The defendant solicitor applied that enforcement of an order made that he should comply with his undertakings given in the course of a conveyancing transaction for the discharge of mortgages on the sale of properties, should be delayed until the court had established what sums were required to discharge them. The charges were all monies charges.
Held: There was no basis upon which it was possible to argue that the bank should be required to accept a sum which would have been acceptable had the appropriate request been made at the time of the conveyancing transaction, and ‘Accordingly, the bank is entitled to deal with the matter as it thinks fit in the light of the situation as it now is. I cannot see as a matter of general principle that there is any possible basis for arguing that the bank should be required to accept the sum which it would have accepted had the appropriate request been made in 2006 . . the defendant firm is no doubt backed by its indemnity insurers and all that is required is a cheque to be written for the sum in question. There is no impossibility there. The only problem from their point of view is that it now costs rather more to perform the undertakings than they think it would have cost had they dealt with them as they should have done, two years ago. However, that is their misfortune and is not a surprising result of the breach of undertaking in the first place.’
However, obiter: ‘The only rider I would add is that there is a liberty to apply in the order and if the bank were now to change its stance and to require terms which appear wholly unreasonable or to go beyond the scope of anything which could possibly have been contemplated when the undertaking was originally given, there may then, and I say no more than that, there may be a case for applying to the court to discharge the existing order and replace it with an inquiry as to damages suffered by the purchasers.’
Judges:
Henderson J
Citations:
[2008] EWHC 3411 (Ch)
Links:
Jurisdiction:
England and Wales
Citing:
Cited – In re a Solicitor 1966
The solicitor had given an undertaking to hold five leases to the order of a bank. They were not in his possession and one was subject to a prior mortgage. Complaint was made to oblige him to comply with his undertaking.
Held: In the absence . .
Cited – Udall v Capri Lighting Ltd (in liquidation) CA 1987
A claim was made for the price of goods sold and delivered. The defendant’s solicitor gave an oral undertaking to his counterpart to procure the execution by directors of his client company of charges over their homes in return for an adjournment . .
Lists of cited by and citing cases may be incomplete.
Legal Professions
Updated: 25 September 2022; Ref: scu.406171
