UniSZA

Faculty: FUHA
Programme Name: Bachelor of Law with Honours
Course Name: Ethics
Course Code: LLB 40603
Lecturer: Mdm Ooi Chooi Gaik
1
Topic:
Undertakings, Enforcements of Undertakings and Summary
Jurisdiction of Courts Over Solicitors

2
1. Solicitor’s Undertakings

i. Undertakings
◦ Undertaking is a promise to do a particular act. It is necessarily given pending the outcome of a
particular event.

ii. Nature of an undertaking

◦ It is usually accepted by another solicitor, the courts as well as third parties. An advocate and solicitor
who gives an undertaking must ensure that the undertaking is fulfilled. If an advocate and solicitor fails
to fulfill the terms of an undertaking it would constitute a professional misconduct and disciplinary
action may be taken against the solicitor. Further, the courts too, have the power to enforce an
undertaking given by a solicitor to the courts.

3
1. Solicitor’s Undertakings cont.

Oriental Bank Bhd v Abdul Razak Rouse [1986]

◦ The court held that the word ‘undertaking’ need not be used at all. The court held that before an
undertaking can be enforceable against the defendant it must be clear and unequivocal but the word
‘undertake’ need not even be used.
United Mining and Finance Corporation v Bercher [1910]
◦ The undertaking must be given by the solicitor in the capacity as a solicitor. His Lordship Hamilton J
held that a court has jurisdiction to exercise its summary procedure to compel a solicitor to carry out his
undertaking as long as it is given in the capacity as a solicitor. It does not matter whether the applicant is
a client of the solicitor. When a solicitor, in the course of business which he is conducting for clients with
third parties in the way of his profession, gives an undertaking to those third parties incidental to those
negotiations, that undertaking is one undertaking the office of stakeholder or guaranteeing the payment
of money.

4
1. Solicitor’s Undertakings cont.

Seah Choon Chye v Saraswathy Devi [1971]

◦ ‘The general principles as regards an undertaking of this nature is that it must be given by a solicitor
personally and not merely as an agent on behalf of his client. It must be given in his professional capacity
as a solicitor and not as individual.’
T Damodaran v Choe Kuan Him [1979]
◦ The court held that the terms of the solicitors’ undertaking were clear, unqualified and unequivocal and
there was no reason why the appellant should not recover the balance of the purchase price.
◦ In this case a solicitor had given an undertaking to confirm that the balance of the purchase money had
been deposited with his firm and that this could be paid to the vendors upon the transfer of the land being
registered. The transfer was duly registered but in the meantime a third person had obtained a lis pendens
and this had been registered against the land. The respondent indicated that he would pay the money into
court but the appellant, the vendor, applied for the payment of the money to him.
◦ The court held that the terms of the solicitors’ undertaking were clear, unqualified and unequivocal and
there was no reason why the appellant should not recover the balance of the purchase price. 5
2. Enforcement of Undertaking

◦ When an advocate and solicitor gives an undertaking and fails to fulfill the terms of the undertaking, the
courts may summarily enforce the terms of the undertaking upon application to the court if the
undertaking is clear, unambiguous and unequivocal and it was given in the capacity of a solicitor.
◦ The court’s jurisdiction is based upon the court’s right to enquire its officers to observe a high standard of
conduct; it is immaterial that no misconduct on the part of the solicitor is suggested.

6
2. Enforcement of Undertaking cont.

◦ The solicitor cannot, therefore, defend himself on the ground that:

a) His undertaking is not enforceable as a contract against him;
b) The application has been delayed;
c) The undertaking given under a mistaken belief of having authority to fulfil it be set aside nor can the
solicitor withdraw from his undertaking save by consent, but an undertaking given by mistake in too
wide term will not be enforced insofar as it was mistakenly given.
◦ The undertaking given by the solicitor will be enforced against the solicitor even though, after it is give,
the client dies or instructs the solicitor not to perform it, or changes his solicitor. If performance of the
undertaking has been waived the undertaking will not be enforced afterwards.

7
3. Summary Jurisdiction

◦ The court has summary jurisdiction over the advocates and solicitors as they are the officers of the court.
Summary jurisdiction is exercised by the court when the advocates and solicitors commit professional
misconduct.
◦ They are subject to the discipline of the court. The discipline is exercisable in two ways; either by
punishing the advocate and solicitor or by making them pay compensation. In so far as it is punitive, the
court could strike a solicitor off the roll of the court or suspend him. In so far as it is compensatory, the
court could order him to pay the costs, sometimes the costs of his own client, sometimes those of the
opposite party and sometimes it may be both.

