Whether committal proceedings can be brought against solicitor for breaching an undertaking given to a party and not the court
The novel issue in dispute in this case was whether the court has jurisdiction to allow committal proceedings to be brought against a solicitor for breaching an undertaking which was made to the other party and not to the court. Hickinbottom J summarised the position as follows:
- Although the High Court has a wide jurisdiction over solicitors as officers of the court (in addition to its inherent and statutory powers in relation to contempt), there are boundaries on the exercise of that jurisdiction.
- The High Court’s jurisdiction is in addition to, and runs parallel to, the regulatory functions of the Law Society in relation to the discipline of solicitors, which are now performed by the SRA. However, unlike the High Court, the SRA has no power to order compensation for the breach of an undertaking (and nor does the court in its contempt jurisdiction). So the High Court’s jurisdiction will only usually be exercised where someone has “lost out” as a result of the solicitors’ conduct and the court is the appropriate forum to put right that loss.
- The courts have a general power summarily to enforce any undertaking given by solicitors. Where a solicitor is unable to comply with a positive undertaking (e.g. because it has become impossible to perform), the beneficiary of the undertaking may seek compensation. Where a solicitor has failed to perform a negative undertaking (i.e. that he/she will not do something), the appropriate course will be to seek an injunction: “It may also be appropriate to report the solicitor to the SRA for the breach of the regulations that require a solicitor to comply with undertakings he gives as a solicitor. It will not usually be appropriate to seek to commit the solicitor straightaway, because these other steps will usually be available”.
- Furthermore, proceedings to commit a solicitor for breaching an undertaking not to the court should generally be discouraged on public policy (and European Convention on Human Rights) grounds. That is because: “There is clear potential for tactical mischief by a party seeking to commit a solicitor, which application might require that solicitor, at least temporarily, to withdraw from acting from his client”.
The judge refused permission to bring the committal application.