The giving and receiving of undertakings following the Supreme Court Judgment in Harcus Sinclair LLP -v- Your Lawyers Ltd

An undertaking is an agreement by a solicitor to do something, or not do something, that is relied upon by a third party. It may be given in writing, or orally and even unintentionally.

Any failure to comply with an undertaking is serious business. The undertaking may be summarily enforced by the Court by exercising its longstanding supervisory jurisdiction over solicitors and regulatory sanction may also follow.

It has long been assumed that an undertaking provided by a law firm trading as a limited company or a limited liability partnership was subject to the supervisory jurisdiction of the Court in the same way as an undertaking given by a solicitor personally or on behalf of an unincorporated partnership. In this way, any breach of undertaking was similarly assumed to be capable of being remedied by the Court inexpensively and swiftly.

These assumptions were confirmed to be wrong by the Supreme Court when it handed down Judgment in Harcus Sinclair LLP -v- Your Lawyers Ltd on 23 July 2021.

Consequently, all legal practitioners must be alive to the hitherto unappreciated risks of accepting an undertaking from an incorporated legal practice. By the same token, incorporated practices must expect to be asked to provide a personal undertaking.

This briefing note explains the background to the Court's ruling, its consequences and the practical steps that legal practitioners should now be taking in response

To read the full briefing note click on the right hand side.