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The Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009

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The Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009 List of acts
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    Wills and probate
 
Crown Copyright Acknowledged
CONTENTS

Draft Statutory Instruments

2009 No. 0000

Limited Liability Partnerships

The Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009

Made                                                                        2009

Coming into force in accordance with regulation 2

PART 1

PART 2

PART 3 LLP

PART 4 LLP

PART 5 LLP

PART 6

PART 7

PART 8 LLP

PART 9 LLP

PART 10

PART 11

PART 12

PART 13

PART 14

PART 15

PART 16

PART 17

PART 18

Signature

SCHEDULE 1 TRANSITIONAL PROVISIONS: APPLICATION OF PROVISIONS OF COMPANIES ACT 2006

SCHEDULE 2 TRANSITIONAL PROVISIONS: NORTHERN IRELAND LLPs

SCHEDULE 3 CONSEQUENTIAL AMENDMENTS AND REVOCATIONS

Explanatory Note

 

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 15 and 17 of the Limited Liability Partnerships Act 2000(1) and sections 1101, 1292, 1294 and 1296 of the Companies Act 2006(2).

In accordance with section 17(4) and (5)(b) of the Limited Liability Partnerships Act 2000 and sections 1101(2), 1290 and 1294(6) of the Companies Act 2006, a draft of this instrument was laid before Parliament and approved by a resolution of each House of Parliament.

PART 1

GENERAL INTRODUCTORY PROVISIONS

Citation

1.  These Regulations may be cited as the Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009.

Commencement

2.—(1) The provisions of these Regulations come into force as follows.

(2) Regulations 8, 64, 77, 80 and 81 of, and paragraphs 6 and 7 of Schedule 3 to, these Regulations come into force on the day after the Regulations are made for the purpose of enabling the exercise of powers to make regulations or orders by statutory instrument.

(3) Otherwise, the Regulations come into force on 1st October 2009.

Interpretation

3.—(1) In these Regulations “LLP” means a limited liability partnership registered under the Limited Liability Partnerships Act 2000.

(2) In these Regulations, unless the context otherwise requires—

(a)any reference to a numbered Part, section or Schedule is to the Part, section or Schedule so numbered in the Companies Act 2006;

(b)references in provisions applied to LLPs—

(i)to provisions of the Companies Act 2006, or

(ii)to provisions of instruments made under that Act,

are to those provisions as applied to LLPs by these Regulations or by the Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008(1);

(c)references in provisions applied to LLPs to provisions of the Insolvency Act 1986(2) or the Insolvency (Northern Ireland) Order 1989(3) are to those provisions as applied to LLPs by the Limited Liability Partnerships Regulations 2001(4) or the Limited Liability Partnerships Regulations (Northern Ireland) 2004(5).

PART 2

FORMALITIES OF DOING BUSINESS

Formalities of doing business under the law of England and Wales or Northern Ireland

4.  Sections 43 to 47 apply to LLPs, modified so that they read as follows—

“LLP contracts

43.—(1) Under the law of England and Wales or Northern Ireland a contract may be made—

(a)by an LLP, by writing under its common seal, or

(b)on behalf of an LLP, by a person acting under its authority, express or implied.

(2) This is without prejudice to section 6 of the Limited Liability Partnerships Act 2000 (c. 12) (members as agents).

(3) Any formalities required by law in the case of a contract made by an individual also apply, unless a contrary intention appears, to a contract made by or on behalf of an LLP.

Execution of documents

44.—(1) Under the law of England and Wales or Northern Ireland a document is executed by an LLP—

(a)by the affixing of its common seal, or

(b)by signature in accordance with the following provisions.

(2) A document is validly executed by an LLP if it is signed on behalf of the LLP—

(a)by two members, or

(b)by a member of the LLP in the presence of a witness who attests the signature.

(3) A document signed in accordance with subsection (2) and expressed, in whatever words, to be executed by the LLP has the same effect as if executed under the common seal of the LLP.

(4) In favour of a purchaser a document is deemed to have been duly executed by an LLP if it purports to be signed in accordance with subsection (2).

A “purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property.

(5) Where a document is to be signed by a person on behalf of more than one LLP, or on behalf of an LLP and a company, it is not duly signed by that person for the purposes of this section unless he signs it separately in each capacity.

(6) References in this section to a document being (or purporting to be) signed by a member are to be read, in a case where that member is a firm, as references to its being (or purporting to be) signed by an individual authorised by the firm to sign on its behalf.

(7) This section applies to a document that is (or purports to be) executed by an LLP in the name of or on behalf of another person whether or not that person is also an LLP.

Common seal

45.—(1) An LLP may have a common seal, but need not have one.

(2) An LLP which has a common seal shall have its name engraved in legible characters on the seal.

