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SCHEDULE 4
Regulation 5


GENERAL AND CONSEQUENTIAL AMENDMENTS IN OTHER LEGISLATION


Insolvency Act 1986 c.45

     1.  - (1) Section 110 is amended as follows.

    (2) In subsection (1), after "sold" insert "(a)" and at the end insert - ", or (b) to a limited liability partnership (the "transferee limited liability partnership")."

    In subsection (2), for the words "sale", onwards substitute

      " sale-

      (a) in the case of the transferee company, shares, policies or other like interests in the company for distribution among the members of the transferor company, or

      (b) in the case of the transferee limited liability partnership, membership in the limited liability partnership for distribution among the members of the transferor company.".

    In subsection (4), for the words "may," onwards substitute

      " may-

      (a) in the case of the transferee company, in lieu of receiving cash, shares, policies or other like interests (or in addition thereto) participate in the profits of, or receive any other benefit from, the company, or

      (b) in the case of the transferee limited liability partnership, in lieu of receiving cash, or membership (or in addition thereto) participate in some other way in the profits of, or receive any other benefit from, the limited liability partnership."

Criminal Procedure (Scotland) Act 1995 c.46

     1. In section 70 (8) insert at the end-

      " ; and "officer" and "any person having or being one of the persons having the management of the affairs of the body corporate", in relation to a limited liability partnership, means a member of the limited liability partnership".

     2. In section 141(2), insert at the end-

      " ; and in sub-paragraph (b)(i) of this subsection references to the director or secretary or other official, in relation to a limited liability partnership, are to any member of the limited liability partnership".

     3. In section 143(3), insert at the end-

      " ; and in paragraph 3(b) of this subsection references to the managing director or the secretary, in relation to a limited liability partnership, are to any member of the limited liability partnership".

Requirements of Writing (Scotland) Act 1995 c.7

     4. In section 7 (7) after "companies," insert "limited liability partnerships,".

     5. After paragraph 3 of Schedule 2, insert-

    " Limited Liability Partnerships


     3A.  - (1) Except where an enactment expressly provides otherwise, where a granter of a document is a limited liability partnership, the document is signed by the limited liability partnership if it is signed on its behalf by a member of the limited liability partnership.

    (2) This Act is without prejudice to paragraph 9 of Schedule 1, paragraph 9 of Schedule 2, and paragraph 7 of Schedule 4, to the Insolvency Act 1986.

    (3) Sub-paragraphs (1) and (2) of this paragraph apply in relation to the signing of an alteration made to a document as they apply in relation to the signing of a document.

    (4) Where a granter of a document is a limited liability partnership, section 3 of and Schedule 1 to this Act shall have effect subject to the modifications set out in sub-paragraphs (5) and (6) below.

    (5) In section 3-

    (a) for subsection (1) there shall be substituted the following subsections-

        " (1) Subject to subsections (1A) to (7) below, where-

      (a) a document bears to have been subscribed on behalf of a limited liability partnership by a member of the limited liability partnership;

      (b) the document bears to have been signed by a person as a witness of the subscription of the member of the limited liability partnership and to state the name and address of the witness; and

      (c) nothing in the document, or in the testing clause or its equivalent, indicates-

        (i) that it was not subscribed on behalf of the limited liability partnership as it bears to have been so subscribed; or

        (ii) that it was not validly witnessed for any reason specified in paragraphs (a) to (e) of subsection (4) below,

      the document shall be presumed to have been subscribed by the limited liability partnership.

        (1A) Where a document does not bear to have been signed by a person as a witness of the subscription of the member of the limited liability partnership it shall be presumed to have been subscribed by the limited liability partnership if it bears to have been subscribed on behalf of the limited liability partnership by two members of the limited liability partnership.

        (1B) A presumption under subsection (1) or (1A) above as to subscription of a document does not include a presumption that a person bearing to subscribe the document as a member of the limited liability partnership was such member.";

    (b) in subsection (4) after paragraph (g) there shall be inserted the following paragraph-

      " (h) if the document does not bear to have been witnessed, but bears to have been subscribed on behalf of the limited liability partnership by two of the members of the limited liability partnership, that a signature bearing to be the signature of a member is not such a signature, whether by reason of forgery or otherwise;".

