Answer ALL parts of the following question:
- Xavier, Yvonne and Zoe are recently qualified electricians. They wish to set up in business together providing electrical services but are unsure as to which form of business organization will suit them best. They are considering a general partnership, an LLP or a private company limited by shares. They will all work as electricians but will share other business tasks between them: Xavier will take charge of the finances and accounts, Yvonne will be in charge of equipment including three vans, and Zoe will look after the firm’s employees. They plan to employ a part time receptionist to answer the phone, and hope to employ another electrician if the business prospers. Both Xavier and Yvonne will contribute some of the capital needed to buy the vans and other equipment, but the firm will also need to take out a bank loan. Zoe will not contribute cash but will allow the business to operate from outbuildings on her land, which she will refurbish so as to make them suitable.
- Advise the parties on whether and why a general partnership, an LLP, or a private company limited by shares, is likely to be the most appropriate form of business organization for them.
Note: you should not simply explain why your preferred option is a good option, but why it is better than the other options.
- Advise the parties on any legal steps they should take to successfully form and operate the particular type of business which you recommended to them in your answer to a) above.
- Critically examine the differences between the limited partnership and the private fund limited partnership (PFLP). To what extent do you consider that the new provisions applying to PFLPs should be applied to all limited partnerships?
The main legislative provisions that you will refer to are:
The Partnership Act 1890 (“Partnership Act”)
The Limited Partnerships Act 1907 (“Limited Partnerships Act”)
The Limited Liability Partnerships Act 2000 (“LLP Act”)
The Limited Liability Partnerships Regulations 2001 SI 2001/1090 (“LLP Regulations 2001”)
The Limited Liability Partnerships Regulations (Application of Companies Act 2006) 2009 SI 2009/1804 (“LLP Regulations 2009”)
The Companies Act 2006 (“CA 2006”)
The Insolvent Partnerships Order 1994 SI 1994/2421 (“IPO”)
The Company Directors Disqualification Act 1986 (“CDDA”)
The Insolvency Act 1986 (“IA 1986”)
FORMATION OF THE BUSINESS
Partnership law
- Relevant provisions of the Partnership Act, particularly ss1, 2, 19 and 45
- Relevant provisions of the Limited Partnerships Act, particularly ss4-14
- Part 41 CA 2006 (which applies to partnership names) Companies House information on limited partnerships
LLP law
- Relevant provisions of the LLP Act, particularly ss1-4 and 8
- Relevant provisions of the LLP Regulations 2009, particularly Parts 3, 4 and 5
- Relevant provisions of the LLP Regulations 2001, particularly Reg 7
Companies House information on forming an LLP
Company law
- Relevant provisions of CA 2006, particularly ss1-28 and 51, Part 5 and Part 41
- Sch 1 Companies (Model Articles) Regulations 2008 SI 2008/3229
Companies House information on forming a private limited company;
SEPARATE LEGAL PERSONALITY
AND
LIMITED LIABILITY
Partnership Law
- Relevant provisions of the Partnership Act, particularly ss9-12,14,17 and 36
- Relevant provisions of the Limited Partnerships Act, particularly ss4-7
- S3 of the Civil Liability (Contribution) Act 1978
Part V of Law Commission Report No 283/Scottish Law Commission Report No 192 Partnership Law, 2003, HMSO, available on the Law Commission’s website
LLP law
- Relevant provisions of the LLP Act, particularly ss1, 3, 4A and 6(4)
- Relevant provisions of the LLP Regulations 2009, particularly Reg 7
Company law
- Relevant provisions of the CA 2006, particularly s51
- Salomon v A Salomon and Co Ltd [1897] AC 22
- Williams and another v Natural Life Health Foods Ltd and another [1998] 2 All ER 577
THE PERSONNEL OF A BUSINESS
Partnership law
- Relevant provisions of the Partnership Act, particularly ss1, 19 and 24-26
- Relevant provisions of the Limited Partnerships Act, particularly s6
LLP law
- Relevant provisions of the LLP Act, particularly ss4 and 8
- Relevant provisions of the LLP Regulations 2001, particularly Regs 7 and 8
Company law
- Relevant provisions of CA 2006, particularly ss8 and 12 and Pt10 Ch 1
- The Companies (Model Articles) Regulations 2008 SI 2008/3229, Sch 1 (model articles for a private company limited by shares)
THE AGENCY AND AUTHORITY OF THE PERSONNEL IN A BUSINESS
Partnership law
- Relevant provisions of the Partnership Act, particularly ss5, 6, 10, 11 and 12
LLP law
- Relevant provisions of the LLP Act, particularly ss5 and 6
- Relevant provisions of the LLP Regulations 2001, particularly Reg 7
- Relevant provisions of the LLP Regulations 2009
Company law
- Relevant provisions of CA 2006, particularly ss39-41
- Relevant provisions of Sch 1 Companies (Model Articles) Regulations 2008 SI 2008/3229
TAXATION
I don’t have any information
RIGHTS AND DUTIES OF THE PERSONNEL IN A BUSINESS
Partnership law
- Relevant provisions of the Partnership Act, particularly ss20, 24, 28, 29 and 30
LLP law
- Relevant provisions of the LLP Act, particularly s5
- Relevant provisions of the LLP Regulations 2001, particularly Reg 7
- Relevant provisions of the LLP Regulations 2009, including Reg 48 which contains s994 CA 2006 as amended
- F & C Alternative Investment (Holdings) Ltd v Barthelemy and others [2011] EWHC 1731 (Ch), [2012] Ch 613, paras 207-220
Company law
- Relevant provisions of CA 2006, particularly s33, 170-180, 260 et seq and 994
THE FINANCES OF THE BUSINESS
Partnership law
- Relevant provisions of the Partnership Act, particularly ss24, 42 and 44
- Relevant provisions of the Limited Partnerships Act, particularly ss4 and 6
Either Popat v Shonchhatra [1997] 3 All ER 800, Miles v Clarke [1953] 1 All ER
LLP law
- Relevant provisions of the LLP Act, particularly s1(4)
- relevant provisions of the LLP Regulations 2009, particularly parts 6,7 and 9
- The Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008/1911
Company law
- relevant provisions of CA 2006, particularly ss9-10, 380-389, 415-419, 423-425, 431-432, 441, 540-577, 641-649 and 658-723
- relevant provisions of the model Articles, particularly Arts 19 and 30
DISSOLUTION, WINDING UP AND INSOLVENCY
Partnership law
- Relevant provisions of the Partnership Act, particularly ss32, 33, 35, 37 and 38
- Relevant provisions of the Limited Partnerships Act
- Relevant provisions of the IPO 1994 – including modified provisions of the IA 1986, particularly ss122, 123, 124, 175, 221, 221A, 222, 264, 267, 268, 272, 288, 328 et seq
LLP law
- Relevant provisions of the LLP Act
- Relevant provisions of the LLP Regulations 2001 – including modified provisions of the IA 1986, particularly s441
- Relevant provisions of the LLP Regulations 2009 on striking off
- Relevant provisions of the Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008/1911 (note also the Small Limited Liability Partnerships (Accounts) Regulations 2008/1912 and the Large and Medium-sized Limited Liability Partnerships (Accounts) Regulations 2008/1911