8
3. Summary Jurisdiction cont.

Geoffrey Silver & Drake v Thomas Anthony Baines [1971]

◦ Lord Denning held that the court has since time immemorial exercised its summary jurisdiction over
solicitors. They are officers of the court and are answerable to court for anything goes wrong in the
execution of their office.
◦ The summary jurisdiction means, however, that the solicitor is deprived of the advantages which
ordinarily avails a defendant on trial. There are no pleadings, no discovery and no oral evidence save by
leave. The jurisdiction should therefore, only be exercised in a clear case.

9
3. Summary Jurisdiction cont.

Udall v Capri Lighting Ltd [1988]

◦ Failure to carry out the terms of the undertaking would amount to professional misconduct. In other
words the court can punish the solicitor for breach of undertaking.
◦ The court held that it has jurisdiction to enforce the undertaking by summary jurisdiction the court has a
duty to supervise conduct of solicitors.
◦ Further, where there is a breach of undertaking it is prima facie to be considered as a misconduct on the
part of the solicitor. If this misconduct causes loss, the court has power to order the solicitor to make
good the loss. Neither the fact that the undertaking was to be performed by third party or solicitor, may
preclude the court from exercising its summary jurisdiction. If appropriate the court would ask solicitors
to perform the undertaking but if the undertaking is impossible to be performed the solicitor may have to
bear the cost personally.

10
3. Summary Jurisdiction cont.

Tunku Ismail bin Tunku Md Jewa & Anor

◦ The court held that a court could exercise summary jurisdiction over solicitors and it extended so far that
if a solicitor gave an undertaking in his capacity as a solicitor, the court may order him to perform his
undertaking straight away. This jurisdiction should however be exercised in a clear case. On the facts of
this case, the court held that the undertaking given by the legal assistant was valid and binding.
Tommy Thomas v Peguam Negara, Malaysia & Other Appeals [2003]
◦ The court invoked it summary jurisdiction to punish solicitor who had earlier through his counsel, as part
of a settlement process, given an undertaking in open court that he will not repeat or publish the libelous
words against certain individuals and corporations. However, on later in the evening on the same day, in
a press statement the appellant had started that the settlement was brokered by the insurers and the matter
was settled against him express objections. By a majority of decision, the COA held that summary
remedy is available in cases of breached of undertakings to the court. By this it meant that the court can
invoke its summary jurisdiction to punish a solicitor.
11
3. Summary Jurisdiction cont.

Brendan v Spiro [1937]

◦ The court has power to exercise its summary jurisdiction in punishing the solicitors whether or not the
solicitor is present in court. Therefore, if the professional misconduct is disclosed during proceedings, the
court may nevertheless proceed to invoke its summary jurisdiction. In this case, it was alleged that two of
the solicitors in therein action had been guilty of misconduct. It was contended that the judge has no
jurisdiction over the two solicitors on the record. The court held that the court’s summary jurisdiction
over a solicitor does not cease merely because he ceases to be on the record.

12
3. Summary Jurisdiction cont.

Madam Packiam Ramalingam v Badan Peguam Malaysia [2000]

◦ Whether out of court settlement came within parameters of terms of undertaking. The plaintiff deposited the
original issue document of title of the property with her solicitor Mr Meredith Coelho who later absconded.
The property had been transferred to Yen Seng Credit and Leasing Sdn Bhd who later transferred it to Siow
Moon Seng. – Messrs Skrine & Co filed an action in the High Court of Kuala Lumpur vide Civil Suit No S5-
22-224-89 on behalf of the plaintiff and the civil suit cited Yen Seng Credit and Leasing Sdn Bhd, Siow
Moon Seng and the Registrar of Titles, Selangor Darul Ehsan as the defendants.
◦ As the plight of the plaintiff came to the attention of the defendant, the defendant agreed to pay the plaintiff a
sum of RM22,396.65 (‘the sum’) out of its compensation fund subject to the outcome of Civil Suit No S5-
22-224-89. By a letter dated 2 June 1989, Messrs Skrine & Co requested the defendant to pay the
compensation due to the plaintiff with the undertaking that if the plaintiff is successful in the case field,
Messrs Skrine & Co will ensure that the order obtained includes an order for payment of an equivalent sum
back to the defendant from any money recovered from the suit. The defendant forwarded the sum. (cont. next
page)
13
3. Summary Jurisdiction cont.