    (6) In paragraph 1 of Schedule 1-

    (a) for sub-paragraph (1) there shall be substituted the following sub-paragraphs-

        " (1) Subject to sub-paragraphs (1A) to (7) below, where-

      (a) an alteration to a document bears to have been signed on behalf of a limited liability partnership by a member of the limited liability partnership;

      (b) the alteration bears to have been signed by a person as a witness of the signature of the member of the limited liability partnership and to state the name and address of the witness; and

      (c) nothing in the document or alteration, or in the testing clause or its equivalent, indicates-

        (i) that the alteration was not signed on behalf of the limited liability partnership as it bears to have been so signed; or

        (ii) that the alteration was not validly witnessed for any reason specified in paragraphs (a) to (e) of sub-paragraph (4) below,

      the alteration shall be presumed to have been signed by the limited liability partnership.

        (1A) Where an alteration does not bear to have been signed by a person as a witness of the signature of the member of the limited liability partnership it shall be presumed to have been signed by the limited liability partnership if it bears to have been signed on behalf of the limited liability partnership by two members of the limited liability partnership.

        (1B) For the purposes of sub-paragraph (1)(b) above, the name and address of the witness may bear to be stated in the alteration itself or in the testing clause or its equivalent.

        (1C) A presumption under sub-paragraph (1) or (1A) above as to signing of an alteration to a document does not include a presumption that a person bearing to sign the alteration as a member of the limited liability partnership was such member";

    (b) in sub-paragraph (4) after paragraph (g) there shall be inserted the following-

           " ; or

      (h) if the alteration does not bear to have been witnessed, but bears to have been signed on behalf of the limited liability partnership by two of the members of the limited liability partnership, that a signature bearing to be the signature of a member is not such a signature, whether by reason of forgery or otherwise;".

Culpable officer provision

     6.  - (1) A culpable officer provision applies in the case of a limited liability partnership as if the reference in the provision to a director (or a person purporting to act as a director) were a reference to a member (or a person purporting to act as a member) of the limited liability partnership.

    (2) A culpable officer provision is a devolved provision in any Act or subordinate legislation (within the meaning of the Interpretation Act 1978 or the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999[17]) to the effect that where-

    (a) a body corporate is guilty of a particular offence, and

    (b) the offence is proved to have been committed with the consent or connivance of, or to be attributable to the neglect on the part of, (among others) a director of the body corporate,

he (as well as the body corporate) is guilty of the offence.

    (3) In this paragraph "devolved provision" means any provision that would be within devolved competence for the purposes of section 101 of the Scotland Act 1998.

EXPLANATORY NOTE

(This note is not part of the Regulations)

The Limited Liability Partnerships Act 2000 c.12. ("the 2000 Act") provided for the creation of limited liability partnerships ("LLPs") and for the making of regulations concerning them. These Regulations, which are made under sections 14(1) and (2), 15, 16 and 17(1) and (3) of that Act, regulate LLPs by applying to them, with appropriate modifications, the appropriate provisions of the existing law which relate to companies and partnerships.

The 2000 Act is of application to Great Britain. Section 19(3) of the 2000 Act provides that the Act shall be a pre-commencement enactment for the purposes of the Scotland Act 1998. Specifically, these Regulations:

The Regulations are structured in four parts accompanied by four schedules. They apply to LLPs, with appropriate modifications to reflect the structure of LLPs, a large number of the provisions contained within the Companies Act 1985 and the Insolvency Act 1986.

The Regulations amend the relevant primary legislation by way of general modifications which, provide that references to a company includes references to a limited liability partnership, and references to a director or officer include a reference to a member of an LLP. Throughout the Schedules to the Regulations there are references to designated members. This category of member is responsible for a number of administrative and filing duties of the LLP but is also representative of the LLP and its membership in circumstances such as the appointment, removal and remuneration of auditors.

