Conduct and service

Conduct and service

The costly undertaking

Undertakings that have not been performed prompt many complaints to the Office for the Supervision of Solicitors (OSS).

It might transpire that the solicitor gave an undertaking to do something over which he had no control and was relying on someone else, frequently the client, to do something that would enable him to comply.

Such instances of breaches of undertaking may be due to lack of forethought or caution, with the actual undertaking being given with the solicitor never expecting to be let down by the other party.

More alarming are those occasions where there is no reason for the failure to comply and the solicitor refuses to give any explanation.

A solicitor was acting on the purchase of a leasehold property in circumstances that required his client to pay the freeholders' costs.

Being required to give an undertaking to that effect, he sought to put a ceiling on those costs.

The landlord's solicitors agreed to this.

The undertaking was consequently given.

When the landlord's solicitors rendered their bill, it was for much less than the agreed ceiling figure.

In fact, it was for a modest sum.

However, payment was not forthcoming.

No fewer than four chasing letters were sent by the landlord's solicitors without any response.

About ten months after the undertaking should have been performed, they reported the matter to the OSS.

When the OSS wrote to the solicitor, its letters were also ignored.

Four letters were sent by the OSS over a five-month period.

Several telephone calls were also made, during which the solicitor promised to fulfil the undertaking within seven days, but it was several weeks after the last before the undertaking was honoured.

Even then, there was no explanation for the delay.

The breach of undertaking was now exacerbated by professional misconduct in failing to reply to OSS correspondence.

Not only did this result in a severe reprimand being issued to the defaulting solicitor, but the matter also cost him 840 - the fixed costs of the investigation by the OSS.

Every case before the adjudication panel is decided on its individual facts.

This case study is for illustration only and should not be treated as a precedent