Hints & tips for drafting and amending undertakings
As above, you can only undertake to do what is in your control. So, in relation to the actions of others, it is better therefore to undertake to "request" or "require" etc. rather than "ensure" or "obtain" that a third party takes an action.
When undertaking to act on a completion for a seller or drawdown for a borrower, the undertaking should be conditional on receipt of funds.
Where reliant on external systems (e.g. HMRC/Companies House), insert appropriate caveats "subject to the availability of HMRC's systems".
The same applies with banks, so we instead of "pay" say "instruct our bank to pay".
Beware words implying matters beyond our control e.g. we can "remit", "send" and "notify" but we can't (without doing so ourselves physically) "give", "provide", or "deliver".
Be specific: if sending something (money, docs etc.), say by what medium, to where and when. If receiving, the same broadly applies.
Where undertaking to be responsible for fees; make it conditional "on receipt of a properly prepared invoice".
Add in boilerplate: "We do not intend any part of this letter to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999. Nothing in this undertaking shall prevent us from complying with law, regulation or an order of a competent court."
Include details of the mechanism of discharge of the undertaking: "The undertaking[s] given in this letter will be fully discharged by our compliance with [it/them]. Notwithstanding this, we would be grateful if you would contact me to confirm when [you have/name of third party has] received payment and confirm in writing for our records that [this undertaking has/these undertakings have] been duly discharged."
Watch out for time limits, you should use phrases like "following receipt", rather than set a number of days in which some action must be performed. This is because things can take longer than you think. For example, if we are to send monies on within one day of receipt, we might struggle to identify the monies if they are sent piecemeal so we can't recognise the amount, the sender and/or any reference provided with the transfer which may delay things.
When you give an undertaking to pay another solicitor's costs, the undertaking will be discharged if the matter does not proceed unless, in the body of the undertaking, or in a separate agreement, there is an express provision that the costs are payable in any event.
You will be held personally liable to honour an undertaking given 'on behalf of' anyone (other than Keystone of course!) unless such liability is clearly disclaimed in the undertaking itself.
If you give an undertaking that is dependent upon the happening of a future event, you must notify the recipient immediately if it becomes clear that the event will not occur.
Don't undertake to enforce an undertaking of another firm. At worst it might be impossible and at best will take up chargeable time that we run the risk of not being paid for by the client. We can agree that we will require the other firm to perform its undertaking. Further, an operative provision can be added to the operative documents to require the client to instruct its solicitors (i.e. us) and to put them (i.e. us) in funds in order to enforce certain undertakings.