Part I of the Regulations contains the citation, commencement, extent and interpretation provisions to be applied to the Regulations, and gives the date on which they come into force.

Part II of, and Schedule 1 to, the Regulations apply to LLPs certain provisions of the Companies Act 1985.

Part III of, and Schedules 2 and 3 to, the Regulations apply to LLPs the provisions of the First and Third Groups of Parts of the Insolvency Act 1986, with appropriate modifications. Schedule 2 to the Regulations lists those provisions contained in the First and Third Group of Parts of the Insolvency Act 1986. Schedule 3 lists those sections which have been modified or omitted in their application to LLPs.

The insolvency provisions as applied to LLPs include provisions for voluntary arrangements, receivership, winding-up and liquidations. The most notable modification of the provisions which apply to companies is, an additional section, section 214A.

The new section 214A provides that withdrawals made by members during the two years prior to the commencement of winding-up will be subject to claw back if it is proved that at the time of the withdrawal the member knew or had reasonable grounds for believing that the LLP was, or would be made, insolvent.

Part IV of, and Schedule 4 to, the Regulations apply a number of general and consequential amendments to other enactments.

Part IV of the Regulations apply to LLPs the Insolvency (Scotland) Rules 1986.

The Regulations apply to Scotland only.

 [1] 2000 c.12. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46) as read with section 19(3) of the Limited Liability Partnership Act 2000 ("the 2000 Act") which deemed the 2000 Act to be a pre-commencement enactment within the meaning of the Scotland Act 1998.back

[2] 1985 c.6.back

[3] 1986 c.45.back

[4] The provisions of the Insolvency Act 1986 applied by this regulation have been amended as follows: -section 57 was amended by section 3 of, the Insolvency Act 1994 (c.7); section 162 was amended by section 52 of, and Part III of Schedule 2 to, the Court of Session Act 1988 (c.36).back

[5] 1986 c.46.back

[6] 1989 c.40.back

[7] S.I. 1986/1915 as amended by S.I. 1987/1921 and S.I. 1999/1820back

[8] Section 36B was inserted by section 130(3) of the Companies Act 1989 and was substituted by section 14(1), Schedule 14 of the Requirements of Writing (Scotland) Act 1995 (c.7)back

[9] Section 462 was amended by section 74(1), (2), Schedule 8, paragraph 33(6), Schedule 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), section 14(2) and Schedule 5 of the Requirements of Writing (Scotland) Act 1985 (c.7) and section 439(1), Schedule 13, Part I of the Insolvency Act 1986.back

[10] Section 463 was amended by section 140 of the Companies Act 1989 (c.40) and sections 439(1), Schedule 13, Part I and section 438 and Schedule 12 of the Insolvency Act 1986.back

[11] Section 466 was amended by sections 130, 140 and 212 of, and paragraph 9 of Schedule 17 and Schedule 24 to, the Companies Act 1989 (c.40).back

[12] Section 486 was amended by section 438 of and Schedule 12 to the Insolvency Act 1986.back

[13] Section 206 was amended by article 2 of, and Part I of the Schedule to, S.I. 1986/1996.back

[14] Section 218 was amended by section 78 of the Companies Act 1989 (c.40).back

[15] Section 233 was amended by section 112 of, and paragraph 35 of Schedule 16 to, the Electricity Act 1989 (c.29), by section 190 of, and paragraph 78 of Schedule 25 to, the Water Act 1989 (c.15), by section 190 of, and paragraph 78 of Schedule 25 to, the Water Act 1989 (c.15), by section 203 of, and paragraph 43 of Schedule 20 to, the Broadcasting Act 1990 (c.42) and by sections 16 and 17 of, and paragraph 14 of Schedule 4 and Schedule 6 to, the Gas Act 1995 (c.45).back

[16] Certain entries in Column 5 of Schedule 10 were repealed by section 212 of and Schedule 24 to, the Companies Act 1989 (c.40).back

[17] S.I. 1999/1379back


ISBN 0-11-059629-3


 



© Crown copyright 2001
Prepared 10 April 2001

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