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1. In certain circumstances, a partnership may have a legal personality for the purpose of criminal law, and so may be prosecuted1- for example, where business activities are conducted in the name of a partnership and the partnership has identifiable assets that were distinct from the personal assets of each partner. However, partnerships and limited partnerships (see below) must not be confused with a limited liability partnership, which will always have a legal personality. If you are considering prosecuting a partnership (or limited partnership) in its own right rather than prosecuting individual partners, you should seek advice from Legal Adviser’s Office.
2. In a standard partnership, each partner is jointly and severally liable for the acts of the partnership. Where an individual partner is convicted their personal assets are relevant on sentencing and the option of imprisonment exists. However where HSE prosecutes the partnership sentencing is limited to consideration of assets held by the partnership.
3. In principle, all partners should be charged, unless there are good reasons for excluding some, particularly if the division of responsibilities is unknown. Discretion may be exercised based on factors such as the nature of the offence and the division of responsibilities within the partnership.
4. A separate Information should be laid for each partner proceeded against and the Information should be laid against the partner in his/her own individual name.
5. Some offences may arise from acts of an individual partner acting outside the scope of the partnership business, for example by obstructing an inspector. In such cases only the individual concerned should be prosecuted. If questions arise as to which partners should be prosecuted, advice should be sought through your line management to the legal liaison points who may in turn contact Legal Adviser’s Office.
6. A limited partnership must not be confused with limited liability partnerships, which are discussed below.
7.A limited partnership consists of one or more 'general partners', who are liable for all debts and obligations of the firm, and one or more 'limited partners', who are liable upon terms of limited liability to the firm's creditors - i.e. they are only liable up to the financial amount they have invested in the partnership.2
8. A limited partnership must be treated as an ordinary partnership when issuing proceedings, but you should bear in mind that there are limitations as to the amount that can be recovered by way of fine from a limited partner, who is only liable to the limit of the sum they contributed to the partnership.
9. As limited partners play no part in the management of the business3 it is usually appropriate to proceed against the general partners only. However there may be exceptional circumstances for example if there is evidence that a limited partner has taken part in the management of the firm, that the limited partner should be prosecuted. In such circumstances you should seek advice from Legal Adviser’s Office.
10. All limited partnerships must be registered with the Registrar of Companies by a statement signed by the partners, including the sum contributed by each limited partner which specifies the limit of his/her liability 4. In all cases where the partners in a partnership are potential defendants you should carry out a search of the Companies Register5. The certified copy of the registered statement will identify the limited partners, and the contributed sum.
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