Enforcing Solicitors Undertakings Against an LLP: The Gap Harcus Sinclair Confirmed

Most undertakings in England and Wales are now given by LLPs and limited companies. Almost none of them can be enforced by the court. That is the practical state of the law after the Supreme Court decision in Harcus Sinclair, and it is still true five years on.

One correction to how this is usually reported, because it matters. The Supreme Court did not change the law here. It expressly declined to decide whether the supervisory jurisdiction reaches incorporated firms, so everything it said on that question is obiter. The Court of Appeal had reached the same view obiter in Assaubayev back in 2014, and both courts below in Harcus Sinclair considered themselves bound by it. The judgment itself refers to the lacuna that this judgment has confirmed. The SRA uses the same word. Confirmed, not created.

What the court decided, and what it did not

Harcus Sinclair LLP and another v Your Lawyers Ltd [2021] UKSC 32 was decided on 23 July 2021. There are four holdings, and the restraint of trade point and the undertakings point run in opposite directions, so they need separating.

On the contract, Your Lawyers won: the six-year non-compete was a restraint of trade but a reasonable one, and so enforceable. That reversed the Court of Appeal and has nothing to do with undertakings law.

On whether the clause was a solicitors undertaking at all, the Court held it was not. The mere fact that an undertaking is given by a solicitor does not make it a solicitors undertaking; it must be given in the capacity as a solicitor, because it is the fact that the undertaking is given professionally that engages the supervisory jurisdiction. The Court offered a two-question test worth keeping: first, whether what the undertaking requires is something solicitors regularly do or refrain from doing as part of ordinary professional practice; second, whether the cause or matter it relates to involves the sort of work solicitors regularly carry out. Both answered yes, and it is likely to be a solicitors undertaking.

The LLP question: open in principle, closed in practice

The Court held that it was open to it to develop the inherent jurisdiction, or purposively to interpret section 50 of the Solicitors Act 1974, so as to treat a solicitors undertaking as extending to one given by an incorporated law firm. It then declined to do so, with considerable reluctance, for three reasons: its view would be obiter and bind nobody; a properly informed decision needed submissions from the Law Society, the SRA and the Council of Licensed Conveyancers; and the question was probably better dealt with by legislation, because of the availability of procedures for consultation which the court lacks.

The operative consequence is stated at paragraph 144. As matters stand the undertaking would not have been enforceable against the LLP even if it had been a solicitors undertaking, because the LLP is not an officer of the court. And the individual solicitor was not liable either, for the simple reason that he did not give it in his personal capacity but only on behalf of the firm.

The clearest illustration is the Court own. An undertaking given by Smith and Jones LLP on a Friday would not be buttressed by the court power of summary enforcement, whereas an identical undertaking given by the Smith and Jones partnership on the previous Monday, before incorporation on the Wednesday, would be. Same solicitors, same practice, different answer.

The reason is separate legal personality, and the judgment puts the consequence for the signing solicitor in five words. Where an undertaking is given on behalf of a partnership, the partner giving it is bound because he is a partner. Where it is given on behalf of an LLP it binds only the LLP, and the solicitor who gave the undertaking drops out of the picture.

One question was expressly left open: whether a solicitor might attract the supervisory jurisdiction by actively procuring non-compliance by an incorporated firm with an undertaking that would have been a solicitors undertaking if given personally. No case has decided it since.

Why summary enforcement was worth having

The supervisory jurisdiction is an aspect of the inherent jurisdiction of the court over solicitors as officers of the court, with origins the judgment traces to medieval times, preserved through the Judicature Acts and now by section 50 of the Solicitors Act 1974. The Supreme Court was clear that section 50 does not freeze the jurisdiction in statute; it recognises a continuing inherent jurisdiction.

Its character is unusual. It is exercised, in the words of Nicholls LJ in John Fox v Bannister King and Rigbeys, not for the purpose of enforcing legal rights but for the purpose of enforcing honourable conduct on the part of the court own officers. Three practical consequences follow, and all three are lost when the giver is an LLP.

• No contract is needed. An undertaking will often be contractual but need not be, and there is no requirement of consideration or of legal enforceability. Most undertakings are given without either.
• No action is needed. The jurisdiction can be invoked on an application, without a separate action, and has often been exercised without pleadings, disclosure or oral evidence.
• It attaches to status, not function. A barrister is not subject to it. A solicitor is, even for conveyancing work with no connection to the court process at all, purely because of the difference in status.

Remedies are a compliance order backed by contempt, and where performance has become impossible, compensation. The compensatory limb comes from Udall v Capri Lighting Ltd [1988] QB 907 rather than from Harcus Sinclair, which does not use the word. The remedy is discretionary: the court may decline and leave the claimant to an ordinary action.

As for why this matters commercially even though breaches are rare, the judgment explains it better than any commentary. The availability of rapid summary enforcement was a significant buttress for the reliability of undertakings, not because there is a history of frequent non-compliance followed by court enforcement, but because the mere existence of that ready and swift means of enforcement made it inherently unlikely that a solicitor would fail to comply. And on the stakes, Smith LJ in Briggs v The Law Society [2005] EWHC 1830 (Admin): undertakings are the bedrock of our system of conveyancing.

