Lindley & Banks on Partnership, Roderick I’Anson Banks (ed) (21st edn, Sweet & Maxwell 2022), 1704pp., hardback, ISBN: 9780414092051. Also available as an eBook.
The latest edition of this classic text, edited by (it hardly needs saying) a leading barrister with extensive partnership law experience expertise, starts with a quote from the song My Way, ‘And now the end is near. And so I face the final curtain’. This alerts the reader to the fact that this edition is, apparently, likely to be the last full edition under the current editor. If this is so, one can only hope that future editors continue to produce work of equal quality (to say nothing of the quantity, this new edition coming in at 1700 pages compared with 1500 pages for the previous edition and 1300 for the edition before that).
The text is clearly written, and the basic structure remains the same as in previous editions, with a detailed consideration of the law relating to all aspects of a partnership’s life, from formation to dissolution and insolvency, including the relationship of partners inter se, their dealings with third parties, and taxation. The Appendices continue to contain the key pieces of partnership legislation (the Partnership Act 1890, the Limited Partnerships Act 1907, and the Limited Partnerships (Forms) Rules 2009), and relevant extracts from the Civil Procedure Rules and HMRC materials. There is also a separate section on limited partnerships, which are of increasing importance, especially (though not solely) in the financial services sector. However, limited liability partnerships (LLPs) continue to be largely excluded, although there is a short section on LLP agreements and a number of references to LLPs throughout the text, and of course, much of the law governing LLPs in the UK is based on the partnership law described in this book.
It remains important to be aware of the need to cross refer between different chapters of the book for many of the most important topics. This is because, as in previous editions, there is one very large chapter on Partnership Agreements, which includes a range of material on the internal relationship between partners, such as decision-making, the powers and duties of partners, the financial entitlement of current and outgoing partners, the admission or expulsion of a partner, and dissolution, However, many of these topics are also discussed extensively in other chapters and so, to get a full picture of the relevant law and the editor’s analysis, it is necessary to consult both. This approach of course reflects the fact that some matters can and should be dealt with by the partners in their agreement (and are therefore logically considered in the Partnership Agreements chapter), while there are also matters covered by mandatory or default law or which involve third parties (and which therefore need to be considered separately to any partnership agreement). Nonetheless, while some cross references are provided, and the use of subheadings and the detailed contents list and index aids the location of particular material, readers must take care not to assume that the chapter which they have consulted on a topic contains all of the relevant material, and instead to check whether it is additionally covered elsewhere in the book.
The new material in this edition includes explanation and analysis of important recent cases, including:
• Ingenious Games LLP and others v Revenue and Customs Commissioners [2021] EWCA Civ 1180 (LLPs used for tax avoidance schemes both carried on a trade and did so with a view to profit).
• Cheema v Jones and others [2017] EWCA Civ 1706 (admission of new partners created a new partnership at will, even though the new partnership agreement had never been signed, because 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 or evidence that all new partners had seen the old agreement)
• Joseph v Deloitte NSE LLP [2020] EWCA Civ 1457 (a term would not be implied into an LLP agreement concerning the procedure for expulsion, because it would conflict with the express words of the agreement, and no promissory estoppel arose because there had been no relevant representation; the role of the court was not to make a fairer or more reasonable contract for the parties but to ascertain what their contract was)
• Procter v Procter and others [2022] EWHC 1202 (Ch) (retiring partner not entitled to a sale of the partnership assets but to be paid out for his share at a valuation according to accounts and inquiries directed by the court)
• BlueCrest Capital Management (UK) LLP v Revenue and Customs Commissioners [2022] UKFTT 204 (TC) (in the salaried member rules, disguised salary could include an amount which had not actually been varied, so long as it was capable of variation; and influence was not limited to managerial influence but could include direct financial influence, and need not be over the affairs of the partnership as a whole but could be over one or more aspects of the affairs of the partnership)
• Moody v Estate of the late Norman Jones and others [2021] EWHC 3443 (Ch) (on a variety of issues including partnership property, abandonment of the partnership, barring by laches of a partner from asserting his rights as a partner, conduct giving rise to the option to dissolve the partnership, and specific performance of such an option)
This new edition thus continues to provide a comprehensive and authoritative source of reference, as befits a book which is regularly cited in court judgments. Issues which are frequently the subject of dispute between partners are examined in detail, but those issues which arise less commonly are also covered. As a result, it is an invaluable source of reference. This new edition has helpfully incorporated some of the material formerly contained in substantial footnotes into the main text, which reduces the risk of important points being overlooked. It would, however, be helpful, particularly for an academic audience, for there to be more references to relevant secondary sources.
