Thursday, January 31, 2013

COLP Advice - Undertakings Guidance

The SRA does not posses the power to direct the specific performance of an undertaking or to direct the payment of compensation to a third party. Nevertheless a breach of an undertaking will more than likely lead to disciplinary proceedings.

The SRA will treat a promise to give an undertaking as an undertaking provided the promise
sufficiently identifies the terms of the undertaking and provided any prior conditions have been
satisfied.

Your lawyers are not obliged to adopt the approach below and following tips are provided only as good practice indicators :

  • To ensure that an undertaking is given only by a member of staff with authority expressly given on a Durable Medium by the firm.
  • In the area of conveyancing be sure that all staff are aware of the terms of undertakings incorporated by the use of the Law Society’s formulae for exchanging contracts by telephone and its code for completion by post.
  • To note on the file and confirm in writing to the other party any agreed variation to undertakings
  • To note separately the terms of undertakings on file.
  • To ensure that undertakings are only if the authorised member of staff can be absolutely certain that it will be fulfilled.
  • Where making or accepting an undertaking “to pay costs” specify the amount of costs since if no sum is agreed the undertaking may be interpreted as meaning “to pay reasonable costs”.
  • To ensure the wording of an undertaking is unambiguous, since only in exceptional circumstances will extraneous evidence be admitted to clarify an ambiguity;
  • Where an undertaking is dependent on the happening of a future event to notify the recipient immediately if it becomes clear that the event will not occur.
  • To be as specific as possible. For example where you are acting on a conveyancing sale to identity the lender and the date of each charge it is intended to discharge in reply to any requisitions on title or otherwise.
  • Only give an oral undertaking as a last resort and ensure that it is confirmed in writing as soon as is practicable.
  • Avoid giving or accepting an undertaking using terms such as “best endeavours” or “reasonable endeavours”: be as specific as possible .

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