(3) If an LLP fails to comply with subsection (2) an offence is committed by—

(a)the LLP, and

(b)every member of the LLP who is in default.

(4) A member of an LLP, or a person acting on behalf of an LLP, commits an offence if he uses, or authorises the use of, a seal purporting to be a seal of the LLP on which its name is not engraved as required by subsection (2).

(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(6) This section does not form part of the law of Scotland.

Execution of deeds

46.—(1) A document is validly executed by an LLP as a deed for the purposes of section 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989 (c. 34) and for the purposes of the law of Northern Ireland if, and only if—

(a)it is duly executed by the LLP, and

(b)it is delivered as a deed.

(2) For the purposes of subsection (1)(b) a document is presumed to be delivered upon its being executed, unless a contrary intention is proved.

Execution of deeds or other documents by attorney

47.—(1) Under the law of England and Wales or Northern Ireland an LLP may, by instrument executed as a deed, empower a person, either generally or in respect of specified matters, as its attorney to execute deeds or other documents on its behalf.

(2) A deed or other document so executed, whether in the United Kingdom or elsewhere, has effect as if executed by the LLP.”.

Formalities of doing business under the law of Scotland

5.  Section 48 applies to LLPs, modified so that it reads as follows—

“Execution of documents by LLPs: Scotland

48.—(1) The following provisions form part of the law of Scotland only.

(2) Notwithstanding the provisions of any enactment, an LLP need not have a common seal.

(3) For the purposes of any enactment—

(a)providing for a document to be executed by an LLP by affixing its common seal, or

(b)referring (in whatever terms) to a document so executed,

a document signed or subscribed by or on behalf of the LLP in accordance with the provisions of the Requirements of Writing (Scotland) Act 1995 (c. 7) has effect as if so executed.”.

Official seal for use abroad

6.  Section 49 applies to LLPs, modified so that it reads as follows—

“Official seal for use abroad

49.—(1) An LLP that has a common seal may have an official seal for use outside the United Kingdom.

(2) The official seal must be a facsimile of the LLP’s common seal, with the addition on its face of the place or places where it is to be used.

(3) The official seal when duly affixed to a document has the same effect as the LLP’s common seal.

This subsection does not extend to Scotland.

(4) An LLP having an official seal for use outside the United Kingdom may—

(a)by writing under its common seal, or

(b)as respects Scotland, by writing subscribed in accordance with the Requirements of Writing (Scotland) Act 1995,

authorise any person appointed for the purpose to affix the official seal to any deed or other document to which the LLP is party.

(5) As between the LLP and a person dealing with such an agent, the agent’s authority continues—

(a)during the period mentioned in the instrument conferring the authority, or

(b)if no period is mentioned, until notice of the revocation or termination of the agent’s authority has been given to the person dealing with him.

(6) The person affixing the official seal must certify in writing on the deed or other document to which the seal is affixed the date on which, and place at which, it is affixed.”.

Other matters

7.  Sections 51 and 52 apply to LLPs, modified so that they read as follows—

“Pre-incorporation contracts, deeds and obligations

51.—(1) A contract that purports to be made by or on behalf of an LLP at a time when the LLP has not been formed has effect, subject to any agreement to the contrary, as one made with the person purporting to act for the LLP or as agent for it, and he is personally liable on the contract accordingly.

(2) Subsection (1) applies—

(a)to the making of a deed under the law of England and Wales or Northern Ireland, and

(b)to the undertaking of an obligation under the law of Scotland,

as it applies to the making of a contract.

Bills of exchange and promissory notes

52.  A bill of exchange or promissory note is deemed to have been made, accepted or endorsed on behalf of an LLP if made, accepted or endorsed in the name of, or by or on behalf or on account of, the LLP by a person acting under its authority.”.

PART 3

AN LLP’S NAME

CHAPTER 1

GENERAL REQUIREMENTS

Prohibited names and sensitive words and expressions

8.  Sections 53 to 56 apply to LLPs, modified so that they read as follows—

“Prohibited names

53.  An LLP must not be registered under the Limited Liability Partnerships Act 2000 (c. 12) by a name if, in the opinion of the Secretary of State—

(a)its use by the LLP would constitute an offence, or

(b)it is offensive.

Names suggesting connection with government or public authority

54.—(1) The approval of the Secretary of State is required for an LLP to be registered under the Limited Liability Partnerships Act 2000 (c. 12) by a name that would be likely to give the impression that the LLP is connected with—

(a)Her Majesty’s Government, any part of the Scottish Administration or Her Majesty’s Government in Northern Ireland,

(b)a local authority, or

(c)any public authority specified for the purposes of this section by regulations made by the Secretary of State.

