Solicitor’s undertaking

In the absence of evidence that an undertaking was impossible to perform, performance of the undertaking would usually be required.

However, where there was an impossibility or it was otherwise inappropriate to order the undertaking to be performed, the court could exercise its discretion to order the solicitor to compensate for the loss caused by the breach of undertaking.

The fact that the undertaking required a third party to do an act did not preclude the court from exercising its supervisory jurisdiction, but it was a factor to be considered by the court in determining whether or not to exercise its discretion.

An undertaking could be performed by the payment of a cheque, albeit a larger one than might have been payable had enquiries been made and agreement reached at the appropriate time.