Colp & Cofa

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 .