DMBM675230 | Summary proceedings (Sc): Existing or ceased partnerships - considerations before SP action

Some content of this manual is being considered for archiving. If there is content you use regularly, please email [email protected] to let us know as soon as possible.

You must include all partners as defenders in the action. Do not ignore any partner whose address is unknown or who is deceased.

Deceased partners

In cases where one or more of the partners is deceased you should

• obtain the full names and addresses of any executors and

• refer your papers to the Debt Management Edinburgh Group Office for advice on how to word your statement of claim.

Partner resides or carries on business outside Scotland but within the UK

Where a partner is resident or carries on business outside Scotland but within the remainder of the UK, Isle of Man or the Channel Islands Rule 5.7 of the Summary Cause Rules 2002 allows for citation and service by postal methods.

Difficulties can arise in doing this however, so before taking any action in such a circumstance, refer your papers with a full report of the case to the Debt Management Edinburgh Group Office.

Partner resides outside the UK

Where a partner is resident outside the UK special rules apply so before embarking on any action in such a circumstance you should refer your papers together with a full report to the Debt Management Edinburgh Group Office.

Partner gone unknown

Where a partner has gone unknown Rule 5.5(1a) of the Summary Cause Rules 2002 advises that the sheriff may grant a warrant to cite him by means of a newspaper advertisement circulating in the area of the defenders last known address.

DMBM675320 advises you on how to seek warrant from the sheriff and DMBM675490 advises you on how to instruct the sheriff officer etc once warrant to cite by this means has been granted.

Partnership or partner(s) sequestrated

Where the partnership is sequestrated but any partner remains solvent or any or all of the partners are sequestrated but the partnership remains solvent you should

• take or continue SP action including the firm and all the partners in the action but

• exclude any reference to the sequestration in the summons.

Partnership dissolved - assets held

In cases where a partnership has either been dissolved or has ceased to trade and you know that substantial assets are held in the partnership name e.g. heritable property or a bank account you should refer your papers to the Higher Debt Manager with a full report. Difficulties can arise in such cases and it may be desirable for an action to be commenced in the court of session rather than the sheriff court.