Internal Disputes and Departures
| Author | Elspeth Berry |
| Pages | 113-126 |
Chapter 9
Internal Disputes and Departures
9.1 GENERAL PARTNERSHIPS
This section deals first with possible mechanisms for dispute resolution (see
9.1.1–9.1.3), then with possible outcomes (see 9.1.4–9.1.8), and finally with the particular issues arising on the departure of a partner (see 9.1.9).
9.1.1 Internal methods of dispute resolution
If the partners themselves can resolve a dispute, this is likely to be the cheapest, quickest and most private option. A well-drafted agreement can assist by eliminating or at least reducing the areas of possible confusion and conflict, and by specifying alternative methods for resolving disputes (see
9.1.2).
9.1.2 Alternative dispute resolution
A dispute may only be submitted to alternative dispute resolution (ADR) if all parties agree. Rather than trying to reach agreement when a dispute arises, it is sensible to provide for some form of ADR in the partnership agreement, since if a dispute cannot be settled internally, it is unlikely that the parties will be then able to agree on any ADR procedure. In addition, Civil Procedure Rules 1998
Arbitration is a process by which an arbitrator, who is appointed by the parties, reaches a decision on the dispute which is binding on them. An arbitration clause in a partnership agreement is binding on the parties and should specify how an arbitrator is to be appointed, what powers he will have, and any right of appeal. If such a clause exists then the court must grant a stay of any court proceedings if an application for such a stay and a referral to arbitration is made (s 9 of the Arbitration Act 1996). The potential advantages of arbitration as compared to litigation are privacy, speed, party autonomy and flexibility over the process, and greater finality since the options for appeal are usually more limited than in litigation. It can, however, be more expensive, as an arbitrator’s fees may be considerably greater than those of the court. The Chartered Institute of Arbitrators maintains a register of qualified arbitrators and can assist in setting up an arbitration, including the appointment of an arbitrator.
Mediation is a process by which disputing parties engage the assistance of a neutral third party, the mediator, to act as a facilitator. The mediator has no authority to make any binding decisions, but helps the parties to resolve their dispute by negotiated agreement. The parties have nothing to lose (other than the time and cost involved in the hearing) and any party may abandon the procedure at any time. A mediation clause in a partnership agreement cannot be used to force a resolution, since participation in mediation is voluntary.
Two of the main bodies that deal with mediation in the commercial arena are the Centre for Dispute Resolution (CEDR) and the Alternative Dispute Resolution Group (the ADR Group). Both are networks of independent mediators, who can provide a range of ADR services.
9.1.3 Litigation
In the absence of an arbitration clause, any partner has the option of going to court to resolve a dispute (see further 10.1.2). There are, however, significant disadvantages to this course of action. Firstly, it exposes the dispute to public scrutiny, which may deter partners, potential partners, employees or clients from future involvement with the partnership. Secondly, it is likely to increase acrimony and reduce the likelihood of the partners continuing in business together thereafter. Thirdly, it can be very expensive, and the judgments given in some partnership disputes include adverse judicial comment on the lack of proportion between the sums at issue and the costs of the litigation. Fourthly, it is unlikely to produce a speedy outcome.
9.1.4 Impact on the partnership agreement
Whatever the resolution of the dispute, it is likely to be appropriate to amend the partnership agreement, or indeed draft one where none previously existed, in order to reflect the resolution and avoid a similar dispute in the future, and to provide improved dispute resolution procedures.
The partnership relationship is based on contract, and as a matter of contract law one party may accept a repudiatory breach of contract by the other and thereby bring the contract to an end. In Hurst v Bryk
9.1.5 Departure of a partner
A partner may leave the partnership in a number of ways: by death or bankruptcy, by expulsion (see 9.1.6) or, subject to contrary agreement, by giving notice to the other partners (see further 11.1.1).
In the absence of contrary agreement, ss 26(1) and 32 of the Partnership Act provide that any partner may retire by giving notice to all other partners and that this will result automatically in the dissolution of the partnership (see
Ch 455.
116 Partnership and LLP Law
11.1.2). It is advisable for the notice to be in writing to reduce the possibility of future disputes as to whether it was properly given.
The issues arising on departure are discussed at 9.1.9.
9.1.6 Expulsion
There is no power to expel unless it has been expressly agreed (s 25 of the Partnership Act). It is advisable to include provision for suspension when grounds for expulsion are suspected. It may also be advisable to include a provision that the partner being suspended or expelled does not have a vote on the decision.
The courts have laid down two conditions which must be satisfied if an expulsion is to be valid.
Firstly, the agreed grounds for expulsion must cover the particular complaint. In...
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