The Insolvent Partnerships Order 1994

Article 9

SCHEDULE 5 PROVISIONS OF THE ACT WHICH APPLY WITH MODIFICATIONSFOR THE PURPOSES OF ARTICLE 9 TO WINDING UP OF INSOLVENT PARTNERSHIP ON MEMBER'S PETITION WHERE NOCONCURRENT PETITION PRESENTED AGAINST MEMBER

Section 117: High Court and county court jurisdiction

1.  Section 117 is modified so as to read as follows—

“117.— (1) Subject to subsections (3) and (4) below, the High Court has jurisdiction to wind up any insolvent partnership as an unregistered company by virtue of article 9 of th Insolvent Partnerships Order 1994 if the partnership has, or at any time had, a principal place of business in England and Wales.

(2) Subject to subsections (3) and (4) below, a petition for the winding up of an insolvent partnership by virtue of the said article 9 may be presented to a county court in England and Wales if the partnership has, or at any time had, a principal place of business within the insolvency district of that court.

(3) Subject to subsection (4) below, the court only has jurisdiction to wind up an insolvent partnership if the business of the partnership has been carried on in England and Wales at any time in the period of 3 years ending with the day on which the petition for winding it up is presented.

(4) If an insolvent partnership has a principal place of business situated in Scotland or in Northern Ireland, the court shall not have jurisdiction to wind up the partnership unless it had a principal place of business in England and Wales—

(a) in the case of a partnership with a principal place of business in Scotland, at any time in the period of 1 year, or

(b) in the case of a partnership with a principal place of business in Northern Ireland at any time in the period of 3 years,

ending with the day on which the petition for winding it up is presented.

(5) The Lord Chancellor may by order in a statutory instrument exclude a county court from having winding-up jurisdiction, and for the purposes of that jurisdiction may attach its district, or any part thereof, to any other county court, and may by statutory instrument revoke or vary any such order.

• In exercising the powers of this section, the Lord Chancellor shall provide that a county court is not to have winding-up jurisdiction unless it has for the time being jurisdiction for the purposes of Parts VIII to XI of this Act (individual insolvency).

(6) Every court in England and Wales having winding-up jurisdiction has for the purposes of that jurisdiction all the powers of the High Court; and every prescribed officer of the court shall perform any duties which an officer of the High Court may discharge by order of a judge of that court or otherwise in relation to winding up.”.

Section 221: Winding up of unregistered companies

2.  Section 221 is modified so as to read as follows—

“221.— (1) Subject to subsections (2) and (3) below and to the provisions of this Part, any insolvent partnership which has, or at any time had, a principal place of busines in England and Wales may be wound up under this Act.

(2) Subject to subsection (3) below an insolvent partnership shall not be wound up under this Act if the business of the partnership has not been carried on in England and Wales at any time in the period of 3 years ending with the day on which the winding-up petition is presented.

(3) If an insolvent partnership has a principal place of business situated in Scotland or in Northern Ireland, the court shall not have jurisdiction to wind up the partnership unless it had a principal place of business in England and Wales—

(a) in the case of a partnership with a principal place of business in Scotland, at any time in the period of 1 year, or

(b) in the case of a partnership with a principal place of business in Northern Ireland at any time in the period of 3 years,

ending with the day on which the winding-up petition is presented.

(4) No insolvent partnership shall be wound up under this Act voluntarily.

(5) To the extent that they are applicable to the winding up of a company by the court in England and Wales on a member’s petition or on a petition by the company, all the provisions of this Act and the Companies Act about winding up apply to the winding up of an insolvent partnership as an unregistered company—

(a) with the exceptions and additions mentioned in the following subsections of this section and in section 221A, and

(b) with the modifications specified in Part II of Schedule 3 to the Insolvent Partnerships Order 1994.

(6) Sections 73(1), 74(2)(a) to (d) and (3), 75 to 78, 83, 122, 123, 124(2) and (3), 202, 203, 205 and 250 shall not apply.

(7) The circumstances in which an insolvent partnership may be wound up as an unregistered company are as follows—

(a) if the partnership is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs;

(b) if the partnership is unable to pay its debts;

(c) if the court is of the opinion that it is just and equitable that the partnership should be wound up.

(8) Every petition for the winding up of an insolvent partnership under Part V of this Act shall be verified by affidavit in Form 2 in Schedule 9 to the Insolvent Partnerships Order 1994.

Who may present petition

221A.— (1) A petition for winding up an insolvent partnership may be presented by any member of the partnership if the partnership consists of not less than 8 members.

(2) A petition for winding up an insolvent partnership may also be presented by any member of it with the leave of the court (obtained on his application) if the court is satisfied that—

(a) the member has served on the partnership, by leaving at a principal place of bu iness of the partnership in England and Wales, or by delivering to an officer of the par nership, or by otherwise serving in such manner as the court may approve or direct, a wr tten demand in Form 10 in Sched le 9 to the Insolvent Partnerships Order 1994 in respect of a joint debt or debts exceed ng £750 then due from the partnership but paid by the member, other than out of partners ip property;

(b) the partnership has for 3 weeks after the service of the demand neglected to pay the sum or to secure or compound for it to the member’s satisfaction; and

(c) the member has obtained a judgment, decree or order of any court against the partnership for reimbursement to him of the amount of the joint debt or debts so paid and all reasonable steps (other than insolvency proceedings) have been taken by the member to enforce that judgment, decree or order.

(3) Subsection (2)(a) above is deemed included in the list of provisions specified in subsection (1) of section 416 of this Act for the purposes of the Secretary of State’s order-making power under that section.”.