(2) For the purposes of this section—

“local authority” means—

(a)a local authority within the meaning of the Local Government Act 1972 (c. 70), the Common Council of the City of London or the Council of the Isles of Scilly,

(b)a council constituted under section 2 of the Local Government etc (Scotland) Act 1994 (c. 39), or

(c)a district council in Northern Ireland;

“public authority” includes any person or body having functions of a public nature.

(3) Regulations under this section are subject to affirmative resolution procedure.

Other sensitive words or expressions

55.—(1) The approval of the Secretary of State is required for an LLP to be registered under the Limited Liability Partnerships Act 2000 (c. 12) by a name that includes a word or expression for the time being specified in regulations made by the Secretary of State under this section.

(2) Regulations under this section are subject to approval after being made.

Duty to seek comments of government department or other specified body

56.—(1) The Secretary of State may by regulations under—

(a)section 54 (name suggesting connection with government or public authority), or

(b)section 55 (other sensitive words or expressions),

require that, in connection with an application for the approval of the Secretary of State under that section, the applicant must seek the view of a specified Government department or other body.

(2) Where such a requirement applies, the applicant must request the specified department or other body (in writing) to indicate whether (and if so why) it has any objections to the proposed name.

(3) Where a request under this section is made in connection with an application for the registration of an LLP under the Limited Liability Partnerships Act 2000 (c. 12), the application must—

(a)include a statement that a request under this section has been made, and

(b)be accompanied by a copy of any response received.

(4) Where a request under this section is made in connection with a change in an LLP’s name, the notice of the change sent to the registrar must—

(a)include a statement by a designated member of the LLP that a request under this section has been made, and

(b)be accompanied by a copy of any response received.

(5) In this section “specified” means specified in the regulations.”.

Permitted characters etc

9.  Section 57 applies to LLPs, modified so that it reads as follows—

“Permitted characters etc

57.—(1) The provisions of the Company and Business Names (Miscellaneous Provisions) Regulations 2009 (S.I. 2009/1085) relating to the characters, signs or symbols and punctuation that may be used in a registered name apply to LLPs.

(2) Those provisions are—

(a)regulation 2 and Schedule 1, and

(b)any other provisions of those Regulations having effect for the purpose of those provisions.

(3) In those provisions as they apply to LLPs—

(a)for “company” substitute “LLP”, and

(b)for “the Act” substitute “the Limited Liability Partnerships Act 2000”.

(4) An LLP may not be registered under the Limited Liability Partnerships Act 2000 (c. 12) by a name that consists of or includes anything that is not permitted in accordance with the provisions applied by this section.”.

Inappropriate use of indications of company type or legal form

10.  Section 65 applies to LLPs, modified so that it reads as follows—

“Inappropriate use of indications of company type or legal form

65.—(1) The provisions of the Company and Business Names (Miscellaneous Provisions) Regulations 2009 (S.I. 2009/1085) relating to inappropriate use of indications of company type or legal form apply to LLPs.

(2) Those provisions are—

(a)regulation 4 and Schedule 2, and

(b)any other provisions of those Regulations having effect for the purpose of those provisions.

(3) As applied to LLPs regulation 4 is modified so as to read as follows—

“4.—(1) An LLP must not be registered under the Limited Liability Partnerships Act 2000 (c. 12) by a name that includes in any part of the name—

(a)an expression or abbreviation specified in inverted commas in paragraph 3(a) to (o) or (r) to (v) in Schedule 2 (other than the abbreviation “LLP” or “PAC” (with or without full stops) at the end of its name), or

(b)an expression or abbreviation specified as similar.

(2) An LLP must not be registered under the Limited Liability Partnerships Act 2000 by a name that includes immediately before the expression “LIMITED LIABILITY PARTNERSHIP” OR “PARTNERIAETH ATEBOLRWYDD CYFYNGEDIG” or the abbreviations “LLP” or “PAC” an abbreviation specified in inverted commas in paragraph 3(v) of that Schedule (or any abbreviation specified as similar)”.”.

CHAPTER 2

SIMILARITY TO OTHER NAMES

Similarity to other name on registrar’s index

11.  Sections 66 to 68 apply to LLPs, modified so that they read as follows—

“Name not to be the same as another in the index

66.—(1) An LLP must not be registered under the Limited Liability Partnerships Act 2000 (c. 12) by a name that is the same as another name appearing in the registrar’s index of company names(1).

(2) The provisions of the Company and Business Names (Miscellaneous Provisions) Regulations 2009 (S.I. 2009/1085) supplementing this section apply to LLPs.

(3) Those provisions are—

(a)regulation 7 and Schedule 3 (matters that are to be disregarded and words, expressions, signs and symbols that are to be regarded as the same),

(b)regulation 8 (consent to registration of a name which is the same as another in the registrar’s index of company names), and

(c)any other provisions of those Regulations having effect for the purpose of those provisions.

