Chapter 11 - Enforcement of Undertaking

Question 1

ENFORCEMENT OF UNDERTAKING

Overview

Answer 1

1) What is an undertaking
2) Ways to enforce undertaking
3) Defence to breach of undertaking
4) Principle of undertaking
5) Enforcement of undertaking
6) Procedures for enforcement
7) Conditional undertaking

Question 2

ENFORCEMENT OF UNDERTAKING

What is an undertaking - overview

Answer 2

1) Definition
2) Scope
3) Effect of breach on profession
4) Failure to implement undertaking

Question 3

WHAT IS AN UNDERTAKING

Definition of an undertaking

Answer 3

• legal promise where the breach of which would attract liability;
• used to be issued by A&S but may be issued by various parties today.

Question 4

WHAT IS AN UNDERTAKING

Scope of undertaking

Answer 4

Sanjung Selamat Sdn Bhd v CL Chin Associates:

• A solicitors undertaking is a special undertaking and goes toward his integrity, his profession and his responsibility as an officer of the Court.
• Undertaking is there to facilitate legal transaction and to ensure efficient working in the legal fraternity.

Question 5

WHAT IS AN UNDERTAKING

Effect of breach on profession

Answer 5

Briggs v The Law Society:

• damages public confidence in the profession & in the system of undertaking.

Question 6

WHAT IS AN UNDERTAKING

Failure to implement undertaking

Answer 6

Udall v Capri Lighting Ltd:

• will be regarded prima facie as a form of misconduct.

Question 7

WAYS TO ENFORCE UNDERTAKING

three ways

Answer 7

General:

• applying to the court to exercise its intrinsic authority to order a solicitor (as an officer of the court) to fulfil an undertaking, i.e. summary jurisdiction; or
• complaint to the DB for misconduct; or
• bringing a civil action in court for breach of undertaking and claim for specific performance and/or damage.

Udall v Capri Lighting Ltd:

• LAW: action at law for valid cause of action;
• COURT: application to court to invoke inherent jurisdiction;
• LAW SOCIETY: application to the Law Society (i.e. Bar Council).

Question 8

DEFENCE TO BREACH OF UNDERTAKING

the defences

Answer 8

1) Defence of mistake - Tunku Ismail v Hisham, Sobri & Kadir:
- an undertaking will not be enforced if the court is satisfied that the mistake went further than what a solicitor intended or was aware of.
2) Defence of impossibility - Re An Solicitor:
- court will not enforce an undertaking of solicitor to do something which is impossible for him to carry out.

Question 9

PRINCIPLES OF UNDERTAKING

overview

Answer 9

1) Whether word undertaking is necessary
2) Given in capacity as solicitor
3) Clear, unambiguous & unequivocal
4) Undertaking by legal assistant
5) Undertaking given to third party

Question 10

PRINCIPLES OF UNDERTAKING

whether word undertaking is necessary

Answer 10

Ho Peng Kwan v Tricorp Properties:

• the express use of word “undertaking” is not necessary;
• proper construction is to be placed on the letter, from the language used & in light of surrounding circumstances.

Question 11

PRINCIPLES OF UNDERTAKING

capacity

Answer 11

Geoffrey Silver & Drake v Thomas Anthony Baines:

• an undertaking must be given by the solicitor in the course of his activities as a solicitor;
• it must be given in his professional capacity not in personal capacity.

Question 12

PRINCIPLES OF UNDERTAKING

clear, unambiguous & unequivocal

possible to perform

Answer 12

1) Meaning - John Fox (A Barrister) v Bannister & Rigbeys (A Firm):

• an undertaking must be clear, not ambiguous & unequivocal.
• the words rely must be sufficiently clear in meaning;
• there must be no material ambiguity.

2) Example - Bank Kerjasama Rakyat Malaysia Bhd v Tetuan Haranay, Roni & Anikay:

• “We hereby give you our express & unqualified undertaking to pay you”.
• this is a proper case to enforce the undertaking for the clear words use.

3) possible to perform - Oriental Bank Bhd. v Abdul Razak Rouse:
- the undertaking must be one which is not impossible ab initio for the solicitor to perform

Question 13

PRINCIPLES OF UNDERTAKING

undertaking by legal assistant

undertaking by firm

Answer 13

1) legal assistant - Tunku Ismail v Tetuan Hisham, Sobri & Kadir:

• a firm is bound by undertaking given by legal assistant in a firm;
• legal assistant has an ostensible authority;
• onus of proving ostensible authority is on the plaintiffs.