(cont.) Civil Suit No S5-22-224-89 did not proceed to trial. The matter was settled out of court on 23
October 1996 whereby the plaintiff obtained a sum of RM150,000. The defendant sought for a refund of
the sum inclusive of interest. The plaintiff filed an originating summons to declare that on a true and proper
construction of the undertaking given by the plaintiff’s solicitors, the defendant is not entitled to be paid
the sum. The issue of interest of the sum also arose for the court’s consideration.
◦ Held, dismissing the application:
Messrs Skrine & Co must abide by their undertaking to the defendant. To say that the settlement out of
court was outside the purview of the undertaking would prevent the course of justice. The undertaking was
very clear in its terms. There was no necessity for adjudication and there was no need to proceed to full
trial in order to be successful in the plaintiffs’ endeavour in regard to Civil Suit No S5-22-224-89. in
drafting the settlement out of court, there was no attempt to incorporate the requirement for payment of an
equivalent sum back to the Malaysian Bar so that the plaintiff will not (cont. next page)

14
3. Summary Jurisdiction cont.

(cont.) obtain double recovery (see p 166E-F). Section 80(13) of the Legal Profession Act 1976 states, inter
alia, that the income derived from the compensation fund shall be exempted from income and all other
taxes and there was thus no necessity to demand interest from M/s Skrine & Co (see pp 166I-167A).

15
3. Summary Jurisdiction cont.

Bank Kerjasama Rakyat Malaysia Bhd v Tetuan Haranay, Rono & Anikah & Ors [1999]
◦ Whether extrinsic evidence must be ignored in construing terms of undertaking.
◦ The defendants had, in their capacity as solicitors for one Ahmad Padli, written to the plaintiff,
requesting the plaintiff not to proceed further with the auction of the goods of Ahmad Padli and gave to
the plaintiff an undertaking to pay the sum of RM26,000 within six months from the date of the letter.
◦ However, the defendants had failed to honour their undertaking. Hence this application. The defendants
opposed this application and in doing so filed an affidavit (‘Abdul Roni’s affidavit’) in opposition.
Paragraph 6 of Abdul Roni’s affidavit explained the circumstances in which the undertaking was given.

16
3. Summary Jurisdiction cont.

◦ Based on Abdul Roni’s affidavit, counsel for the defendants raised two grounds to oppose the plaintiff’s
application, namely that:
a) The undertaking was in fact a conditional one as it was given upon an agreement or assurance of the
plaintiff’s credit officer that it would not be enforced until Ahmad Padli received his commission from
sale of a piece of land; and
b) The allegation in para 6 of Abdul Roni’s affidavit had not been denied, refund or replied to by the
plaintiff by reason whereof the plaintiff must be taken as accepting the allegation and if so, there is
clearly a dispute as to the enforceability of the undertaking.
◦ Counsel for the plaintiff, in reply to the first ground, submitted that the court should not look outside the
document or import extrinsic evidence to contradict the very clear and unambiguous terms of the
undertaking.

17
3. Summary Jurisdiction cont.

◦ Held, allowing the application:

The defendants’ attempt was contrary to the provisions of ss 91 and 92 of the Evidence Act 1950, whereby
s91 excludes extrinsic evidence from being adduced in proof of the terms of a document except the
document itself and s 92 prohibits the admission of extrinsic evidence by the parties to contradict the terms
of a document. In construing the terms of the undertaking, evidence of the alleged ‘agreement’ with the
credit officer of the plaintiff must be ignored as such evidence was to be excluded and remained
inadmissible under the provisions of ss 91 and 92 of the Evidence Act 1950. it followed that the
undertaking was unconditional in terms.
◦ Since extrinsic evidence regarding the ‘agreement’ of the credit officer was to be excluded and was
inadmissible, the averments in para 6 of Abdul Roni’s affidavit could not be relied upon by the
defendants as raising any dispute (see pp 203H-I and 204B-C); United Malayan Banking Corp Bhd v
Tan Liang Kong & Ors [1990] 1 MLJ 280 followed.

18
3. Summary Jurisdiction cont.