(4) In regulation 8 as applied to LLPs—

(a)for “a company” or “the company” substitute “an LLP” or “the LLP”,

(b)for “Company Y” substitute “LLP Y”, and

(c)in paragraph (1), for “the Act” substitute “the Limited Liability Partnerships Act 2000”.

Power to direct change of name in case of similarity to existing name

67.  The Secretary of State may direct an LLP to change its name if it has been registered in a name that is the same as or, in the opinion of the Secretary of State, too like—

(a)a name appearing at the time of the registration in the registrar’s index of company names, or

(b)a name that should have appeared in that index at that time.

Direction to change names: supplementary provisions

68.—(1) The following provisions have effect in relation to a direction under section 67 (power to direct change of name in case of similarity to existing name).

(2) Any such direction—

(a)must be given within twelve months of the LLP’s registration by the name in question, and

(b)must specify the period within which the LLP is to change its name.

(3) The Secretary of State may by a further direction extend that period.

Any such direction must be given before the end of the period for the time being specified.

(4) A direction under section 67 or this section must be in writing.

(5) If an LLP fails to comply with the direction, an offence is committed by—

(a)the LLP, and

(b)every designated member of the LLP who is in default.

(6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.”.

Similarity to other name in which person has goodwill

12.  Sections 69 to 74 apply to LLPs, modified so that they read as follows—

“Objection to LLP’s registered name

69.—(1) A person (“the applicant”) may object to an LLP’s registered name on the ground—

(a)that it is the same as a name associated with the applicant in which he has goodwill, or

(b)that it is sufficiently similar to such a name that its use in the United Kingdom would be likely to mislead by suggesting a connection between the LLP and the applicant.

(2) The objection must be made by application to a company names adjudicator (see section 70).

(3) The LLP concerned shall be the primary respondent to the application.

Any of its members may be joined as respondents.

(4) If the ground specified in subsection (1)(a) or (b) is established, it is for the respondents to show—

(a)that the name was registered before the commencement of the activities on which the applicant relies to show goodwill; or

(b)that the LLP—

(i)is operating under the name, or

(ii)is proposing to do so and has incurred substantial start-up costs in preparation, or

(iii)was formerly operating under the name and is now dormant; or

(c)that the name was registered in the ordinary course of an LLP formation business and the LLP is available for sale to the applicant on the standard terms of that business; or

(d)that the name was adopted in good faith; or

(e)that the interests of the applicant are not adversely affected to any significant extent.

If none of those is shown, the objection shall be upheld.

(5) If the facts mentioned in subsection (4)(a), (b) or (c) are established, the objection shall nevertheless be upheld if the applicant shows that the main purpose of the respondents (or any of them) in registering the name was to obtain money (or other consideration) from the applicant or prevent him from registering the name.

(6) If the objection is not upheld under subsection (4) or (5), it shall be dismissed.

(7) In this section “goodwill” includes reputation of any description.

Company names adjudicators

70.—(1) The Secretary of State shall appoint persons to be company names adjudicators.

(2) The persons appointed must have such legal or other experience as, in the Secretary of State’s opinion, makes them suitable for appointment.

(3) An adjudicator—

(a)holds office in accordance with the terms of his appointment,

(b)is eligible for re-appointment when his term of office ends,

(c)may resign at any time by notice in writing given to the Secretary of State, and

(d)may be dismissed by the Secretary of State on the ground of incapacity or misconduct.

(4) One of the adjudicators shall be appointed Chief Adjudicator.

He shall perform such functions as the Secretary of State may assign to him.

(5) The other adjudicators shall undertake such duties as the Chief Adjudicator may determine.

(6) The Secretary of State may—

(a)appoint staff for the adjudicators;

(b)pay remuneration and expenses to the adjudicators and their staff;

(c)defray other costs arising in relation to the performance by the adjudicators of their functions;

(d)compensate persons for ceasing to be adjudicators.

Procedural rules

71.—(1) The Company Names Adjudicator Rules 2008 (S.I. 2008/1738) apply to LLPs.

(2) As they apply to LLPs, omit—

(a)in rule 3(6) (persons joined as respondent), the reference to a director of the primary respondent;

(b)rule 13(2) (registered office treated as address for service).

Decision of adjudicator to be made available to public

72.—(1) A company names adjudicator must, within 90 days of determining an application under section 69, make his decision and his reasons for it available to the public.

(2) He may do so by means of a website or by such other means as appear to him to be appropriate.

Order requiring name to be changed

73.—(1) If an application under section 69 is upheld, the adjudicator shall make an order—

(a)requiring the respondent LLP to change its name to one that is not an offending name, and

(b)requiring all the respondents—

(i)to take all such steps as are within their power to make, or facilitate the making, of that change, and

(ii)not to cause or permit any steps to be taken calculated to result in another LLP being registered with a name that is an offending name.

