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Book reviews

1 April 01

Reviews of Partnership Law; Human Rights and UK Practice; Summary Applications and Suspensions

by David A Bennett, J L Murdoch, Douglas Cusine

It may seem strange for a Scots lawyer to welcome a publication on Irish Partnership Law as a valuable contribution to Scots and English lawyers’ understanding of this important field. There are however several reasons for doing so. The leading British texts (Lindley & Banks in England and Bennett Miller in Scotland) are, one might politely suggest, in need of refreshment, and the three jurisdictions (in this context “Irish law” essentially means the law of the Republic of Ireland) together with Northern Ireland share the common heritage of the Partnership Act 1890 and the preceding and succeeding case law and common law which have not drifted significantly apart since the watershed date of 1922. It is also timely, given the major consultation document on Partnership Law issued by the Law Commissions in September 2000, and the imminent availability of Limited Liability Partnerships under the British Limited Liability Partnership Act 2000.

Michael Twomey presents a clear exposition and critical analysis of Partnership Law in terms which are equally relevant to Scots law and English law. Case law and examples are cited from Scotland, England, Australia and other jurisdictions sharing the common heritage of the 1890 Act, as well as from both parts of Ireland itself. The Irish perspective on our common jurisdictional problems is valuable, and sometimes reveals what is too often concealed by over-familiarity on this side of the Irish sea. For example, the social context of what is meant by a “business” (as in “carrying on a business in common” - Partnership Act 1890 Section 1(1)) acquires a different meaning when considered in the context of the typical Irish family firm.

The author has no hesitation in criticising the confusing use of the term “dissolution” in the 1890 Act as well as the difficulty that Irish law shares with us in arriving at a sensible meaning for a partnership “entered into for a fixed term” (1890 Act Section 32(a)). Given that all relevant jurisdictions have determined that a partnership whose duration is indefinite but which cannot be determined except on notice is for “a fixed term” however improbable the stretching of the language, the author is surely right to designate such partnerships as “formal” partnerships rather than “fixed term” partnerships. Whether his choice of term is the right one or not, it is surely necessary for a statute to adopt language which does not confuse the reader!

Twomey also discusses the concept of the “quasi-partnership company” under which Partnership Law has usefully informed Company Law when dealing with small private companies. He sensibly suggests that it is perhaps time for Company Law to exercise a beneficent influence on Partnership Law (8.104).

In discussing what is meant by the right of a partner to be indemnified by the firm in respect of liabilities incurred “in the ordinary and proper conduct of the business of the firm” (1890 Act Section 24(2)(a)) the author is clearly at odds with the Outer House decision in Ross Harper & Murphy v Banks 2000 SLT 699 suggesting (para’s. 10.26 and 10.37) that a partner who acts in good faith but negligently in carrying out the business of the firm is entitled to the benefit of that indemnity. This of course is still a live issue in Scotland at least pending the outcome of the expected appeal in RHM v Bank; your reviewer suggests that Twomey is right and the decisions at first instance in that case wrong.

The author also embarks usefully and pertinently on territory which is not normally covered by a treatise on partnership law, namely the impact of anti-competitive provisions of European and domestic law (chapter 22). Of special interest also given the impending advent of a practical form of limited liability partnership in Scotland and England, is the discussion of the Investment Limited Partnerships Act of 1994 (applicable in the Irish Republic only) which allows a form of limited liability partnership for property investment purposes (both heritable and moveable property). These are in essence regulated collective investment schemes which share some similarity with limited partnerships under our Limited Partnerships Act 1907, but which are explicitly outwith the scheme of that Act. In the context of the Law Commissions’ consultation referred to above the reasons for introducing such an entity into Irish law and its structure would repay closer investigation to which the present author provides an admirable introduction.

The reviewer has already welcomed this publication, and whether the reader’s interest in partnership law is academic or more practical, Michael Twomey has provided an excellent freshly written critical exposition and analysis, with a copious body of case law to support his comments, which should find its way into every well-equipped law library in Scotland and, for that matter, England and Wales let alone his native island.

David A Bennett

Specialised newsletters designed to service the needs of busy practitioners have taken off in recent years as publishers seek to capitalise on the advantages such a format offers. Human Rights and UK Practice is one of some nineteen titles appearing in the CLT Professional Publishing stable alone, and the need for this particular title is arguably one of the most compelling in light of the all-pervading influence that incorporation of the ECHR will have on a range of aspects of domestic law and practice. Most newsletters presuppose a readership with a working knowledge of the particular area of legal practice and can thus concentrate upon fulfilling the need of their audiences to be kept abreast of current developments; but this is a subject in which (understandably) practitioners have had little prior exposure. The editorial board has faced a demanding challenge of combining this traditional newsletter function of updating and informing with that of providing a basic understanding of Strasbourg jurisprudence while also attempting to note the influence of the ECHR in domestic law either directly through domestic application of Strasbourg case-law by virtue of the Scotland Act and the Human Rights Act or indirectly via recent or pending applications involving the UK in Strasbourg.

In twenty pages per issue, there is an obvious limit to what can be achieved. One may quibble whether a study of the lack of fair trial guarantees in Pilate’s handling of the trial of Christ or discussion of the Council of Europe’s statement on ethical behaviour of lawyers was space worth spending. The first issues, however, contained useful introductions to the impact of the Human Rights Act, to researching Commission and Court jurisprudence, and to certain substantive guarantees, while ‘update’ articles focussed on recent Court decisions and (more narrowly) on British cases in Strasbourg and applications of Strasbourg case-law by the domestic courts. (Here, the experience of our own courts in dealing with challenges under the Scotland Act feature prominently. Indeed, the publication as a whole has a distinct Scottish flavour: while intended for a UK audience, it is largely edited and written by Scottish lawyers.) The emphasis on ‘overview’ rather than ‘update’ is perhaps understandable at this stage of the Convention’s incorporation, but can Article 6 – the fair trial guarantee - be summarised meaningfully in just under two pages? In time, the emphasis will doubtless change, and keeping abreast of Convention developments will itself provide ample material for the newsletter: last year the Court delivered just under 700 judgments and struck out or declared inadmissible over 6,700 applications, and its own monthly newsletter –available free over the web – regularly exceeds 30 pages an issue. There is a clear need to provide regular updates on recent developments of relevance to lawyers and other advice-givers in readily-digestible articles. This publication should prove to be a useful aid in keeping abreast of jurisprudence and understanding the most recent key decisions of the Strasbourg Court and domestic tribunals.

J L Murdoch

This is a welcome addition to the library of anyone involved in civil court work, but there is a chapter on summary applications in relation to criminal matters, such as firearms, sex offenders, drug trafficking and forfeiture. The bulk of summary applications and suspensions, however, relate to civil matters.

These cover a wide field including mental health, education, diligence betting and gaming. Others which are less-commonly encountered such as exhumations are also covered. Most applications are made under statutory provisions and these are each carefully dealt with and suitably indexed.

While the book deals with the substantive law, there are styles and mention of the various rules which apply. Appeals and expenses are also dealt with. One of the appendices contains a chronological table of statutes (might an alphabetical one have been of more assistance?) and another a list of the rules. There is an extensive and comprehensive index all of which will assist in the (re)search.

Douglas Cusine