The claimant sought to enforce against the defendant’s solicitors an undertaking given by them. The claimant contracted to buy property subject to a charge in favour of the third defendant bank securing loans over other property. The bank gave no promise to discharge any property for less than repayment of all sums due to it. After completion, the seller’s solicitors having undertaken to discharge the charges, paid the money instead to their client who paid it into a different bank. The solicitors said that the bank should ask for no more than they would have accepted.
Held: There was no evidence that the bank had accepted any obligation of the kind asserted. The arrangement had been made expecting sales of constructed houses, and these had been sales of plots at lower values. No consent had been arranged with the bank before the exchanges. The bank’s enforcement of the undertaking was not to be restrained in the way suggested.
Mann J said: ‘The vendor’s solicitor is in a much better position to know what has to be done in order to procure the release of charges than is the purchaser, and the purchaser is entitled to believe and assume that the solicitor will do what is necessary. It would undermine the sensible practices and procedures of conveyancing if solicitors were entitled to delay compliance with their undertakings while they sorted out some dispute with the mortgagee, save perhaps in exceptional circumstances. The solicitor should have taken steps to make sure that there could be no such dispute. If he gives an undertaking without having done so, he cannot sensibly complain if the Court requires him to take steps which he would otherwise regard as excessive in order to achieve compliance with the undertaking and to give the purchaser the title which the purchaser was legitimately entitled to expect.’
Mann J
[2009] EWHC 2647 (Ch)
Bailii
England and Wales
Citing:
Cited – In Re A Solicitor 1966
A solicitor (Mr Lincoln) had given undertakings to hold certain leases to the order of the Bank, but did not have them. The court considered enforcement of the undertakings. Pennycuick J said: ‘Prima facie, it is open to Mr Lincoln to obtain that . .
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 . .
Cited – Angel Solicitors v Jenkins O’Dowd and Barth ChD 19-Jan-2009
Actions were brought to enforce undertakings given by solicitors to redeem mortgages on the sale of properties, and as to redemption figures provided by lenders who then refused to release the properties. The solicitors had replied to standard form . .
Cited – Clarke v Lucas LLP 2009
Following the completion of the sale of a property, the mortgagee was demanding payment of all sums due, which was approximately double the value of the plot in respect of which the defendant solicitors’ undertaking had been given. The court was . .
Cited – L Morgan and Co v Jenkins O’Dowd and Barth 19-Nov-2008
Blackburne J had previously made an order compelling the Defendants to perform undertakings to redeem mortgages over three residential flats which they had given in the course of acting as solicitors for the sellers of those flats. A dispute had . .
Lists of cited by and citing cases may be incomplete.
Legal Professions
Updated: 01 November 2021; Ref: scu.377241