(2) An “offending name” means a name that, by reason of its similarity to the name associated with the applicant in which he claims goodwill, would be likely—

(a)to be the subject of a direction under section 67 (power of Secretary of State to direct change of name), or

(b)to give rise to a further application under section 69.

(3) The order must specify a date by which the respondent LLP’s name is to be changed and may be enforced—

(a)in England and Wales or Northern Ireland, in the same way as an order of the High Court;

(b)in Scotland, in the same way as a decree of the Court of Session.

(4) If the respondent LLP’s name is not changed in accordance with the order by the specified date, the adjudicator may determine a new name for the LLP.

(5) If the adjudicator determines a new name for the respondent LLP he must give notice of his determination—

(a)to the applicant,

(b)to the respondents, and

(c)to the registrar.

(6) For the purposes of this section an LLP’s name is changed when the change takes effect in accordance with paragraph 5(4) in Part 1 of the Schedule to the Limited Liability Partnerships Act 2000 (c. 12) (on the issue of the certificate of the change of name).

Appeal from adjudicator’s decision

74.—(1) An appeal lies to the court from any decision of a company names adjudicator to uphold or dismiss an application under section 69.

(2) Notice of appeal against a decision upholding an application must be given before the date specified in the adjudicator’s order by which the respondent LLP’s name is to be changed.

(3) If notice of appeal is given against a decision upholding an application, the effect of the adjudicator’s order is suspended.

(4) If on appeal the court—

(a)affirms the decision of the adjudicator to uphold the application, or

(b)reverses the decision of the adjudicator to dismiss the application,

the court may (as the case may require) specify the date by which the adjudicator’s order is to be complied with, remit the matter to the adjudicator or make any order or determination that the adjudicator might have made.

(5) If the court determines a new name for the LLP it must give notice of the determination—

(a)to the parties to the appeal, and

(b)to the registrar.”.

CHAPTER 3

OTHER POWERS OF THE SECRETARY OF STATE

Provision of misleading information etc

13.  Sections 75 and 76 apply to LLPs, modified so that they read as follows—

“Provision of misleading information etc

75.—(1) If it appears to the Secretary of State—

(a)that misleading information has been given for the purposes of an LLP’s registration by a particular name, or

(b)that an undertaking or assurance has been given for that purpose and has not been fulfilled,

the Secretary of State may direct the LLP to change its name.

(2) Any such direction—

(a)must be given within five years of the LLP’s registration by that name, and

(b)must specify the period within which the LLP is to change its name.

(3) The Secretary of State may by a further direction extend the period within which the LLP is to change its name.

Any such direction must be given before the end of the period for the time being specified.

(4) A direction under this section must be in writing.

(5) If an LLP fails to comply with a direction under this section, an offence is committed by—

(a)the LLP, and

(b)every designated member of the LLP who is in default.

(6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.

Misleading indication of activities

76.—(1) If in the opinion of the Secretary of State the name by which an LLP is registered gives so misleading an indication of the nature of its activities as to be likely to cause harm to the public, the Secretary of State may direct the LLP to change its name.

(2) The direction must be in writing.

(3) The direction must be complied with within a period of six weeks from the date of the direction or such longer period as the Secretary of State may think fit to allow.

This does not apply if an application is duly made to the court under the following provisions.

(4) The LLP may apply to the court to set the direction aside.

The application must be made within the period of three weeks from the date of the direction.

(5) The court may set the direction aside or confirm it.

If the direction is confirmed, the court shall specify the period within which the direction is to be complied with.

(6) If an LLP fails to comply with a direction under this section, an offence is committed by—

(a)the LLP, and

(b)every designated member of the LLP who is in default.

(7) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.”.

CHAPTER 4

TRADING DISCLOSURES

Requirement to disclose LLP name etc

14.  Sections 82 and 83 apply to LLPs, modified so that they read as follows—

“Requirement to disclose LLP name etc

82.—(1) The Companies (Trading Disclosures) Regulations 2008 (S.I. 2008/495(2)apply to LLPs.

(2) As they apply to LLPs—

(a)read references to a company as references to an LLP;

(b)read references to a director as references to a member of an LLP;

(c)read references to an officer of a company as references to a designated member of an LLP;

(d)in regulation 7 (further particulars to appear in business letters, order forms and websites), for paragraphs (2)(d) to (f) and (3) substitute—

“(d)in the case of an LLP whose name ends with the abbreviation “llp”, “LLP”, “pac” or “PAC”, the fact that it is an LLP or a partneriaeth atebolrwydd cyfyngedig”.”;

(e)in regulation 8 (disclosure of names of members)—

(i)at the beginning of paragraph (1) insert “Subject to paragraph (3),” and

(ii)after paragraph (2) insert—

“(3) Paragraph (1) does not apply in relation to any document issued by an LLP with more than 20 members which maintains at its principal place of business a list of the names of all the members if the document states in legible characters the address of the principal place of business of the LLP and that the list of the members’ names is open to inspection at that place.

