Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Litigation

Document Cited authorities 46 Cited in Related
Vincent
AuthorElspeth Berry
Pages127-144

Chapter 10 Litigation

This chapter identifies and explains those provisions which are particular to partnerships or LLPs. However, a comprehensive discussion of the litigation regime is outside the scope of this book and the reader is referred to the Civil Procedure Rules 19981(CPR) and the associated Practice Directions (PDs), including any updates,2and specialist litigation texts.3

10.1 GENERAL PARTNERSHIPS
10.1.1 Actions between the partnership and a third party

Jurisdiction


The rules generally applicable under the CPR apply. Unlike actions brought between partners (see 10.1.2), there are no special provisions and the High Court and county courts have concurrent jurisdiction over most actions.

The claim form


A claim by or against two or more persons alleged to be partners must be brought in the name under which the partnership carried on business at the time the cause of action accrued (PD 7A, paras 5A.1–3), unless the alleged partnership has no name, or it is inappropriate to use it (a caveat not explained

1SI 1998/3132.

2All available at www.justice.gov.uk/civil/procrules_fin/index.htm.

3Examples include: S Sime, A Practical Approach to Civil Litigation (Oxford University Press,

19th edn, 2016), and S Blake, A Practical Approach to Effective Litigation (Oxford University Press, 8th edn, 2015). For more detail, see A Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (Sweet and Maxwell, 3rd edn, 2013).

128 Partnership and LLP Law
further by the CPR). If requested, the partners must provide a written statement of the names and last known places of residence of all persons who were partners at the time when the cause of action accrued (PD 7A, paras 5B.1–3). In Kommalage v Sayathakumar (see further below),4the court observed that PD 7A, paras 5A and 5B (like PD 10, para 4.4; see further below) reflected s 9 of the Partnership Act which provided that a partner was liable for all debts and obligations of the firm incurred while he was a partner (see further 7.1.6).

The claim form must be headed with the title of the proceedings, including the full name of each party (PD 16, para 2.6). The full name means, in the case of a partnership (other than an LLP):

• where partners are being sued in the name of the partnership, the full name by which the partnership is known, together with the words ‘(A Firm)’; or

• where partners are being sued as individuals, the full unabbreviated name of each partner and the title by which he is known.

Service of the claim form on a partnership


Service may be effected on the partnership by any of the methods set out in CPR, r 6.3:

• personal service, by leaving it with a partner or a person who, at the time of service, has the control or management of the partnership business (a phrase which is not further defined) at the partnership’s principal place of business (CPR, r 6.5(3)(c));

• first class post, document exchange or other service which provides for delivery on the next business day in accordance with PD 6A;

• leaving it at the business address of a solicitor or European lawyer notified by the defendant or his solicitor as an address for service, or at another address for service provided by the defendant (CPR, rr 6.7–
6.8);
• fax or other means of electronic communication in accordance with PD 6A;

• a contractually agreed method (CPR, r 6.11);
• if personal service, service on a lawyer and service at another notified address do not apply, by leaving it at the usual or last known residence of the individual being sued in the name of the partnership, or at the

4Kommalage v Sayathakumar [2014] EWCA Civ 1832, [2015] 2 BCLC 131.

Litigation 129 principal or last known place of business of the partnership (CPR, r 6.9);
• where it appears to the court that there is a ‘good reason’ to authorise service by a method or a place not otherwise permitted, by any method authorised by the court (CPR, r 6.15). The relevant principles to be taken into account by the court are summarised in Barton v Wright Hassall LLP.5

CPR, r 6.9(2) requires an individual being sued in the business name of the partnership to be served at his usual or last known residence, or the principal or last known place of business of the partnership, and r 6.9(3) provides that where the claimant has reason to believe that the defendant no longer resides or carries on business there, it must take reasonable steps to ascertain the current address. In Planetree Nominees Ltd and Lorrimer v Howard Kennedy LLP,6the court held that the claim form had not been properly served in accordance with CPR, r 6.9. The defendant firm had been a partnership at the time the cause of action arose but had subsequently dissolved and become an LLP. The letter of claim had been sent to the LLP and asserted a claim against it, but the LLP pointed out that it was not the correct entity. The court considered that it was not clear that it was possible for a dissolved partnership to have a current place of business, particularly where the business had been transferred (here, to the LLP), but that in any event there was insufficient evidence that the address at which the claim form had been served was its current place of business. The court also considered that reasonable steps to ascertain an alternative address had not been undertaken before the claim form was served; in particular, no membership statement had been requested. In Trevor John Brooks v AH Brooks & Co (a firm) and others,7the court held that service at the firm’s address was not good service on two of the partners at the time the claim had arisen, because the claimant was aware that one had left the firm and that the other had ceased to be a partner and become an employee of it. The firm’s address was consequently not an address at which either was still carrying on business. The claimant was therefore required, pursuant to CPR, r 6.9(3), to take reasonable steps to ascertain a current address at which proceedings could be served.

CPR, r 6.15(2) enables the court to order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or an

5Barton v Wright Hassall LLP [2016] EWCA Civ 177, [2016] CP Rep 29 at [19].

6Planetree Nominees Ltd and Lorrimer v Howard Kennedy LLP [2016] EWHC 2302 (Ch).

7Trevor John Brooks v AH Brooks & Co (a firm) and others [2010] EWHC 2720 (Ch), [2011] 3
All ER 982.

130 Partnership and LLP Law
alternative place is good service. In Planetree Nominees Ltd and Lorrimer v Howard Kennedy LLP,8 the court noted that although the partners in the firm at the time the cause of action arose had become aware of the claim form by virtue of it having been sent to the LLP, the claimants had failed to explain why the claim form could not be served within its period of validity and the court considered the fact that the claimants had made no attempt to follow up the failure of the defendant’s solicitors to respond to an enquiry as to whether they were authorised to accept service to be fatal to their claim under CPR, r 6.15. The court therefore granted the defendant’s request for a declaration that service had not taken place. In Trevor John Brooks v AH Brooks & Co (a firm) and others,9 service had in fact been acknowledged (see below), but the court indicated that, had it been necessary, it would have acceded to the claimant’s application for an order pursuant to CPR, r 6.15(2) that the steps taken to bring the claim form to the attention of the former partners be deemed to be good service. One had been sent a copy by the solicitors for the present partners and had prepared a statement in which she said she was prepared to assist them in relation to the claim, while the other was aware of a potential claim, had corresponded with the claimant’s solicitors about it and lived with the other former partner. There would therefore have been ‘good reason’ as required by CPR, r 6.15 to authorise service at the firm’s address, and it would have been appropriate to make such an order.

Service must take place within the validity period of the claim form, and the claim form must have been issued before the expiry of any limitation period.

Acknowledgment of service on the partnership


Under the CPR a defendant may file and serve a defence to the claim, an admission, or an acknowledgment of service. The latter is used in order to challenge jurisdiction (on the grounds, for example, that a valid agreement to take the matter to arbitration exists or that the defendant was not a partner at the time the cause of action accrued) or to obtain further time for the filing of a defence. The rules...

To continue reading

Request your trial
Navigation index

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT