Undetakings Flashcards
what is an undertaking?
A type of promise - if solicitor makes a promise to do something, the person to whom that promise is made should be able to rely on the solicitor in fact doing so (integrity)
How can an undertaking be given and when should it completed?
-orally or in writing
- within an agreed timescale or within reasonable amount of time
Can a undertaking be withdrawn?
only by agreement
Can a undertaking made on a solicitors behalf by a member of staff?
Maybe
What is the breach of an undertaking?
Solicitor may be sued personally and will be in breach of the Code of Conduct for Solicitors and may be disciplined by SRA or SDT
Whats advised when solicitors gives an undertaking?
Maintain an effective system that records when undertaking given and when they have been discharged
(if oral do attendance note recording and confirm it in writing asap)
When would a solicitor use reasonable endeavours for an undertaking?
When the act is outside of the solicitor control, for example forwarding a document which is not in the solicitor’s possession
This will impose lesser obligation therefore recipient may choose not to accept
Is it possible for solicitor to give an undertaking on behalf of the client?
Yes, solicitor will have to expressly disclaim personal liability in very clear terms. However, unlikely to be accepted by the other party
Firms are required to carry indemnity insurance to cover such claims, but if the value of the claim exceeds the policy’s excess, the solicitor may be personally liable.
Which law firms cannot enforceable by the court for an undertakings?
Undertakings given by incorporated law practices, such as limited companies or LLPs, cannot be enforced against the practice by the court due to their separate legal entity status.
What can the aggrieved party do if undertaking is not enforceable by the court?
the redress for its breach will be a claim under contract, negligence or breach of statutory trust depending on the facts.
What happens if there is a breach of undertaking?
Is likely to be a breach of professional conduct.
However, given the court’s jurisdiction over solicitors concerning undertakings, the SRA does not usually investigate a breach of an undertaking given to the court itself, unless the court reported the matter to the SRA.
Can the LeO, SRA or SDT enforce the performance of an undertaking?
No, they can only investigate the matter and impose disciplinary sanctions
