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September 1997
45.146 Introduction
This part of the chapter deals with petitions against partnerships and their members. They are administered under the Insolvency Act 1986 with modifications under the Insolvent Partnerships Order 1994. Insolvent partnerships are wound up as unregistered companies under Part V of the Insolvency Act 1986 but the Act is modified differently by the Insolvent Partnerships Order depending upon the particular route chosen by the petitioner.
The initial choice by the petitioner is:
45.147 Modifications to the Act
Sections of the Insolvency Act which have been modified by the Insolvent Partnerships Order 1994 are included in the margins of the following paragraphs with ‘M’ next to them, followed by the reference to the Insolvent Partnerships Order (eg s221 of the Insolvency Act as modified by Article 7, Schedule 3, Paragraph 3, will appear in the margin as s221 (M), art 7, Sch 3 (3)).
45.148 Who may be sued
A partnership may be sued (and may sue) in the firm’s name (Rules of the Supreme Court 1965, Ord 81, r 1 County Court Rules 1981, Ord 5, r9 (1)). In the High Court partners must acknowledge service in their own names although the action will continue in the name of the firm. The action is against those who were partners when the cause of action arose including those who have retired or have been expelled and the estates of deceased partners. An incoming partner cannot be sued on a cause of action which arose before he joined unless he has agreed with the plaintiff that he will be liable [Wilsford v Wood (1794) 1 Esp 182] or he agreed on joining to accept former liabilities, in which case he could be joined in as a third party.
45.149 Dissolution of partnership
Where a plaintiff knows that there has been a dissolution of the partnership through the departure of a partner, the writ or summons must be served on each person whom it is sought to make liable in the action (even where the writ is issued in the name of the firm). If the plaintiff does not serve a former partner, that partner cannot later be liable to execution against his personal assets for the debt, though he may be liable to an action by his former partners (Wigram v Cox & Co [1984] 1 QB 792).
Notes: [RSC 1965,Ord 81,r3(3)CCR 1981,Ord 7,r13(2)]45.150 Voluntary winding up
No insolvent partnership can be voluntarily wound up under the Insolvency Act.
Notes: [s221](4) (M), art 7,art 8, art 10]45.151 High Court District Registry
No petition dealing with insolvency proceedings against a partnership which involves the winding up of the partnership business as an unregistered company and concurrent petitions against members may be presented in the District Registry of the High Court.
Notes: [s117(6) (M),art 8, art 10)]45.152 Forms
Article 17, Schedule 9 of the Insolvent Partnerships Order contains
statutory forms for the statutory demand, various forms of petition, advertisement of the petition and affidavits necessary to wind up partnerships and for petitions against individual members.
[Back to Part 16 - Application Under Debtor's Petition] [On to Part 18 - Winding Up on Creditor's Petition Where no Concurrent Petition is presented against a Member]