(4) Where an LLP maintains a list of the members’ names for the purposes of paragraph (3), any person may inspect the list during office hours.”;

(f)omit regulation 10(3) (offences: shadow directors).

Civil consequences of failure to make required disclosure

83.—(1) This section applies to any legal proceedings brought by an LLP to which section 82 applies (requirement to disclose LLP name etc) to enforce a right arising out of a contract made in the course of a business in respect of which the LLP was, at the time the contract was made, in breach of the Companies (Trading Disclosures) Regulations 2008 (S.I. 2008/495).

(2) The proceedings shall be dismissed if the defendant (in Scotland, the defender) to the proceedings shows—

(a)that he has a claim against the claimant (pursuer) arising out of the contract that he has been unable to pursue by reason of the latter’s breach of the regulations, or

(b)that he has suffered some financial loss in connection with the contract by reason of the claimant’s (pursuer’s) breach of the regulations,

unless the court before which the proceedings are brought is satisfied that it is just and equitable to permit the proceedings to continue.

(3) This section does not affect the right of any person to enforce such rights as he may have against another person in any proceedings brought by that person.”.

15.  Section 85 applies to LLPs, modified so that it reads as follows—

“Minor variations in form of name to be left out of account

85.—(1) For the purposes of this Chapter, in considering an LLP’s name no account is to be taken of—

(a)whether upper or lower case characters (or a combination of the two) are used,

(b)whether diacritical marks or punctuation are present or absent,

provided there is no real likelihood of names differing only in those respects being taken to be different names.

(2) This does not affect the operation of provisions of the Company and Business Names (Miscellaneous Provisions) Regulations 2009 (S.I. 2009/1085) permitting only specified characters or punctuation.”.

PART 4

AN LLP’S REGISTERED OFFICE

General

16.  Sections 86 and 87 apply to LLPs, modified so that they read as follows—

“An LLP’s registered office

86.—(1) An LLP must at all times have a registered office situated in England and Wales (or in Wales), in Scotland or in Northern Ireland, to which all communications and notices may be addressed.

(2) On the incorporation of an LLP the situation of its registered office shall be that stated in the incorporation document.

Change of address of registered office

87.—(1) An LLP may change the address of its registered office by giving notice to the registrar.

(2) The change takes effect upon the notice being registered by the registrar, but until the end of the period of 14 days beginning with the date on which it is registered a person may validly serve any document on the LLP at the address previously registered.

(3) For the purposes of any duty of an LLP—

(a)to keep available for inspection at its registered office any register, index or other document, or

(b)to mention the address of its registered office in any document,

an LLP that has given notice to the registrar of a change in the address of its registered office may act on the change as from such date, not more than 14 days after the notice is given, as it may determine.

(4) Where an LLP unavoidably ceases to perform at its registered office any such duty as is mentioned in subsection (3)(a) in circumstances in which it was not practicable to give prior notice to the registrar of a change in the address of its registered office, but—

(a)resumes performance of that duty at other premises as soon as practicable, and

(b)gives notice accordingly to the registrar of a change in the situation of its registered office within 14 days of doing so,

it is not to be treated as having failed to comply with that duty.”.

Welsh LLPs

17.  Section 88 applies to LLPs, modified so that it reads as follows—

“Welsh LLPs8

8.—(1) In this Act a “Welsh LLP” means an LLP as to which it is stated in the register that its registered office is to be situated in Wales.

(2) An LLP—

(a)whose registered office is in Wales, and

(b)as to which it is stated in the register that its registered office is to be situated in England and Wales,

may determine that the register be amended so that it states that the LLP’s registered office is to be situated in Wales.

(3) An LLP—

(a)whose registered office is in Wales, and

(b)as to which it is stated in the register that its registered office is to be situated in Wales,

may determine that the register be amended so that it states that the LLP’s registered office is to be situated in England and Wales.

(4) Where an LLP makes a determination under this section it must give notice to the registrar, who shall—

(a)amend the register accordingly, and

(b)issue a new certificate of incorporation altered to meet the circumstances of the case.”.

PART 5

AN LLP’S MEMBERS

CHAPTER 1

REGISTER OF MEMBERS

Requirements for register of members

18.  Sections 162 to 165 apply to LLPs, modified so that they read as follows—

“Register of members

162.—(1) Every LLP must keep a register of its members.

(2) The register must contain the required particulars (see sections 163 and 164) of each person who is a member of the LLP.

(3) The register must be kept available for inspection—

(a)at the LLP’s registered office, or

(b)at a place specified in Part 2 of the Companies (Company Records) Regulations 2008 (S.I. 2008/3006).

