What is an undertaking?

The SRA glossary defines an undertaking as:

“a statement, given orally or in writing, whether or not it includes the word “undertake” or “undertaking”, to someone who reasonably places reliance on it, that you or a third party will do something or cause something to be done, or refrain from doing something.”

Why are they so important?

Undertakings are an intrinsic part of many different areas of legal practice.  However, they are of particular importance to residential conveyancers where undertakings are given routinely to progress transactions.  Without them, the conveyancing process in its current form would break down.

The regulatory position

The SRA Standards & Regulations, paragraph 1.3 in both the Code of Conduct for Firms and the Code of Conduct for Solicitors require that:

“you perform all undertakings given by you and do so within an agreed timescale or if no timescale has been agreed then within a reasonable amount of time”.

In determining whether an individual or firm is in breach of the regulations, the SRA will also have regard to the SRA Principles, in particular 1, 2 and 5 (upholding the rule of law, public trust and confidence in the profession, and acting with integrity).


Lexcel accredited practices must document procedures for the giving, monitoring and discharge of undertakings.  There is no requirement to have a separate undertakings policy but for effective risk management firms may wish to set out their general policy before detailing the day-to-day procedures to be followed.

The Lexcel glossary of terms describes a procedure as follows:

A ‘procedure’ is a written description of how an activity will occur within the practice. A procedure describes the steps that personnel are required to follow in order to complete an activity. At an assessment, a procedure can only be said to be complied with if the assessor can observe that the procedure contained in the practice’s documentation is in effective operation. All procedures must have a named person who is responsible for the procedure. They must also be reviewed at least annually.

The associated Lexcel guidance for legal practices states that “the procedures should address who within a practice is permitted to give undertakings and the consequences for personnel, should they be found to be in breach of the procedures.

Practices may decide to subdivide the procedure for undertakings by department, as the type and frequency of undertakings can significantly vary by work type.”

These requirements are also reflected in the Law Society’s Conveyancing Quality Scheme (CQS).

What your policies and procedures should cover

  • Set out who is authorised to give undertakings on behalf of the firm. It may be helpful to be explicit about what you consider to be standard/routine undertakings (such as many which form part of standard conveyancing procedures) and non-standard undertakings, as it may be appropriate to have more stringent controls in place for the giving of non-standard undertakings.  It may also be helpful to consider the arrangements on a team or departmental basis given the type and frequency may vary by work type.

  • From a risk management perspective, draw attention to higher risk issues including, for example:

    • Making sure that an actual value is specified in financial undertakings, even if they are for costs, and stating whether the sum is inclusive or exclusive or VAT;
    • Also in relation to costs undertakings, making sure that if the costs are payable whether or not the matter proceeds to completion, the undertaking reflects this. If not discharge will generally be implied in the event that the matter becomes abortive.
    • Ensuring that funds are obtained on account and that irrevocable written authority has been given by the client;
    • Checking that funds are or will be available (eg. ensuring redemption figures are available and there will be sufficient proceeds of sale available before giving an undertaking to discharge a mortgage on completion);
    • When giving financial undertakings, ensuring that client account is not being used as a bank, contrary to the SRA’s accounts rules;
    • Taking care with the giving or receiving of undertakings using the phrases “best endeavours” or “reasonable endeavours” as all reasonable courses of action will need to be taken. In the event of a dispute each case will be construed on its own facts;
    • Being as precise as possible with the wording of any undertaking and ensuring that it is within the giver’s control. Don’t accept an undertaking from the other side if you know what they are undertaking to do is outside their power.  If ultimately they cannot comply with the undertaking it will almost always be your client who is negatively impacted.

  • Oral undertakings have the same effect as written ones. It is therefore important to ensure that any oral undertakings are followed up promptly with written confirmation of the terms or a contemporaneous note made at the time.

  • Lexcel accredited firms must also set out their procedure for giving, monitoring and discharging undertakings. Personnel should therefore be instructed:

    • How to notify the appropriate personnel responsible for compliance within your firm when they have given an undertaking (this can be via a standard form);
    • Who is responsible for maintaining the central register;
    • How undertakings should be noted on the file (on the file/key information sheet and any other visual reminder on the front of the file/electronic flag on your case management system);
    • Whether performance of the undertaking is date specific and therefore needs to be treated as a key date;
    • When and how often monitoring will take place and by whom;
    • What administrative steps need to be taken on discharge of an undertaking to ensure that the central register is kept up to date;
    • If it is possible to build it into your process, it would also be prudent to ensure that files cannot be closed without evidence of discharge;
    • The consequences for personnel should they found to be in breach of your policy/procedure;
    • The name of the person responsible for the procure; and
    • A statement that the policy will be reviewed at least annually.

Enforcement of undertakings and the impact of Harcus[1]

Whilst not new, the case of Harcus Sinclair v Your Lawyers [2021] UKSC 32 (Harcus) recently brought the enforcement of undertakings to the fore.  In the event of a breach of undertaking the following remedies are potentially available, with option 3 likely to provide the simplest and quickest resolution:

  1. If the undertaking is expressed contractually it may be enforceable as a contract;
  2. The SRA may take disciplinary action against the individual in breach;
  3. Solicitors, as officers of the court, are be subject to the inherent jurisdiction of the High Court who may summarily enforce the undertaking.

In the case of Harcus, the Supreme Court re-confirmed that the court has no jurisdiction to enforce undertakings against limited companies or LLPs.  They also made it clear that an individual solicitor signing on behalf of their firm did so as a disclosed principle rather than being personally liable.

As mentioned above, this is nothing new but it has led to concern amongst firms with some seeking personal undertakings from individual solicitors as a way of ensuring that this option of enforcement remains available to them.

There is no evidence that the breaching of undertakings is a significant issue in legal practice.  However, from a risk management perspective:

  • Taking into account the risk (which will be higher for non-standard undertakings), your firm should consider whether they are willing to accept undertakings from those who are not subject to the inherent jurisdiction of the court (remembering that same applies to others not referenced in Harcus – such as licensed conveyancers) and conversely whether, if you are structured as an LLP or limited company, your firm’s partners are willing to give personal undertakings should they be asked to do so.
  • Consider whether it is possible for any given undertaken to be worded so that it is enforceable as a contract.
  • Consider whether it is appropriate to discuss the risk with your client. Information could be included in your retainer letter or terms of business but in a matter which relies on substantial undertakings it would be more prudent to have a separate discussion with the client, which should of course be documented.  This mitigates the risk of clients not reading the CCL or fully appreciating the significance of the issue.
  • Check with your insurers that you are covered for the giving of undertakings (if you are a limited company or LLP) and in the event that you accept an undertaking which proves to be unenforceable.

[1] Harcus Sinclair v Your Lawyers [2021] UKSC 32

Disclaimer: Nothing contained within this document represents legal advice to any person, nor does it represent a comprehensive statement of the law. Accordingly, it should not be relied on as such.