How firm is a prosecution of a dissolved firm?
On 25th July 2008 the High Court of the Justiciary gave judgment in the case of Balmer v HMA 2008 HCJAC 44, a petition to the nobile officium. In this case the High Court had to decide whether a dissolved firm could be prosecuted for breach of statutory offences.
The prosecutions related to a fire at Rosepark Nursing Home in 2004 which resulted in the death and injury of a number of the residents. An earlier attempt to prosecute the partners as individuals was unsuccessful, the indictment being irrelevant in the view of Lord Hardie because the firm was the employer for the purposes of the Health and Safety at Work etc. Act 1974.
A new indictment was prepared in the name of the firm, which had itself been dissolved in February 2005. The court therefore had to consider whether the dissolved firm had any continuing personality subsequent to dissolution.
This topic was canvassed by the Law Commission and Scottish Law Commission in their joint consultation paper on Partnership Law in 2000 (paras 8.8 – 8.28), and the general issue of continuing personality was considered elsewhere in this paper (paras 2.34 – 2.35).
The petitioners argued that the dissolution of the firm meant that the legal person had ceased to exist, and consequently could not be prosecuted. And if this argument was unsuccessful it was argued that any ongoing existence of the firm was solely for the purposes of winding up the firm, and prosecution was not possible.
Argument for the Crown relied on the common law of partnership prior to 1890 (still relevant in interpreting the Partnership ACt 1890 as this was a codifying statute) and a policy argument expressing concern if a firm could escape criminal liability by dissolution – pointing out potential consequences if the firm was to dissolve during proceedings.
The High Court gave a full consideration of authorities, both pre- and post-1890 Act, and concluded that dissolution extinguished the legal person that was the firm. The Court notes at paras 80ff,
"we have great difficulty with the notion of varying or limited degrees of juristic personality. While it is no doubt possible for a person, whether natural or juristic, to have limitations on his or its powers of or capacities, the notion of some limited degree of personality is not readily understandable in juridical terms and, importantly, has no support in any of the authorities to which we were referred. In our view, in principle, there is either a person or there is not a person. Personality, whether natural or juristic, is not created or extinguished in slices or instalments.
" The suggestion that personality might exist for some purposes but not others underlay a further aspect of the submission for the Crown, namely that for what might shortly be termed policy reasons, the Court should hold that a dissolved partnership retained a limited separate persona for the purposes of criminal prosecution. While naturally acknowledging the existence of the policy reasons to which the Advocate depute referred, we did do not consider that the structures and principles of the law relating to the creation and extinction of legal personality can lightly be departed from on the simple ground of expediency so as to enable one to say that a person in all respects having died or ceased to exist, is yet deemed to be alive or extent extant as a person who can receive and accept service of an indictment and instruct entry of a plea and conduct a defence. The present positions petitions are in some ways an exemplification or reflexion of the fundamental juridical difficulty of this indictment, namely that it bears to accuse a person who does not exist.
 We are of course very conscious of the undesirability of prosecution of the commission by a partnership of a criminal offence being frustrated by the partnership's ability to dissolve itself, or by its susceptibility to dissolution by other events, particularly if by dissolution the partners are also to be exonerated. However, we would observe that, as was pointed out by counsel for the petitioners, matters are not as stark or extreme as might appear at first sight. In the case of most common law crimes and many statutory offences the individual partner responsible for the act or omission will be readily identifiable and can be prosecuted in his personal capacity."
The indictment was accordingly dismissed as incompetent.
One final note. The case was heard before Lord Macfadyen, Lord Eassie and Lord Wheatley, with Lord Macfadyen in the chair. However, while he was preparing a draft opinion his illness accelerated and he sadly died. Lord Macfadyen was replaced by Lady Paton in the case, and the opinion of the court acknowledge the work of Lord MacFadyen at para 86
"The finalised Opinion which we now issue is to a that material extent based on the groundwork of Lord Macfadyen, to whose valiant industry we are indebted."