(4) The LLP must give notice to the registrar—

(a)of the place at which the register is kept available for inspection, and

(b)of any change in that place,

unless it has at all times been kept at the LLP’s registered office.

(5) The register must be open to the inspection—

(a)of any member of the LLP without charge, and

(b)of any other person on payment of the fee prescribed by regulation 2(a) of the Companies (Fees for Inspection of Company Records) Regulations 2008 (S.I. 2008/3007).

(6) If default is made in complying with subsection (1), (2) or (3) or if default is made for 14 days in complying with subsection (4), or if an inspection required under subsection (5) is refused, an offence is committed by—

(a)the LLP, and

(b)every designated member of the LLP who is in default.

(7) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 5 on the standard scale.

(8) In the case of a refusal of inspection of the register, the court may by order compel an immediate inspection of it.

Particulars of members to be registered: individuals

163.—(1) An LLP’s register of members must contain the following particulars in the case of an individual—

(a)name and any former name;

(b)a service address;

(c)the country or state (or part of the United Kingdom) in which he is usually resident;

(d)date of birth;

(e)whether he is a designated member.

(2) For the purposes of this section “name” means a person’s Christian name (or other forename) and surname, except that in the case of—

(a)a peer, or

(b)an individual usually known by a title,

the title may be stated instead of his Christian name (or other forename) and surname or in addition to either or both of them.

(3) For the purposes of this section a “former name” means a name by which the individual was formerly known for business purposes.

Where a person is or was formerly known by more than one such name, each of them must be stated.

(4) It is not necessary for the register to contain particulars of a former name in the following cases—

(a)in the case of a peer or an individual normally known by a British title, where the name is one by which the person was known previous to the adoption of or succession to the title;

(b)in the case of any person, where the former name—

(i)was changed or disused before the person attained the age of 16 years, or

(ii)has been changed or disused for 20 years or more.

(5) A person’s service address may be stated to be “The LLP’s registered office”.

Particulars of members to be registered: corporate members and firms

164.  An LLP’s register of members must contain the following particulars in the case of a body corporate, or a firm that is a legal person under the law by which it is governed—

(a)corporate or firm name;

(b)registered or principal office;

(c)in the case of an EEA company to which the First Company Law Directive (68/151/EEC) applies, particulars of—

(i)the register in which the company file mentioned in Article 3 of that Directive is kept (including details of the relevant state), and

(ii)the registration number in that register;

(d)in any other case, particulars of—

(i)the legal form of the company or firm and the law by which it is governed, and

(ii)if applicable, the register in which it is entered (including details of the state) and its registration number in that register;

(e)whether it is a designated member.

Register of members’ residential addresses

165.—(1) Every LLP must keep a register of members’ residential addresses.

(2) The register must state the usual residential address of each of the LLP’s members.

(3) If a member’s usual residential address is the same as his service address (as stated in the LLP’s register of members), the register of members’ residential addresses need only contain an entry to that effect.

This does not apply if his service address is stated to be “The LLP’s registered office”.

(4) If default is made in complying with this section, an offence is committed by—

(a)the LLP, and

(b)every designated member of the LLP who is in default.

(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 5 on the standard scale.

(6) This section applies only to members who are individuals, not where the member is a body corporate or a firm that is a legal person under the law by which it is governed.”.

CHAPTER 2

MEMBERS’ RESIDENTIAL ADDRESSES: PROTECTION FROM DISCLOSURE

Members’ residential addresses: protection from disclosure

19.  Sections 240 to 246 apply to LLPs, modified so that they read as follows—

“Protected information

240.—(1) This Chapter makes provision for protecting, in the case of an LLP member who is an individual—

(a)information as to his usual residential address;

(b)the information that his service address is his usual residential address.

(2) That information is referred to in this Chapter as “protected information”.

(3) Information does not cease to be protected information on the individual ceasing to be a member of the LLP.

References in this Chapter to a member include, to that extent, a former member.

Protected information: restriction on use or disclosure by LLP

241.—(1) An LLP must not use or disclose protected information about any of its members, except—

(a)for communicating with the member concerned,

(b)in order to comply with any requirement of this Act or of the Limited Liability Partnerships Act 2000 (c. 12) as to particulars to be sent to the registrar, or

(c)in accordance with section 244 (disclosure under court order).

(2) Subsection (1) does not prohibit any use or disclosure of protected information with the consent of the member concerned.

Protected information: restriction on use or disclosure by registrar

242.—(1) The registrar must omit protected information from the material on the register that is available for inspection where—

(a)it is contained in a document delivered to him in which such information is required to be stated, and

(b)in the case of a document having more than one part, it is contained in a part of the document in which such information is required to be stated.

(2) The registrar is not obliged—

(a)to check other documents or (as the case may be) other parts of the document to ensure the absence of protected information, or

(b)to omit from the material that is available for public inspection anything registered before 1st October 2009.