In summary, this continues to be an essential reference text for practitioners, academics and postgraduate students in this area of law.
The Partnership Forum's founder, Elspeth Berry, and a speaker at our 2021 conference, Oliver Bullough, both gave evidence to the Public Bill Committee on the provisions of the Economic Crime Bill, including on the provisions relating to limited partnerships (and, in due course, to LLPs). The relevant section of Hansard is at https://publications.parliament.uk/pa/bills/cbill/58-03/0154/PBC154_EconomicCrime_1st8th_Compilation_03_11_2022.pdf.
It also includes witness evidence from Transparency International, whose recent report 'Partners in Crime' (https://www.transparency.org.uk/partners-in-crime-UK-LLP-Limited-Liability-Partnership-money-laundering) details the ways in which UK LLPs have been used to facilitate criminal activities.
https://www.heraldscotland.com/news/23069781.scottish-firms-sanctioned-putin/
David Leask, who many of you will met as a speaker at our most recent Partnership Forum Conference, has published a really interesting article on Russian (not UK!) sanctions on wrongdoing UK limited partnerships (which are currently the subject of UK reforms proposed in the Economic Crime Bill 2022).
“Since close to the beginning of the century Scottish Limited Partnerships, or SLPs, have been the ghost firms of choice for criminals, corrupt officials and money-launderers around the world.
They are thought to be several thousand of them operating in Russia alone. SLPs were at the heart of that country’s notorious Laundromat, the biggest scheme to clean dirty money ever exposed.
Now they face potentially crippling new restrictions. From from Vladimir Putin, not the British Government.”
Highly recommended read!
Professor Laura Macgregor's inaugural professorial lecture will take place on Wednesday 16 November 2022 in Edinburgh. Attendance is free but advance registration is required at:
https://www.eventbrite.co.uk/e/the-inaugural-lecture-of-professor-laura-macgregor-tickets-423995651407
It is hoped that a recording of the lecture will be available for those unable to attend in person.
As many of you will know, Laura has presented and co-presented excellent papers at Forum Conferences in the past, and this will no doubt be an interesting and though-provoking event.
Transparency International have published a significant report on the misuse of the UK's LLP vehicle - 'Partners in Crime: analysing the potential scale of abuse of limited liability partnerships in economic crime', available at https://www.transparency.org.uk/sites/default/files/pdf/publications/Partners%20in%20Crime%20-%20Transparency%20International%20UK.pdf
"Using data from Companies House and more than 50 corruption and money laundering cases, this paper sets out the likely scale of abuse of Limited Liability Partnerships (LLPs) in high-level white-collar crime. It builds on our previous work, and that of others, investigating the involvement of UK legal entities in financial crime. While this is a problem well documented in exposés by journalists and recognised by the government, its extent remained unknown. Until now. Our analysis of all 146,948 LLPs incorporated between April 2001 and September 2021 reveals 21,002 (14 per cent) showed three or more money laundering red flags. Russia’s war on Ukraine, its impact on our economy, and the use of LLPs and other UK legal entities to skirt sanctions, demand a renewed impetus for expedited reform."
This report follows their previous report on LPs in 2017, 'Offshore in the UK Analysing the use of Scottish Limited Partnerships in corruption and money laundering', available at https://www.transparency.org.uk/sites/default/files/pdf/publications/Offshore_In_The_UK_TIUK_June_2017.pdf
Those of you that were unable to attend this year's Conference (and you missed a treat!) may be interested in the following article by Corinne Staves of CM Murray, which is based on her Conference paper.
