Limited Liability Partnerships Regulations (Northern Ireland) 2004

Prospective

Explanatory Note

(This note is not part of the Regulations)

The Limited Liability Partnerships Act (Northern Ireland) 2002 provided for the creation of Limited Liability Partnerships (LLPs) and for the making of regulations concerning them. These Regulations regulate LLPs by applying to them, with appropriate modifications, the appropriate provisions of the existing law which relate to companies and partnerships.

The Regulations are structured in seven Parts accompanied by five Schedules. They apply to LLPs, with appropriate modifications to reflect the structure of LLPs, a large number of the provisions contained within the Companies (Northern Ireland) Order 1986, the Insolvency (Northern Ireland) Order 1989 and the Company Directors Disqualification (Northern Ireland) Order 2002.

The Regulations amend the relevant primary legislation by way of general modifications which provide that references to a company include 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 there are references to designated members. This category of member is responsible for a number of administrative 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 and interpretation provisions to be applied to the Regulations, and gives the date on which they come into operation.

Part II of, and Schedule 1 to, the Regulations apply the provisions of Part VIII of the Companies (Northern Ireland) Order 1986 (accounts and audit) and its attendant Schedules to LLPs with appropriate modifications. Schedule 1 lists only those Articles contained in Part VIII of the Companies (Northern Ireland) Order 1986, (including the Schedules relating to those Articles), which have been modified in their application to LLPs or not applied to LLPs. Therefore, if Schedule 1 does not refer to a particular Article, which is contained in Part VIII of the Companies (Northern Ireland) Order 1986, or paragraph of a relevant Schedule, then that Article or paragraph will apply to LLPs, subject only to the general modifications set out in regulation 3. The accounts and audit provisions, as applied by Part II of, and Schedule 1 to, the Regulations, impose accounting requirements on LLPs which are similar to those for companies. They require that LLPs file annual accounts with the registrar of companies, and place audit requirements on LLPs similar to those imposed on companies. They also define the form and content of the accounts, and allow derogations for small and medium sized LLPs.

Part III of, and Schedule 2 to, the Regulations apply to LLPs the remainder of the provisions of the Companies (Northern Ireland) Order 1986 with appropriate modifications. Schedule 2 lists all those Articles which apply to LLPs. If Schedule 2 does not refer to a particular Article of the Companies (Northern Ireland) Order 1986 then that Article will not apply to LLPs. Part III of, and Schedule 2 to, the Regulations regulate an LLP by applying provisions, many of which are the same as or similar to those imposed on companies, but which reflect the different nature and structure of LLPs. They include provision for:

• the execution of documents including bills of exchange and promissory notes and the execution of deeds abroad;

• the registration of debenture holders including a right for the holders of debentures issued by an LLP to inspect the register, the liability of trustees of debentures and perpetual debentures;

• the officers and registered office including a requirement to register changes in the registered office of an LLP with the registrar of companies;

• company identification – the name of an LLP is to appear outside its place of business and on correspondence, in addition an LLP may have a common seal;

• annual return – this part of the Regulations provides that it is the duty of an LLP to deliver an annual return to the registrar of companies and sets out requirements as to the content of the annual return;

• auditors – an LLP is, in general, required to appoint auditors; provision is made for the appointment of auditors by the Department of Enterprise, Trade and Investment where an LLP is in default; the auditors have various rights including the right to have access to an LLP’s books, accounts and information as necessary, the right to attend meetings of the LLP, and certain rights in the event of being removed or not being re-appointed; provision is also made for the resignation of auditors and the making of a statement by a person ceasing to hold office as auditor;

• registration of charges – Articles 402 to 416 of the Companies (Northern Ireland) Order 1986 will apply to LLPs, with modifications, until Article 28 of the Companies (No. 2) (Northern Ireland) Order 1990 is commenced or some other amendment is made;

• arrangements and reconstructions – an LLP will have the power to compromise with its creditors and members; the Articles set out detailed provisions concerning the circulation of information on any compromise together with provisions for facilitating an LLP’s reconstruction or amalgamation;

• investigation of LLPs and their affairs – an investigation of an LLP may be made following its own application or that of its members; the Articles set out detailed provisions concerning investigations, the production of documents and evidence, contempt of court, inspectors' reports and the use of inspectors' reports as evidence;

• fraudulent trading is punished in the case of an LLP in the same way as a company;

• unfair prejudice – Schedule 2 applies the Companies (Northern Ireland) Order 1986 so that, in general, there is a remedy for the members of an LLP should they suffer unfair prejudice; the members of a limited liability partnership may, however, by unanimous agreement exclude the right contained in Article 452(1) for such period as may be agreed;

• matters arising subsequent to winding up – the provisions deal with various matters including the power of the court to declare the dissolution of a company void, the striking out by the registrar of companies of a defunct company and crown disclaimer of property vesting as bona vacantia;

• registrar of companies – Schedule 2 sets out the registrar’s functions and offices in relation to LLPs;

• miscellaneous and supplementary provisions – the provisions deal with various matters including the form of company registers etc., the use of computers for company records, the service of documents, the powers of a court to grant relief in certain cases, and the punishment of offences.

Part III of the Regulations also applies the provisions of the Company Directors Disqualification (Northern Ireland) Order 2002 to LLPs with appropriate modifications. These provide that members of an LLP will be subject to the same penalties that currently apply to company directors under that Order and may be disqualified from being a member of an LLP or a director of a company under those provisions.

Part IV of, and Schedule 3 to, the Regulations apply to LLPs the provisions of Parts I to V, Part VII and Parts XI to XIV of the Insolvency (Northern Ireland) Order 1989, with appropriate modifications. Schedule 3 lists only those Articles contained in Parts I to V, Part VII and Parts XI to XIV which have been modified or omitted in their application to LLPs. If there is no reference in Schedule 3 to a particular Article contained in Parts I to V, Part VII and Parts XI to XIV of the Insolvency (Northern Ireland) Order 1989 then that Article will apply to LLPs subject to the general modifications contained in regulation 5. The insolvency provisions as applied to LLPs include provisions for voluntary arrangements, administration orders, receivership, winding-up and liquidations. The most notable modifications of the provisions which apply to companies are an additional Article, Article 178A and the re-worded Article 61.

The new Article 178A 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 members knew or had reasonable grounds for believing that the LLP was, or would be made, insolvent. The modified Article 61 provides that in the event that an LLP is wound up, both past and present members of the LLP are liable to contribute to the assets of the LLP to the extent that they have agreed to do so with the other members, in the limited liability partnership agreement.

Part V of the Regulations applies provisions contained in Parts XV and XXIV of the Financial Services and Markets Act 2000 to LLPs. These Parts provide for insolvency arrangements of LLPs which are authorised under the Financial Services and Markets Act 2000. In addition, these Parts give the Financial Services Authority powers to ask the courts to wind up, or initiate other insolvency procedures against, authorised and certain other persons. It also enables the Authority to be heard by the court when such proceedings are commenced by third parties.

Part VI of the Regulations provides for default provisions governing the rights and duties of members, which modify those contained in section 24 of the Partnership Act 1890. They will apply when there is no existing limited liability partnership agreement, or where the agreement does not wholly deal with a particular issue.

Part VII of, and Schedule 4 to, the Regulations contain general and consequential amendments.

Part VII of, and Schedule 5 to, the Regulations apply to LLPs certain pieces of subordinate legislation made under the Companies (Northern Ireland) Order 1986, the Insolvency (Northern Ireland) Order 1989 and other primary legislation.