The regulatory route survives entirely

This is the part firms most often get wrong in the other direction. Unenforceable by the court does not mean unenforceable.

The SRA published guidance on 9 August 2022, titled undertakings given by, or on behalf of, incorporated practices, and it exists precisely to make this point. Its stated purpose records that a Supreme Court decision has confirmed that the courts have no jurisdiction to enforce undertakings against incorporated practices, but that an incorporated practice could still face regulatory proceedings as there might have been a breach of our rules.

On the regulatory position it quotes paragraph 1.3 of both Codes, which requires that you perform all undertakings given by you, and do so within an agreed timescale or if no timescale has been agreed then within a reasonable amount of time, and states that breach would give rise to a breach of professional conduct and could result in disciplinary action being taken against the solicitor, the firm, its members and/or directors. Note the breadth of that exposure. It is wider than the individual who signed.

The definition is broader than firms assume

The SRA Glossary defines an undertaking as a statement, given orally or in writing, whether or not it includes the word undertake or undertaking, to someone who reasonably places reliance on it, that you or a third party will do something or cause something to be done, or refrain from doing something.

Three features do the work: oral counts; the word is unnecessary; and the trigger is the recipient reasonable reliance, not the intention of the giver. There is no carve-out for informality and no requirement that the giver realised what they were doing. Note too that it covers a statement that a third party will do something, so a line reading our client will discharge the charge is your undertaking, not the client.

That is not theoretical. In SRA v Stubbings, case 12641-2024, heard on 13 February 2025, the respondent defence was that he did not believe he had given an undertaking as such, and that if he gives an undertaking he actually uses the word. The Tribunal set out the Glossary definition and rejected it: he had provided an unequivocal and categoric confirmation that he would provide the documentation upon completion, that confirmation was reasonably relied upon, and the fact that he did not expressly use the word undertaking did not mean he had not given one. The correspondence consisted of a requisition reply saying the firm intended to forward a completed RX3 on completion, firmed up to a repetition that it would be supplied. Fifteen months of delay followed and HM Land Registry cancelled the buyers application. Fine 17,500 pounds, costs 5,500 pounds, plus an 18-month restriction order barring him from sole practice and from holding COLP or COFA roles.

At the other end of the range, in SRA v Stevens, case 12691-2024, judgment dated 23 June 2025, a breached undertaking over a deposit and exchanged contract was combined with misleading the counterparty firm about receipt of a deposit on a 6.5 million pound purchase and with attempting to prevent a report to the SRA. The respondent was struck off. He was a consultant at an LLP, which is the point: the disciplinary route worked perfectly well where summary enforcement against the firm would not have.

Standard forms import undertakings wholesale

Stubbings also shows how undertakings arrive without anyone drafting them. Law Society form TA13 carries the warning that replies to questions 3.2, 5.2 and 5.3 are solicitors undertakings. At paragraph 3.2 the seller solicitor confirms the wish to complete by post in accordance with the Code for Completion by Post 2019 and undertakes to adopt it. The Tribunal held that by doing so he was bound by every undertaking the Code contains, including those he had never individually considered. Ticking the box adopts a bundle.

What to do about it

There is no mandatory training requirement on undertakings, and no minimum CPD hours at all. There is also no rule requiring an undertakings register. But the SRA investigators ask for one by name: in Stubbings they requested copies of entries about the conveyance in his register of undertakings, and the answer given was that no register of undertakings is kept, though the file is marked if one is given. That did not form a separate allegation, so it should not be overstated, but it is a documented expectation and a poor answer to have to give.

The obligations that do bite are the general ones: effective systems and controls under paragraph 2.1 of the Code for Firms, records to demonstrate compliance under 2.2, identifying and managing material risks under 2.5, competence under 4.3 and an effective system for supervising client matters under 4.4. For how the competence duty is discharged and evidenced, see our guide to SRA continuing competence.

For the firm receiving an undertaking, the sequence that follows from all of this is practical. Establish the business structure of the firm giving it before advising a client to rely on it. If it is an LLP or company, tell the client the undertaking is not summarily enforceable, because failing to do so is itself a negligence risk. Consider whether consideration or a deed is needed to secure a contract claim. And remember the SRA route survives regardless of structure.

The Law Society published guidance in July 2022 in response to the decision; that version is now archived on its site and a current practice note has superseded it, so members should read the current version at source rather than rely on summaries of the 2022 one. The Supreme Court own view of the obvious workaround is worth keeping in mind: ensuring a relevant undertaking is given personally by a solicitor as well as by the firm may help, but may not be satisfactory where the individual lacks the power within the firm to ensure compliance occurs, and is at best a partial and temporary solution.

Parliament has not acted. The Court expressed the hope that it would consider the lacuna, and five years later there is no legislation, Bill or government response addressing it. For the underlying obligation and how undertakings go wrong in practice, see our fuller guide to undertakings, risk and compliance for solicitors, and for the other Part 6 duty that produces disciplinary findings at a similar rate, our analysis of why paragraph 6.1 has no exception.