service and acknowledgment of service C Disclosure of partners’ names D Disclosure and admissions E Admissions 4 Judgment and execution against the firm A Judgment against the firm B Summary judgment C Execution on a judgment against the firm generally D Execution against the assets of the firm E Execution against a partner without permission F Execution against partners and non-partners with permission G The appointment of a receiver H Charging orders I Bankruptcy J Statutory winding up K ‘Garnishee’ or ‘third party debt’ proceedings 5 Costs A Costs orders B The firm as a litigant in person Chapter 22 Insolvency – winding up and similar procedures 1 Bankruptcy contrasted with statutory winding up A The Insolvency Act 1986 option of statutory winding up B Statutory winding up: drafting and terminology 2 Bankruptcy A Bankruptcy law preserved B Applications outside the ambit of statutory winding up C The effect of bankruptcy 3 Creditors’ applications under the Insolvency Act 1986 A Creditors’ applications generally B Creditors’ winding-up petitions where no concurrent bankruptcy or other insolvency petitions are presented against any members C Concurrent petitions against firm and members D Creditors’ applications for an administration order 4 Members’ applications under the Insolvency Act 1986 A Members’ winding up and administration applications B Members’ applications for an administration order C Members’ winding-up petitions where no bankruptcy or other insolvency petition is presented against any member D Members’ winding-up petition where concurrent bankruptcy or other insolvency petitions are presented against all the members E Article 11: members’ applications for joint bankruptcy without winding up the partnership F Members’ applications for partnership voluntary arrangements with creditors – ‘PVAs’ 5 Applications by others under the Insolvency Act 1986 and Company Directors Disqualification Act 1986 A Applications by the liquidator or other responsible insolvency practitioner B Financial services partnerships C Applications by the Secretary of State D The court of its own motion 6 EU regulation of insolvency proceedings Chapter 23 The insolvent firm’s debts 1 Priority of debts generally 2 Postponement of the claims of partners and others connected with the insolvent firm A Partners B The partner’s spouse C Lenders, vendors and others with an interest in a profit share D Which debts are postponed? 3 Set-off A General B Joint debts of the firm and separate debts of partners 4 Secured creditors A General B The joint estate of the firm and the separate estate of the partner 5 The partner’s lien A The priority of the partner’s lien B Registration and protection of liens over land 6 Costs and expenses in insolvency proceedings A Partner’s bankruptcy or insolvency B Dissolution and winding up of the firm without statutory winding up C Statutory winding up of the partnership alone D Statutory winding up of the partnership and a member or members concurrently, with single trustee for both 7 Relative priority of creditors of the firm and creditors of partners A General B Priorities where the Insolvent Partnerships Order 1994 applies C The rule as to priorities where the Insolvent Partnerships Order 1994 does not apply 8 Adjustment of liabilities between partners A All partners solvent B Statutory winding up: the liquidator’s powers C The partner’s rights against an insolvent partner’s estate D An insolvent partner’s estate seeking a contribution against a solvent partner 9 An insolvent member of a solvent firm A A member’s insolvency B No dissolution C Dissolution 10 The estate of a dead partner A General B Death does not halt bankruptcy proceedings C Priorities in relation to an insolvent estate D The position of the personal representatives Chapter 24 Limited partnerships 1 Limited partnerships generally A The nature of limited partnerships B Sham limited partnerships C ‘Business’ and ‘business in common’ D The limited partner’s financial position E Venture capital or private equity funds, collective investment schemes and private fund limited partnerships F Foreign firms and foreign recognition G Discrimination 2 Management of the business A Powers of the general partner(s) and the limited partners B Involvement by limited partners C Conflict between the limited partners, the general partner and the operator 3 Incoming and outgoing partners and their assignees A Introduction of partners B An assignment, charge, nomineeship or trusteeship of a limited partner’s share C The number of partners and their nature 4 The limited partner’s capital A Limited partners in an ordinary limited partnership B Limited partners in a private fund limited partnership 5 Registration and advertisement A Default in registration B The details to be registered initially C The changes to be registered subsequently D The register E Advertisement of changes F The firm name and the Companies Act 6 Regulation of the business A Financial services B Collective investment schemes C Private fund limited partnerships D Successor partnerships E Alternative authorisation for legal professionals 7 Dissolution and winding up A Dissolution without court order B Dissolution by court order C Winding up after dissolution 8 Execution and insolvency A Judgment and execution against a limited partnership B Bankruptcy and petitions for statutory winding up C The priority of a limited partner’s claim against his insolvent firm Chapter 25 Limited liability partnerships 1 The nature and creation of limited liability partnerships A The nature of limited liability partnerships (‘LLPs’) B Sham limited liability partnerships C Registration and incorporation D Pre-incorporation contracts E The name of the LLP F The business and property of the LLP G Taxation H Litigation 2 The LLP agreement and the default provisions A The LLP agreement generally B What should be dealt with in the LLP agreement? C Default of specific agreement D Unfair prejudice to members E Discrimination F The member’s right to sue for a wrong done to the LLP 3 Members A Members generally B Designated members C The member’s share: income and capital D The member’s liability to contribute to the LLP assets E The liability of the LLP and of the member F Good faith and the obligations of the LLP and its members between themselves G Employment of members and ‘workers’ H Commencement and cesser of membership 4 Auditors, accounts, charges and the confirmation statement A Companies Act obligations B Audit C Accounts D Charges E The confirmation statement 5 Insolvency, winding up, misfeasance and disqualification A Insolvency, voluntary arrangements and administration B Dissolution and winding up C Investigation and misfeasance D Recoupment from members E Disqualification 6 Transfer of assets from partnership to LLP A Transfers generally B Existing leases, contracts, liabilities and substitution of defendants C Executorships D Trusteeships and other appointments E CFA agreements F Clients G Taxation Appendix A: Partnership Act 1890 Appendix B: Limited Partnerships Act 1907 Appendix C: Limited Partnerships (Forms) Rules 2009 Appendix D: Company, Limited Liability Partnership and Business Names (Sensitive Words and Expressions) Regulations 2009 Appendix E: Partnership (Accounts) Regulations 2008 Appendix F: Insolvent Partnerships Order 1994 Appendix G: Limited Liability Partnerships Act 2000 Appendix H: Limited Liability Partnerships Regulations 2001 Appendix I: Law of Partnership Act 1865 (repealed) Appendix J: British Venture Capital Association statement 26 May 1987 Index