Learning Outcomes
After studying this article, you will be able to: identify and apply the SRA Code of Conduct requirements concerning giving and accepting undertakings in legal practice; explain what constitutes an undertaking, who is bound, and why they must be performed; distinguish between personal and firm liability; recognise the consequences of breach, including enforcement actions and disciplinary procedures; and anticipate common SQE2 assessment pitfalls.
SQE2 Syllabus
For SQE2, you are required to understand the SRA Code of Conduct provisions on undertakings in practical scenarios. When revising, focus on:
- The definition and nature of an undertaking under the SRA Code of Conduct
- Who can give and accept undertakings (including non-admitted staff) and who is bound
- When a statement amounts to an enforceable undertaking
- Personal and firm liability for undertakings (including scope of authority)
- The consequences of breaching an undertaking, including enforcement routes and SRA disciplinary action
- Best practice in giving, managing, and accepting undertakings
- How undertakings may arise and be tested in common practice settings (e.g., property transactions, litigation, funding)
- Common errors and exam traps regarding undertakings
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is an undertaking in the context of the SRA Code of Conduct? Does it have to be in writing?
- True or false? An oral promise by a trainee solicitor can amount to a binding undertaking for the firm.
- Who is liable if a solicitor gives an undertaking to pay funds by a specific date but cannot do so because their client fails to provide the funds?
- What are the possible professional and legal consequences of breaching an undertaking?
Introduction
Undertakings are a routine—yet high-risk—feature of legal practice in England and Wales. At the SQE2 level, you must know how solicitors, and firms, are bound by undertakings under the SRA Code of Conduct, what makes a statement an undertaking, and the severe consequences of failing to perform undertakings. These rules reflect not just technical compliance, but are central to public trust in the legal profession.
The SRA Code of Conduct requires solicitors and firms to perform all undertakings given, whether orally or in writing. To do otherwise is to risk enforcement by courts and the SRA, personal liability, and damage to the client's case or commercial interests.
Key Term: undertaking
An undertaking is a solicitor's (or firm’s) promise, given orally or in writing, to do or not do something (or cause something to be done), reasonably relied upon by another, and made in the course of legal practice. If breached, it can be enforced by the courts regardless of whether the word 'undertake' is used.Key Term: personal liability
Personal liability means a solicitor is legally responsible for performing an undertaking, even where the solicitor had no control over the outcome (such as relying on the client or a third party).Key Term: breach of undertaking
Any failure to comply with the terms of an undertaking, or delay beyond an agreed or reasonable time, whether intentional or not.
Importance of Undertakings
Undertakings enable transactions and litigation to proceed efficiently by allowing lawyers to rely on each other's promises. Because clients, courts, and third parties expect solicitors to keep their word, compliance with undertakings is fundamental to professional trust and integrity.
Failing to carry out an undertaking:
- Can directly affect outcomes for clients and third parties
- Immediately undermines public trust and confidence in the profession
- Frequently leads to legal and professional sanctions
When is a Statement an Undertaking?
An undertaking can arise in any area of practice. It does not require formal wording or to use the word 'undertake'. The test is substance—would a reasonable person rely on the statement as a promise by the solicitor (or firm) to act or refrain from acting?
Common examples of undertakings:
- Promising to pay money, discharge charges, or send documents by a certain date
- Assuring compliance with court orders
- Confirming to another solicitor, party, or the court that a specific act will be performed
Key Term: scope of authority
The limits on a solicitor’s power to bind themselves or the firm to an undertaking. Lack of actual authority does not usually protect the solicitor from personal liability if they purport to give the undertaking.
When does the Firm Become Bound?
If an undertaking is given by someone on the firm's behalf (including paralegals, trainees, non-admitted staff), and the recipient reasonably believes it to be binding, then both the individual and the firm may be liable.
Key considerations:
- Many firms restrict who can give undertakings.
- Only those with explicit authority should provide undertakings on behalf of the firm.
- The SRA Code of Conduct for Firms repeats the requirement regarding undertakings.
Worked Example 1.1
A property solicitor, without checking with her firm or client, states in an email to the buyer's solicitor: "We will discharge the existing mortgage on completion."
Answer:
This is an undertaking. Both the individual solicitor and her firm are bound, even though she did not have authority from the firm or client to promise this. If the mortgage is not discharged, both are liable.
Enforcement and Consequences of Breach
Breaching an undertaking is treated extremely seriously.
Key Term: enforcement of undertaking
The right for a court or the SRA to compel the solicitor, and sometimes the firm, to perform an undertaking or compensate any loss arising from its breach.
The recipient has several routes if an undertaking is breached:
- Civil enforcement: Courts can order the solicitor (and sometimes the firm) to perform the act, compensate for loss, or, in extreme cases, punish for contempt.
- SRA discipline: All breaches are reportable and may result in disciplinary proceedings, sanctions, fines, suspension, or even being struck off.
- Compensation claims: If loss results from breach, damages may be awarded.
Breaching an undertaking can also damage client relationships, disrupt transactions, and bring reputational harm to the firm.
Worked Example 1.2
A trainee orally assures opposing solicitors in litigation: “We will serve the disclosure list by Friday.” The list is not served until the following Tuesday.
Answer:
This is a binding undertaking, even though it was not in writing and the trainee lacked authority. The firm and the trainee are both accountable. The client could be prejudiced, and the breach may be reported to the SRA.
Best Practice and Avoiding Problems
Before giving an undertaking:
- Only give undertakings you are certain you or your firm can personally fulfill
- Confirm all terms in writing wherever possible
- Obtain client’s informed consent to promised acts
- Avoid giving undertakings on matters outside your control (such as a third party’s actions)
- Be precise and avoid ambiguity—unclear undertakings will be construed against the giver
Solicitors should keep a central record of all undertakings given and ensure compliance is monitored.
Exam Warning
In SQE2, avoid assuming that a solicitor can avoid liability for an undertaking because the client provided no funds or because circumstances have changed—these are not accepted legal excuses. Undertakings must be performed regardless.
Worked Example 1.3
A litigation solicitor promises to send a court-ordered payment by Friday, conditional on the arrival of client funds, but fails to mention the condition in communications to the other side.
Answer:
The solicitor's statement is an unconditional undertaking. Personal liability arises if the funds do not arrive and the payment is not made. The solicitor cannot use non-receipt of client funds as a defence in enforcement proceedings.
Advising Clients and Other Staff
Part of the solicitor’s duty is to warn clients of the consequences if an undertaking is breached and to instruct staff clearly on who may give undertakings.
Revision Tip
If you are unsure if a statement amounts to an undertaking, ask: “Would a recipient reasonably believe they could safely rely on the promise and suffer loss if it was not kept?” If yes, it is almost certainly an undertaking.
Key Point Checklist
This article has covered the following key knowledge points:
- An undertaking is a binding promise by a solicitor or firm to do or not do something, whether given in writing or orally.
- Undertakings may be enforced by the courts or through SRA disciplinary action.
- Both individual solicitors and their firms can be liable for undertakings, including those given by non-admitted staff.
- Liability to perform an undertaking is personal—it cannot be avoided due to lack of funds, mistake, or changes in circumstance.
- Best practice requires only giving undertakings that are within your personal control, accurately recording them, and ensuring compliance.
- Breach of an undertaking almost always results in disciplinary action and may result in personal liability for compensation or a wasted costs order.
Key Terms and Concepts
- undertaking
- personal liability
- breach of undertaking
- scope of authority
- enforcement of undertaking