Hints & tips for drafting and amending undertakings

• As above, you can only undertake to do what is in your control. Therefore, in relation to the actions of others, it is better 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 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."
• If you are proposing amendments to another firm's undertaking, ensure that the amendments are clearly accepted. A marked-up draft is not evidence of agreement.
• Where possible, specify a clear trigger event for performance of the undertaking. Ambiguity as to when an obligation arises is a common source of disputes.
• 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.
• Do not give any confirmation or undertaking to a lender, its solicitor, or any third party which is outside your own professional knowledge, responsibility, or control. Examples of unacceptable requests include, but are not limited to:
• certifying a borrower's identity to the lender (you can say you've seen an original of a passport and are satisfied that the photo closely resembles the person you've met),
• confirming the purpose of a loan (you can say what the client has told you the purpose is),
• confirming lack of coercion (you can say you are not aware of any),
• confirming the borrower can repay the loan, confirming who lives at the property,
• confirming the validity or enforceability of the lender's charge after completion.

These are not standard confirmations and you cannot give these, they are beyond your knowledge and control. Contact undertakings@keystonelaw.co.uk for help. Do consider letting your client know that protracted time dealing with undertakings is hourly rate work and not part of the fixed fee. We keep a record of firms who insist on receiving unacceptable undertakings, so report this to us. If you want to know if the firm on the other side is on this list, simply contact undertakings@keystonelaw.co.uk or include the firm name in a conflict search.

• Before giving any undertaking, ask yourself: "What is the worst-case scenario if I am personally required to perform this undertaking?" If that outcome would be unacceptable, do not give the undertaking in its current form.
• If you receive an undertaking from another party, do not proceed on the basis that it is enforceable simply because it is described as an undertaking. Consider who has given it, their authority to bind the relevant entity, how it would be enforced if breached, and whether the recipient has sufficient assets or insurance to meet the obligation. Keep in mind that, following the Supreme Court's decision in Harcus Sinclair LLP v Your Lawyers Ltd [2021], professional undertakings given by corporate entities, including LLPs and incorporated legal practices, cannot be enforced through the court's summary jurisdiction because such entities are not "officers of the court". This does not mean that such undertakings are unenforceable. They may still be enforceable by other legal means, including contractual claims where the circumstances permit, and the giving entity remains subject to the SRA's regulatory and disciplinary jurisdiction. When relying on an undertaking from an incorporated practice, you should therefore consider not only its regulatory status but also its financial standing, insurance arrangements and the practical means of enforcement should it fail to comply. For further details, see the SRA guidance on "Undertakings given by, or on behalf of, incorporated practices".