2) undertaking by firm - Bank Kerjasama Rakyat Malaysia Bhd. V Tetuan Harany, Rani & Anikah:
- An undertaking by a firm, binds the partners of the firm

Question 14

PRINCIPLES OF UNDERTAKING

undertaking given to 3rd party

Answer 14

Re Francis Seow:

• undertaking given to 3rd party is enforceable;
• it is enforceable even though the solicitor personally may not have been in breach of it.

Question 15

ENFORCEMENT OF UNDERTAKING

Overview

Answer 15

1) Whether it is misconduct
2) By Bar Council
2) By the Court

Question 16

ENFORCEMENT OF UNDERTAKING

whether it is misconduct

Answer 16

Whether it is misconduct:

• BCR 14.09(1)(a): Failure to honour an undertaking amounts to professional misconduct
• BC Conveyancing Practice Rulings, Ruling No. 22: Failure to honour an undertaking is abreach of professional conduct.

i.e. This could result in the undertaking being enforced in Court and could also result in disciplinary proceedings being taken for the breach.

Question 17

ENFORCEMENT OF UNDERTAKING

by Bar Council

Answer 17

Disciplinary offence - Udall v Capri Lighting Ltd:

• failure to implement a solicitor’s undertaking amounts to misconduct;
• it is enforceable as a disciplinary offence by the Bar Council.

Question 18

ENFORCEMENT OF UNDERTAKING

by the Court

Answer 18

• undertaking can be enforced by applying to court to exercise for summary jurisdiction.

Question 19

PROCEDURES FOR ENFORCEMENT OF UNDERTAKING

overview

Answer 19

1) Procedures to invoke summary jurisdiction
2) Procedures to complaint to DB for misconduct
3) Procedures for civil suit for breach
4) Procedures to cite for contempt

Question 20

PROCEDURES FOR ENFORCEMENT OF UNDERTAKING

Summary jurisdiction

Answer 20

1) Inherent jurisdiction - S&M Shopping Arcade SB & Ors v Fui-Lian Kwong Hing SB (No.2):
- court has inherent jurisdiction to entertain application for enforcement of undertaking.
2) Exercise of summary jurisdiction - Bank Kerjasama Rakyat v Tetuan Harany, Rani & Anikah:
- court can exercise its summary jurisdiction to enforce D’s undertaking.
3) Procedures - Seah Choon Chye v Saraswathy Devi:

• application should be entitled in the matter of the solicitor & supported by affidavit;
• No SOC or defence required.

4) Enforcement - Tunku Ismail v Tetuan Hisham, Sobri & Kadir:
- court may only summarily enforce the undertaking if the undertaking is clear, unambiguous & unequivocal.

Question 21

PROCEDURES FOR ENFORCEMENT OF UNDERTAKING

Complaints to DB

Answer 21

1) The rule - Lee Chee v Allen & Gledhill:
- For complaints of misconduct, malpractice or dishonest in connection with D’s practice as A&S, Plaintiffs may refer & file their complaints to the Bar Council.
2) Application - Rajasooria v DC:

• Where a solicitor knowingly submit a false document as exhibits in court, the DC suspended the solicitor for 6 months forhis gross misconduct.
• A professional misconduct complaint must be filed to Bar Council.

Question 22

PROCEDURES FOR ENFORCEMENT OF UNDERTAKING

Civil suit for breach

Answer 22

1) Remedies - Re Choe Kuan Him, Advocate & Solicitor; T Damodaran v Choe Kuan Him
- If monies are paid to third parties in breach of an undertaking, the court could order the solicitor is liable to restore those funds regardless of whether they are recoverable from third parties.
2) Power of court - Udall v Capri Lighting Ltd:

• If the misconduct causes loss court may order solicitor to make good the loss.
• The fact that the undertaking was to be performed by a third party shall not be a defence.

Question 23

PROCEDURES FOR ENFORCEMENT OF UNDERTAKING

Contempt of court

Answer 23

• Breach of an undertaking by a solicitor is regarded by courts as an extremely serious matter and in some instances may result in a civil contempt of court.