Enforcement Of Solicitors' Undertaking

• Published date: 10 May 2023
• Subject Matter: Real Estate and Construction, Conveyancing, Real Estate
• Law Firm: Gatehouse Chambers
• Author: Ms Byroni Kleopa
• topic: Business of Law,Contracts,Banking and Finance Law,Corporate / Commercial,Civil Procedure,Real Estate

Professional undertakings are commonly used in residential conveyancing where the Law Society's Code for Completion by Post is adopted, enabling a faster more convenient style of completion. Underpinning this is the security of a solicitor's undertaking; each side having confidence that the various undertakings are going to be complied with by all the participating solicitors. These undertakings will usually include the redemption or discharge of any mortgage or loan out of the purchase moneys, authority to receive moneys, delivery of documents to the purchaser, notification that completion has taken place and authorisation to release the keys to the purchaser.

The confidence in this scheme for completion came from the availability of rapid summary enforcement of non-compliance with an undertaking under the court's supervisory jurisdiction which made it extremely unlikely that a solicitor would fail to comply. A recipient of an undertaking could apply to the court for summary judgment and an order that the solicitor comply with the terms of the undertaking. Any failure to comply would result in the solicitor being held in...