Oriental Bank Bhd v Adbul Razak Rouse [1986]

◦ Whether the defendant in law did give an undertaking in his professional capacity and if he did was there
breach of that undertaking?
◦ The plaintiffs applied, inter alia, for an order that the defendant, an advocate and solicitor, do within 14 days
register a charge for the sum of M$5 million in favour of the plaintiffs against two pieces of land in Kuala
Lumpur. The plaintiffs granted a loan of M$5 million to one Datu Haji Abdul Salam (the barrower) on or
about February 2, 1982. The loan was to be secured by charges against Sabah and Kuala Lumpur lands.
◦ The defendant who acted as solicitor for the plaintiffs was instructed by the plaintiffs to prepare and register
the said charges. The charge against the Sabah lands but not the Kuala Lumpur lands was duly registered. On
April 30 1982, the defendant wrote a letter to the plaintiffs “to request for your kind approval to release a
further sum of Malaysian Ringgit Six Hundred Thousand Only (M$600,000) to enable us to redeem the
charge on Dashrun Hotel Sdn. Bhd. Properties held by Bank Bumiputera Malaysia Bhd. and to recharge the
same in favour of your bank and also to settle some of (cont. next page)

19
3. Summary Jurisdiction cont.

(cont.) the other creditors as stated in our client’s application”.

◦ On May 3, 1982 in response to the defendant’s request, the plaintiffs duly credited the $600,000
requested into the defendant’s firm account. Despite this and the five reminders sent by the plaintiffs, the
defendant failed to present the charge in respect of the Kuala Lumpur lands for registration.
◦ The defendant, who was also acting for the borrower, said, inter alia, that since he was acting for both
parties he had the duty to protect both parties’ interests in this matter. The defendant further said that
since the plaintiffs had only released M$3,837,500.00 out of the M$5 million loan with a security valued
at $6.3 million (in Sabah lands) and whereas and on the other hand the borrower had to meet contractors’
claims, he felt it was fair not to charge the Kuala Lumpur lands so that the borrower could use it to raise
further funds from another bank.
◦ Held; allowing the plaintiffs’ application: the court was satisfied on the balance of probabilities that the
defendant breached the undertaking he gave to the plaintiffs in his professional capacity and it applied
the case of T Damodaran v Choe Kuan Him [1979] 2 MLJ 267, PC.
20
3. Summary Jurisdiction cont.

Re A Solicitor and Advocate [1932]

◦ Where, on a change of Solicitors, the new Solicitor gave a written undertaking to pay the costs claimed
to be due from the client to the former Solicitors, failure to honour the undertaking amounted to
professional misconduct and a contempt of Court.
◦ That the defaulter had a cross complaint against the former Solicitors however genuine it might be would
not affect the breach of the undertaking.
◦ The personal undertaking of the Solicitor is sufficient to enable the Court to exercise its summary
jurisdiction to compel him to carry out the undertaking on the application of the person to whom it is
given.

21
3. Summary Jurisdiction cont.
Re David Marshall; Law Society of Singapore v David Saul Marshall [1972]
◦ The respondent, a senior advocate and solicitor of the Supreme Court, acted for the managing editor
and three other employees of the Nanyang Siang Pau, a Chinese language daily newspaper, in their
applications for habeas corpus to the High Court.
◦ The affidavits in support of the habeas corpus applications were affirmed by the four applicants and
these were filed in the registry of the Supreme Court. The habeas corpus applications were fixed for
hearing on May 26, 1971. At the hearing, these applications were adjourned to June 7, 1971. Both
the Attorney-General who appeared for the Government and the respondent were requested to see
the Chief Justice in his chambers. Whilst in the Chief Justice’s chambers, the Attorney-General
intending to prevent publication of the affidavits before the hearing fixed on June 7, 1971, drew the
attention of the Chief Justice to the fact that affidavits and their contents had a habit of being leaked
out to the press and the public at large before the hearing. The respondent thereupon volunteered an
oral undertaking in the following terms:
“The Attorney-General need have no anxiety about our office because we never give any pleadings to the press before trial and I
can assure you that neither I nor my office have given these affidavits to them for publication.” 22
3. Summary Jurisdiction cont.

◦ The respondent, however, before June 7, 1971 sent: (a) five sets of the affidavits together with
explanatory documents by registered post to the Secretary-General of Amnesty International; (b) two sets
of the affidavits to Sir Elwyn Jones Q.C.; (c) one set of the affidavits to Mr. Harold Ebens, the editor of
the London Sunday Times.
◦ All the affidavits sent to the persons above (except one) had the headings deleted and the words
“Instructions to Counsel” substituted. The jurats of these affidavits were also deleted.

23
3. Summary Jurisdiction cont.

