In some circumstances, it is appropriate to give an ‘undertaking’ to act or not to act in a particular way. An undertaking is a means by which you promise to do something, but it is a legally binding promise and there are consequences in the event that you break it.
Undertaking Examples
An example would be if A sought an injunction against B because B was intending to use A’s confidential information in relation to a business deal. If A and B were able to come to some kind of an agreement without having to go to the High Court for a full hearing, part of the terms upon which they might agree could be that B gives an undertaking that he would promise not to use the confidential information.
Providing such an undertaking does not mean that B would be in effect admitting some past wrong conduct, (the intention to misuse the confidential information)or accepting any other kind of liability. It does however mean that if B then goes on to break the undertaking he will be dealt with as though he had broken a court order.
Domestic Undertakings
Undertakings are frequently used in family law cases in which the court does not consider there to be a need for a full injunction. Undertakings are not used for serious domestic violence cases or in situations in which a mother or child may be at risk of significant harm.
However, in less dangerous cases the defendant (partner against whom the injunction would be sought) can be given notice to come to court (at least two days notice is required) and give an undertaking about his or her behaviour that would prevent any recurring problems in the past. Again, there is no requirement for any blame to be apportioned, although undertakings are not always appropriate in very serious family cases.
Breaking an Undertaking
An undertaking should never be given lightly and you should only agree to this kind of promise if you are sure that you are capable of keeping to the terms of the agreement. If you do not, you may be subject to a committal order. A committal order is an order of the civil court that has the effect of sending you to prison. However, it is important to note that breaking an undertaking in this way does not entitle the police to a Power of Arrest, nor is there a criminal offence for breaking an undertaking.
Procedure
If you are a party to proceedings and it is you who is giving the undertaking you must record the undertaking in writing. A copy must be given to the other side, either by hand, post or through their lawyer. If this is not possible, the court officer can deliver the undertaking to the party for whose benefit the undertaking has been given, so that they can serve it without delay. (County Court Rule 29 1A).
Solicitor Giving an Undertaking
It is common practice between solicitors to give undertakings to other solicitor’s firms, to courts, and other public bodies. For example, if a court requires original documents before it can fix a hearing date, a solicitor may fax the documents to court with a written undertaking to send the originals by first class post. Often the court will proceed as though they are in possession of the originals, on the strength of this undertaking. Note that the solicitor is not promising that the original documents will be in the court’s possession the next day – as whether that occurs relies on the postal service and is out of the solicitor’s control.
A Note on Undertakings
Undertakings drafted into contracts aren’t as a general rule enforceable. To have a party sign an undertaking that they will in effect adhere to the terms of the contract and not challenge them at a later stage is therefore not advisable.
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