Harcus Sinclair LLP and another v Your Lawyers Ltd [2021] UKSC 32

This is an important Supreme Court decision on solicitors’ undertakings with significant implications for the profession. A non-compete undertaking given on behalf of a firm was not given in their ‘capacity as a solicitor’ as it was not part of their ordinary professional practice but instead related to a potential business opportunity.

The most significant part of the judgment is obiter but the Supreme Court held that the non-compete clause would not have been enforceable against the firm as a solicitor’s undertaking because the firm, as an LLP, is not an officer of the court. It would also not have been enforceable against the member who gave it as he gave it on behalf of the firm. This may have significant implications for daily practice particularly conveyancing.

As the Supreme Court identified, ‘[there] can be no doubt that the underpinning of those undertakings by the availability of rapid summary enforcement under the court’s supervisory jurisdiction has been a significant buttress for their reliability, and for the propriety of accepting them as part of the every-day machinery for modern conveyancing. This is not because there is a history of frequent non-compliance followed by court enforcement. Rather, the mere existence of that ready and swift means of enforcement made it inherently unlikely that a solicitor would fail to comply.’

Two thirds of solicitors’ practices are incorporated as LLPs or limited companies.

See here.

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