Parties II Flashcards
How can Companies be sued?
A company is a separate legal person
Companies sue and are sued in their registered name
Sometimes companies are in groups or are in similar names. You have to make sure you are sueing the right company in the group. Each member of the group is separate.
Companies carrying on business under a trading or descriptive name sue may be sued under their trading or descriptive name - OCR 5.7
What is the Company has changed it’s name?
Changes of name Companies Act 1985 S 28 (7) – now Companies Act 2006 Act section 81
Companies house has the information. Every company must have a registered name and office with Companies House.
If there is a change of name then narrate in the instance “formerly known as”
Changes of name. If sue in the old name you can amend if you have got it wrong but check first to ensure you are sueing the company in the right name. Identify the company by name and registered number if not sure.
What is Rule 5.7?
Rule 5.7 requires the registered name to sue the company. Must know what the current name of the company is. But says if companies are carrying on business under descriptive name then they can be sued under this - sue under the proper name of the company and say “it is trading as X”. This is important where trading name is different from that of the company name.
When do liabilities transfer to a transferee company?
Britton v Maple & Co Ltd 1986 SLT 70
Where the whole assets of the company transferred of whole business to new company then there is a general assumption that liabilities transfer to transferee company
How do you check the assets of the Company?
Also, even when acting for company, must know how much in the way of assets we have. Must check Sufficiency of assets to see whether there is a point in sueing. Check this by checking latest set of accounts in Companies House.
What happens if you are sueing a Company which has insurance?
An insurer is a subrogated party
In some situations you are seeing a company but the company has insurance.
Insurance, particularly:
Employer’s liability insurance
Motor insurance
European Communities (Rights against Insurers) Regulations 2002 — it is possible here to sue the insurer directly instead of the legal person that caused you harm.
The litigation is then conducted by insurer in exercise of its subrogated rights. This is common in cases of accidents at work. You sue the employer and insurer should stand behind the company and defend the action. The correct defender is not insurance company but employer. In road traffic accident cases because insurance is compulsory then the litiagtion is brough against driver but conduct of action is in the hands of the insurer.
What happens when a Company goes into receivership?
Companies in receivership (insolvent companies). A company goes into receivership when a floating charge is called up which crystallises over the companies assets. A receiver is then appointed the purpose then is for receiver to deal with he assets of the company to allow the floating charge holder (lender) to recover what is due to it. In that situation the receiver may take proceedings for the purpose of taking possession or collecting the property of the company and may bring or defend any action in the name of and on behalf of the company: this is in terms of the Insolvency Act 1986 Section 55 and schedule 2 paragraphs 1 and 5.
What happens when a Company has gone into Liquidation?
The procedure whereby a creditor applies to the court to place the company into liquidation, normally under control of the court and usually but not invariably as a result of insolvency.
If a company goes into liquidation then the liquidator may, with the sanction of the Court or the liquidation committee bring or defend
an action in the name and on behalf of the
company Insolvency Act 1986 Section 167
You must get permission of the court in order to bring or defend actions against the company when the company is in liquidation.
In terms of s130 of IA 1986 when winding up order has been made or a provisional liquidation order has been appointed no action shall be proceeded with or commenced against the company or its property except by name of the court and subject to such terms as the court may impose. This means that if a company has gone into liquidaiton, you must obtain permission of the court to bring an action or if the company and wants to resist an action and wants to bring an action itself then permission must be sought.
So to sue a company in liquidation you must get the permission of the court before hand. You do this by lodging a note in the liquidation proceedings which is an application to the court in form of a separate piece of pleading.
May sist on application of company or creditor or contributor 1986 Act Section 126 (1), s.130.
A problem which can arise where a company has been struck off or dissolved (occurs most often in personal injuries field) need to restore company to register if it has been wound up CA 2006, s 1024 if you want to sue it.
A company may be struck off if no annual return or other documents such as accounts have been lodged on behalf of the company. Must find out what the current status of the company is and if its been struck off or in liquidation and liquidation has been complete and company has been dissolved. Must restore companies to the register - the procedure for this is in CA 2006, s 1024.
This can be important and has arisen often in situations where people have claims for occupational diseases, particularly in shipping cases (e.g. John Browns in Liquidations and dissolved and 20 years later asbestos claims came so- necessary to keep liquidation alive so pursuers could obtain authority to raise proceedings.
How do you sue a partnership?
To sue a partnership you: “[Name and address of the partnership and then name and address of each partner designed as “the partners thereof as such partners and individuals” - always use this form when suing a firm of partners. If sueing a firm of solicitors put name of firm, address of praetorship and name and address of each partner and say they are partners and individuals.
A partnership has a separate legal personality in Scotland. It may sue or be sued in the firm name.
As with companies, partnerships are required to disclose information about partners and business address, and the rules are found in part 1 of Companies Act 2006.
Like companies, partnerships can be dissolved in certain circumstances. Those circumstances are in s32 of partnership Act.
Dissolution of partnerships can simply be for the end of a particular venture. So a classic example is a fishing vessel - owners provide boat and skipper go out catch fish and sell profits between crew and owner, this is a joint venture for each trip.
Must find out what the partnership is, who the partners are, whether it is still in existence. If it has dissolved then you have to sue the surviving partners of the dissolved firm.
OCR 5.7 also applies to partnerships
It is competent to sue the individual partners in the same action.
J & F Anderson v Balnagown Estates Co 1939 SC 168
The surviving partners of a dissolved firm can sue or be sued
What are the rules for unincorporated associations?
The most common example is a private club.
They may sue or be sued in their own names and if carrying on business under a trading or descriptive name or otherwise they can sue in that name. So if the club has a name e.g. Edin Golf Club they can sue in this name. Always add the known office bearers and include these as defenders e.g. Find out who committee was at a particular time.
OCR 5.7 See too 1907 Act Section 3 (e), (n) (o)
In practice, known office bearers should be included as defenders.
What are the rules for sueing Trustees?
Where suing or being sued the individual trustees are named and designed as trustees and reference to the trust deed is made in the instance. So you are not seeing as individuals but seeing in capacity as trustees. You can get decree in their capacity as trustees. This is importance in respect of diligence being done against trust assets. If it is a trustee which is suing or being sued it is important that capacity is correctly identified.
“A.B. [designed], CD. [designed] and EF [designed] as trustees acting under the trust disposition and settlement by [enter details]
What are the rules for sueing Executors?
Either appointed as named in will and confirmation obtained: Succession (Scotland) Act 1964 S 20
Or appointed by court as executor dative.
In all proceedings executors are individually named and designed with reference to their means of appointment.
That is to say make reference to the confirmation which confirms the executor and spell out whether they are executor-nominate or dative.
What are the rules for sueing Representatives cognitionis causa tantum?
Situation where no executor appointed to deceased
It is incompetent to sue a deceased person - but can sue executor as representative
Where party dies have to convene a living representative before action can proceed any further.
Must sue their representative cognitionis causa tantum usually this is their next of Kin. You sue them as a representative, not as an individual.
Next to consider time limits here.
Can assignees sue?
it is competent to sell a right of action to someone else. The assignee will sue in own name but must narrate that having obtained the right to sue in an assignation. Generally narrate that in first article of condescendence in the initial writ. This is pleading with title to sue.
