Neutral Citation No:  NICh 28
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
"…We write to confirm that our client would be willing to accept your client's second proposal in that he will accept 100% ownership of the matrimonial home … and 100% of the liability of the mortgage and will make all endeavours to obtain the consent of the lending institution to consent to the transfer and release of 50% of our client's ownership and reliability in full and final settlement…"
"On your undertaking that you will:
(1) Arrange the deed for execution by Ulster Bank and Mr McCann
(2) Register the deed and forward land registry acknowledgment to us.
(3) Confirm the transfer has been registered and forward proof of same."
"Certified copy transfer/matrimonial agreement sealed by the lending institution:
- Land Registry confirmation receipt."
"(i) Complete registration of the transfer and
(ii) forward confirmation of same."
On the same date the plaintiff's solicitor advised the court office dealing with the matrimonial proceedings of the position.
"… I advised that ultimately if Mr Agnew was prepared to give me an undertaking that he would complete the registration of the transfer deed and further that he would forward a copy of it to us, that I would be happy for the decree absolute to stand."
"We the undersigned solicitors for the respondent hereby undertake to furnish a copy of the land registry letter of confirmation of completion of registration to you when received.
You will be aware that your client was formally released from her mortgage obligations on 19 February 2014 and that the procedure in respect of this matter which we have now provided a formal undertaking for was already clearly communicated to you in our letter of 6 January 2014, and we have also prior provided the above undertaking to the court."
"… I can confirm that your client Claire Thomas is still a party to the mortgage and remains jointly and severally liable with Mr McCann to meet all payments due thereunder. … The bank has not executed any documentation purporting to release Ms Thomas from her mortgage obligations. The copy Form 10 you have forwarded dated 30 January 2014 has not been executed by the bank. The bank being a limited company can only execute same by way of:
(a) affixing its seal, or
(b) directors of the bank signing, or
(c) an authorised Attorney of the Bank signing under a specified Power of Attorney with appropriate attestation clause providing details of the said Power of Attorney.
We note that the Form 10 shows a signature, (which we do not recognise), and a cashier's stamp in the witness section but the bank has clearly not executed the form. In no circumstances are such documents executed in a branch."
The plaintiff's submissions
The defendant's submissions
Relevant legal principles
"(1) The nature of the summary jurisdiction is explained in the following passage from the speech of Lord Wright in Myers v. Elman  AC 282,319:…
(2) Although the jurisdiction is compensatory and not punitive, it still retains a disciplinary slant. It is only available where the conduct of the solicitor is inexcusable and such as to merit reproof …
(3) If the misconduct of the solicitor leads to a person suffering loss, then the court has power to order the solicitor to make good the loss occasioned by his breach of duty …
(4) Failure to implement a solicitor's undertaking is prima facie to be regarded as misconduct on his part, and this is so even though he has not been guilty of dishonourable conduct … However, exceptionally, the solicitor may be able to give an explanation for his failure to honour his undertaking which may enable the court to say that there has been no misconduct in the particular case …
(5) Neither the fact that the undertaking was that a third party should do an act, nor the fact that the solicitor may have a defence to an action at law (e.g. the Statute of Frauds), precludes the court from exercising its supervisory jurisdiction … However, these are factors which the court may take into account in deciding whether or not to exercise its discretion and, if so, in what manner.
(6) The summary jurisdiction involves a discretion as to the relief to be granted … In the case of an undertaking, where there is no evidence that it is impossible to perform, the order will usually be to require the solicitor to do that which he had undertaken to do …
(7) Where it is inappropriate for the court to make an order requiring the solicitor to perform his undertaking, e.g. on the grounds of impossibility, the court may exercise the power referred to in paragraph (3) above and order the solicitor to compensate a person who has suffered loss in consequence of his failure to implement his undertaking …"
"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract."
"An undertaking should … be read sensibly and in light of the commercial context in which it is given."
"The supervisory power over solicitors … is essentially a summary disciplinary one exercised by the court over its own officers to ensure their observance of an honourable standard of conduct and to punish derelictions of duty. The court has the necessary powers of enforcement which extend, … to the payment of compensation for loss suffered in consequence of misconduct of a solicitor in failing to implement an undertaking given to the court. The award of compensation is not, however, dependent on an enforceable civil law right on the part of the person who has suffered loss … Compensation is only available under this jurisdiction where the conduct of the solicitor is inexcusable and such as to merit reproof … The discretionary nature of the jurisdiction should be emphasised. The discretion extends both to procedure and substantive relief. It is flexible and unfettered by any absolute rules and is to be exercised according to the facts of the particular case."
"… The undertaking has not been breached as it is being complied with. We enclose herewith extract from our client's e-mail for your information …"
"… We will have no alternative but to make an application to the court to come off record and cease to act for you, in that application we will be making the court aware that when we provided an undertaking to have your wife released from the mortgage that we were acting on instructions from you that the consent and release of the Ulster Bank had already been obtained following your and your father's attendance and negotiation at the bank."
"1. On the 18 March 2014 the Defendant gave an undertaking in his capacity as solicitor…that he would provide a copy of the Land Registry letter of confirmation of completion of registration.
2. No properly executed registration had been provided and Conor Agnew has been called upon to honour the said undertaking and has failed to do so."
I am satisfied that if the plaintiff had understood the undertaking to mean that the plaintiff was released from the mortgage that she would have made this case in her pre-action letter and the originating summons.