High Court decision on solicitors’ undertakings

Halliwells LLP v NES Solicitors and Quinn Insurance [2011] EWHC 947

NES was approached by a new, apparently wealthy, client and asked to provide an undertaking to pay Halliwells £1.5 million as part of a share purchase agreement. The client provided a “gold delivery certificate” purported to be worth £10 million. The partners of NES, in reliance on the certificate, but knowing the funds had not cleared, provided the undertaking. The certificate was later found to be worthless.

NES failed to honour the undertaking and was sued by Halliwells. Halliwells obtained summary judgment. The professional negligence insurers of NES, Quinn, refused to pay the claim made by NES on the basis that:

i) the partners of NES were dishonest or condoned dishonesty;
ii) that the undertaking was not given in a solicitorial capacity; and
iii) that the undertaking was given for the benefit of NES (ie a £15,000 fee)

It was held that NES had acted dishonestly and as such Quinn was not required to provide an indemnity.

Solicitors should always carry out the requisite money laundering checks and consistently be on the look out for unusual transactions. With regard to undertakings the giving of an undertaking in a ‘solicitorial’ capacity requires substantive legal advice to have been given or a legal service provided. Undertakings have to be given in connection with legitimate legal work and not merely in order to receive remuneration.