◦ On June 4, 1971, the Chief Justice ordered certain portions of these affidavits to be struck out. The
disciplinary committee on the above facts held that the respondent’s undertaking given to the Attorney-
General in the presence of the Chief Justice, was a general undertaking not to release the affidavits to the
press. This undertaking was given by the respondent in his professional capacity, and the respondent had,
therefore, committed a breach of the undertaking in sending the contents of the affidavits to the persons
mentioned above. On reference to the court, held:
a) It was clear beyond any real doubt that the respondent meant the undertaking to be understood by the
Attorney-General that neither the respondent nor his office would be a party to the contents of the
affidavits being made available to the “press’ using the expression “press” in its generally accepted
connotation without any qualification whatsoever;
b) It was plain from the disciplinary committee’s report and the facts that the respondent acted with
premeditation and deliberation and the inference can clearly be drawn that he must have foreseen that one
of the consequences of his making available to the press the contents of the affidavits was the likelihood
of the contents being published in the news media;
24
3. Summary Jurisdiction cont.

c) The test of what constitutes “grossly improper conduct in the discharge of his professional duties” has
been laid down in many cases to mean conduct which is dishonourable to him as a man and
dishonourable in his profession. Applying that test and taking into consideration the fact that the
respondent was a leading member of the legal profession in Singapore, that the undertaking was given
to the Attorney-General in the presence of the Chief Justice, that the matter had aroused considerable
public interest and the interest of journalists and pressman all over the world, and the fact that the legal
profession here must be zealous and constantly endeavour to uphold its standing in the community by
strict adherence to the ethics and etiquette accepted as binding by the profession on its members; the
respondent should be suspended from practice for a period of six months, the period of suspension to
commence from the date of the order.

25
4. Defences Available Against Enforcement of
Undertaking
i. Undertaking Given by Mistake
◦ It must be shown that the solicitor was not aware of the extent of the undertaking and it was given by
mistake.

Mullins v Howell [1879]

◦ Jessel M.R. stated that the Court has a general control over orders made on interlocutory applications,
and in that case a unilateral mistake was considered sufficient to give the Court jurisdiction to discharge
an interlocutory order made by consent, though such a mistake is not sufficient to invalidate an
agreement. The mistake was that ‘the undertaking went further than he intended or was aware of, in as
much as he never intended to remove the projecting buttresses…’

26
4. Defences Available Against Enforcement of
Undertaking cont.
Tunku Ismail bin Tunku Md Jewa & Anor v Tetuan Hisham, Sobri & Kadir [1989]
◦ The plaintiffs as administrators of an estate sold to the purchasers a piece of land for $1,038,228. the
defendants were solicitors acting for purchasers and the bank.
◦ On 16 January 1985, the defendants wrote to the plaintiffs’ solicitors, undertaking to pay $450,000 and
provide a continuing and irrevocable banker’s guarantee for $435,305.20 upon the plaintiffs’ solicitors
providing the necessary documents and registration of the transfer. The documents were forwarded and
the land was duly registered in the purchaser’s name on 29 January 1985. The sum of $450,000 was paid
but despite requests the defendants failed to furnish the guarantee.
◦ The plaintiffs alleged breach of the undertaking and applied to enforce it. The defendants denied liability
on several grounds; firstly, that the undertaking was ambiguous in that the terms and conditions of the
guarantee were not stated; secondly, that the legal assistant who carried on the day-to-day business of the
branch of the firm in Alor Setar had no actual or ostensible authority to bind the principals; thirdly, the
undertaking was given by mistake in that the legal (cont. next page)
27
4. Defences Available Against Enforcement of
Undertaking cont.
(cont.) assistant was mistaken into believing that the bank was going to issue the guarantee; fourthly, that
the undertaking became impossible to comply; fifthly, that the undertaking was a matter which should not
be dealt with summarily as there were issues which should go for trial.
◦ Held, allowing the plaintiff’s application:
a) The defendants had wanted to register the memorandum of transfer and charge before paying the full
price to the plaintiffs because the bank would not release the loan until the charge was registered. To
achieve this, the defendants had to give the necessary usual undertakings which was elementary
conveyancing practice under the Torrens system. The plaintiffs’ solicitors had in their letter acceded to
the defendants’ request for the necessary documents and clearly stated that the guarantee was to be
made in favour of the plaintiffs and payable upon delivery of vacant possession. Any banker’s
guarantee would be sufficient. On the facts, the defendants’ undertaking was clear, unqualified and
unequivocal.

