Undertakings Flashcards
What is an ‘undertaking?’
An undertaking is any statement, whether or not it includes the word ‘undertake’
or ‘undertaking’, made by or on behalf of a solicitor or their firm to someone who
reasonably places reliance upon it, that the giver of the statement or a third party will do something or cause something to be done, or refrain from doing something.
Can be given orally or in writing
What is the effect of an undertaking?
Personally binds the solicitor and binds the firm
Must be performed in agreed timescale or reasonable time
If breached, solicitor may be personally sued and will have committed professional misconduct too
Remains enforceable even if a solicitor is unable to perform the undertaking without the cooperation of the client or a 3rd party
How will ambiguities in an undertaking be interpreted?
Likely that any ambiguity in the wording of the undertaking will be interpreted in favour of the recipient
What authority does a solicitor need before an undertaking is given?
Must have clear and express authority from the client before giving any undertakings
What effect does a change of circumstances have on an undertaking?
Remain binding on a solicitor if the circumstances change so that it is impossible to fulfil it, wholly or partly
How can an undertaking be enforced?
- Legal Ombudsman, SRA + SDT have no power to enforce the performance of an undertaking, but they can impose disciplinary sanctions against the solicitor and firm
- If given in their capacity as a solicitor, rather than personally, can be enforced in court - indemnity insurance protects against these claims
- Undertakings by LLPs are not capable of being enforced against the practice by the court
- Where not enforceable by the court, redress will be a claim under contract, negligence or breach of statutory trust (facts dependent)
What five factors should be considered before giving an undertaking?
It should be:
Specific
Measurable
Achievable
Realistic
Time constrained