It is available at:
https://www.cm-murray.com/knowledge/families-financial-services-and-the-professions/?utm_source=rss&utm_medium=rss&utm_campaign=families-financial-services-and-the-professions
As those of you who attended this year's Partnership Forum Conference may recall, one of our speakers, Professor Laura Macgregor of the University of Edinburgh, referred to a book chapter which she had recently published, and a number of delegates asked for further details.
The book is:
Paul S Davies and Tan Cheng-Han (eds), Intermediaries in Commercial Law (2022) Hart Publishing. 9781509949090. £95.
The chapter is:
Laura Macgregor, ‘The Partner’s Fiduciary and Good Faith Duties: More than Just an Agent?’ (pp 253-272 of the book)
The chapter explores the partner in the UK partnership as a type of commercial intermediary. It explores the way in which more general agency law and fiduciary law scholarship applies to the specific commercial context of partnerships. Ultimately, it questions whether designation of the partner as an “agent” continues to be a key factor in understanding the totality of the partner’s rights and duties. Rather, many important rights and duties are either sui generis or emanate from fiduciary (rather than agency) law.
The partnership structure poses challenges to the application of standard agency and fiduciary law principles. The partner is an unusual agent, being present at both the level of agent, and at the level of principal (as an actor who forms part of the partnership). In key respects, partnerships differ from classic fiduciary relationships. The partner is, for example, perhaps not as vulnerable as other types of principals. Rules on secret profits apply with difficulty where the partner in fiduciary breach shares in secret profits disgorged to the partnership. These facts should lead us to question whether the designation as “agent” continues to be as important in understanding the totality of partnership law (beyond the partner’s ability purely to bind the firm). This perhaps mirrors developments in agency case law, as we question whether the label “agent” necessarily determines the extent of fiduciary duties (Prince Arthur Ikpechukwu Eze v Conway and anor [2019] EWCA Civ 88).
A key problem is the need to unravel the interaction of good faith and fiduciary duties within partnerships. In this exercise, partner to partner duties, on the one hand, and partner to firm duties, on the other, must be differentiated. Of particular interest is the heightened relevance of partner to partner duties at times of “stress” within partnerships, for example where an individual partner is being excluded from, or is resigning from, the partnership (as illustrated recently by Rennie v Rennie [2020] CSOH 49). It may be possible to draw on scholarship (Nolan and Conalgen) on what it means for fiduciaries to act in good faith.
The chapter takes into account differences between Scots law (where the partnership is a separate juridical person) and English law (where it is not). Analysis will draw upon different types of partnerships: the partner formed under the Partnership Act 1890; limited partnerships and limited liability partnerships.
UK law firm CM Murray (including recent Partnership Conference speaker Corinne Staves) has published a useful summary of the key provisions of the Bill which will affect partnerships and LLPs.
It is available at:
https://www.cm-murray.com/knowledge/most-significant-changes-to-companies-house-in-170-years/
Following on from the excellent papers given by Victoria Griffiths, senior policy advisor at BEIS, and journalist David Leask, at the Partnership Forum Conference last week, you might be interested to note that the Economic Crime and Corporate Transparency Bill 2022 has now been published.
The Bill is at:
https://bills.parliament.uk/bills/3339
Various explainers are at:
https://www.gov.uk/government/publications/economic-crime-and-corporate-transparency-bill-2022-factsheets
Delegates at yesterday's Partnership Conference asked about publications resulting from previous conferences (as well as the possibility of future publications).
Peer reviewed articles based on the papers given at the Inaugural Forum Conference in 2018 were published in a special issue of NibleJ (together with an article on which I subsequently gave a paper at the 2019 Conference). You can access this special issue (and all issues of NIBLeJ) at https://www.ntu.ac.uk/study-and-courses/courses/our-schools/nls/nottingham-insolvency-and-business-law-ejournal
For the special issue, just scroll down to 2018 and click the arrow to expand.
Best wishes, Elspeth