28
4. Defences Available Against Enforcement of
Undertaking cont.
b) The onus of providing ostensible authority rested with the plaintiffs. There can only be ostensible
authority to give an undertaking of a kind which was in the ordinary course of a solicitor’s business. It
was crystal clear that the undertaking in question was within the ordinary course of a solicitors’ business
that no further proof is required. The undertaking was necessary for the completion of the documentation
and registration of the charge which was undertaken by the defendants as solicitors for the bank.
c) An undertaking would not be enforced if the court is satisfied that the mistake went further than what a
solicitor intended or was aware of. In the present case, the solicitor knew the nature and effect of the
undertaking and was merely taking risks in giving the undertaking when the guarantee had not come into
his hands.
d) The undertaking had not become impossible to perform as the guarantee could be obtained from any
bank and expressed to be payable upon delivery of vacant possession.
e) A court could exercise summary jurisdiction over solicitors and it extended so far that if a solicitor gave
an undertaking in his capacity as a solicitor, the court may order him to perform his undertaking
straightaway. This jurisdiction should however be exercised in a clear case.
29
5. Undertaking Impossible to Perform

Re A Solicitor [1966]
◦ The court held that the lease i.e. the subject matter of undertaking, was already forfeited.
Tunku Ismail bin Tunku Md Jewa & Anor v Tetuan Hisham, Sobri & Kadir [1989]
◦ The plaintiffs as administrators of an estate sold to the purchasers a piece of land for $1,038,228. the
defendants were solicitors acting for purchasers and the bank.
◦ On 16 January 1985, the defendants wrote to the plaintiffs’ solicitors, undertaking to pay $450,000 and
provide a continuing and irrevocable banker’s guarantee for $435,305.20 upon the plaintiffs’ solicitors
providing the necessary documents and registration of the transfer. The documents were forwarded and
the land was duly registered in the purchaser’s name on 29 January 1985. The sum of $450,000 was paid
but despite requests the defendants failed to furnish the guarantee.

30
5. Undertaking Impossible to Perform cont.

◦ The plaintiffs alleged breach of the undertaking and applied to enforce it. The defendants denied liability
on several grounds; firstly, that the undertaking was ambiguous in that the terms and conditions of the
guarantee were not stated; secondly, that the legal assistant who carried on the day-to-day business of the
branch of the firm in Alor Setar had no actual or ostensible authority to bind the principals; thirdly, the
undertaking was given by mistake in that the legal assistant was mistaken into believing that the bank
was going to issue the guarantee; fourthly, that the undertaking became impossible to comply; fifthly,
that the undertaking was a matter which should not be dealt with summarily as there were issues which
should go for trial.

31
5. Undertaking Impossible to Perform cont.

◦ Held, allowing the plaintiff’s application:

a) The defendants had wanted to register the memorandum of transfer and charge before paying the full
price to the plaintiffs because the bank would not release the loan until the charge was registered. To
achieve this, the defendants had to give the necessary usual undertakings which was elementary
conveyancing practice under the Torrens system. The plaintiffs’ solicitors had in their letter acceded to
the defendants’ request for the necessary documents and clearly stated that the guarantee was to be
made in favour of the plaintiffs and payable upon delivery of vacant possession. Any banker’s
guarantee would be sufficient. On the facts, the defendants’ undertaking was clear, unqualified and
unequivocal.
b) The onus of providing ostensible authority rested with the plaintiffs. There can only be ostensible
authority to give an undertaking of a kind which was in the ordinary course of a solicitor’s business. It
was crystal clear that the undertaking in question was within the ordinary course of a solicitors’
business that no further proof is required. The undertaking was necessary for the completion of the
documentation and registration of the charge which was undertaken by the defendants as solicitors for
the bank. 32
5. Undertaking Impossible to Perform cont.

c) An undertaking would not be enforced if the court is satisfied that the mistake went further than what a
solicitor intended or was aware of. In the present case, the solicitor knew the nature and effect of the
undertaking and was merely taking risks in giving the undertaking when the guarantee had not come
into his hands.
d) The undertaking had not become impossible to perform as the guarantee could be obtained from any
bank and expressed to be payable upon delivery of vacant possession.
e) A court could exercise summary jurisdiction over solicitors and it extended so far that if a solicitor gave
an undertaking in his capacity as a solicitor, the court may order him to perform his undertaking
straightaway. This jurisdiction should however be exercised in a clear case.

33