(3) The registrar must not use or disclose protected information except—

(a)as permitted by section 243 (permitted use or disclosure by registrar), or

(b)in accordance with section 244 (disclosure under court order).

Permitted use or disclosure by the registrar

243.—(1) The registrar may use protected information for communicating with the member in question.

(2) The registrar may disclose protected information—

(a)to a public authority specified for the purposes of this section, or

(b)to a credit reference agency.

(3) The provisions of the Companies (Disclosure of Address) Regulations 2009 (S.I. 2009/214) relating to disclosure of protected information under this section apply to LLPs.

(4) The provisions are—

(a)Part 2 (disclosure of protected information),

(b)Part 4 (matters relating to applications), so far as relating to disclosure under this section, and

(c)any other provisions of the Regulations having effect for the purposes of those provisions.

(5) As those provisions apply to LLPs—

(a)references to provisions of the Companies Act 1985 (c. 6), the Insolvency Act 1986 (c. 45), the Companies (Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I.6)) or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.9)) are to those provisions as applied to LLPs by the Limited Liability Partnerships Regulations 2001 (S.I. 2001/1090) or the Limited Liability Partnerships Regulations (Northern Ireland) 2004 (S.R. (NI) 2004 No 307);

(b)read references to a company or proposed company as references to an LLP or proposed LLP;

(c)read references to a director as references to a member of an LLP;

(d)read references to a subscriber to a memorandum of association as references to a proposed member of a proposed LLP;

(e)in regulation 1(2), for the definition of “former name” substitute—

““former name” means a name by which an individual was formerly known and which has been notified to the registrar under section 2 or 9 of the Limited Liability Partnerships Act 2000;”.

(6) In this section—

“credit reference agency” means a person carrying on a business comprising the furnishing of information relevant to the financial standing of individuals, being information collected by the agency for that purpose; and

“public authority” includes any person or body having functions of a public nature.

Disclosure under court order

244.—(1) The court may make an order for the disclosure of protected information by the LLP or by the registrar if—

(a)there is evidence that service of documents at a service address other than the member’s usual residential address is not effective to bring them to the notice of the member, or

(b)it is necessary or expedient for the information to be provided in connection with the enforcement of an order or decree of the court,

and the court is otherwise satisfied that it is appropriate to make the order.

(2) An order for disclosure by the registrar is to be made only if the LLP—

(a)does not have the member’s usual residential address, or

(b)has been dissolved.

(3) The order may be made on the application of a liquidator, creditor or member of the LLP, or any other person appearing to the court to have a sufficient interest.

(4) The order must specify the persons to whom, and purposes for which, disclosure is authorised.

Circumstances in which registrar may put address on the public record

245.—(1) The registrar may put a member’s usual residential address on the public record if—

(a)communications sent by the registrar to the member and requiring a response within a specified period remain unanswered, or

(b)there is evidence that service of documents at a service address provided in place of the member’s usual residential address is not effective to bring them to the notice of the member.

(2) The registrar must give notice of the proposal—

(a)to the member, and

(b)to every LLP of which the registrar has been notified that the individual is a member.

(3) The notice must—

(a)state the grounds on which it is proposed to put the member’s usual residential address on the public record, and

(b)specify a period within which representations may be made before that is done.

(4) It must be sent to the member at his usual residential address, unless it appears to the registrar that service at that address may be ineffective to bring it to the individual’s notice, in which case it may be sent to any service address provided in place of that address.

(5) The registrar must take account of any representations received within the specified period.

(6) What is meant by putting the address on the public record is explained in section 246.

Putting the address on the public record

246.—(1) The registrar, on deciding in accordance with section 245 that a member’s usual residential address is to be put on the public record, shall proceed as if notice of a change of registered particulars had been given—

(a)stating that address as the member’s service address, and

(b)stating that the member’s usual residential address is the same as his service address.

(2) The registrar must give notice of having done so—

(a)to the member, and

(b)to the LLP.

(3) On receipt of the notice the LLP must—

(a)enter the member’s usual residential address in its register of members as his service address, and

(b)state in its register of members’ residential addresses that his usual residential address is the same as his service address.

(4) If the LLP has been notified by the member in question of a more recent address as his usual residential address, it must—

(a)enter that address in its register of members as the member’s service address, and

(b)give notice to the registrar as on a change of registered particulars.

(5) If an LLP fails to comply with subsection (3) or (4), an offence is committed by—

(a)the LLP, and

(b)every designated member of the LLP who is in default.

(6) A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 5 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 5 on the standard scale.

(7) A member whose usual residential address has been put on the public record by the registrar under this section may not register a service address other than his usual residential address for a period of five years from the date of the registrar’s decision.”.

 
See more for The Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009
 
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