DMBM680230 - Ordinary Cause: Existing or ceased partnerships - considerations before ordinary cause action
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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 Debt Management Edinburgh Group Office for advice on how to word your claim.
Partner resides or carries on business outside Scotland but within the United Kingdom
Where a partner is resident or carries on business outwith Scotland but within the remainder of the United Kingdom, Isle of Man or Channel Islands service can be effected by either postal service in Scotland by registered post or personal service as required by the domestic law of the country.
Unless circumstances suggest that it would be ineffective to do so you should always in the first instance ask the sheriff officer to cite the defender by post.
Partner gone unknown
Where a partner has gone unknown Rule 5.6 of the Ordinary Cause Rules 1993 advises that the sheriff may grant a warrant to cite by means of either a newspaper advertisement circulating in the area of the defenders last known address or a notice displayed on the walls of the court. DMBM680340 and DMBM680350 dvise you on how to seek warrant from the sheriff and DMBM680590 and DMBM680600 advise you on how to instruct the sheriff officer etc once warrant to cite by either of these means has been granted.
Partner or partnership sequestrated
Where the partnership is sequestrated but any partner remains solvent or any or all the partners are sequestrated but the partnership remains solvent you should
- take or continue action including the firm and all the partners in the action but
- exclude any reference to the sequestration in the initial writ.
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.