The insurer pays the claim, so the insurer decides whether to fight it — until the QC clause cuts in and the insured gets the casting vote.
Consent to settle is the most misunderstood condition in professional indemnity. Buyers assume the insurer controls settlement because it controls the cheque book. Insurers assume the insured will defer to the panel solicitor’s advice. Both assumptions break down the moment the case becomes commercially significant — when reputational damage matters more than the indemnity payment, or when an offer on the table is within the deductible but the underlying complaint is one the firm wants struck out on principle. This guide explains how QC clauses, senior counsel clauses and costs-inclusive limits actually interact, and what professional firms should look for in their wording before a dispute arrives.
A typical PI policy gives the insurer the right to take over and conduct the defence of any claim. The insurer appoints solicitors from its panel, instructs counsel, and runs strategy. The insured cooperates and supplies documents. So far, so conventional.
Tension appears at the settlement stage. The insurer’s interest is binary: pay the claim for the lowest defensible figure as quickly as possible, control defence costs, and close the file. The insured’s interest is rarely that simple. A solicitor’s firm facing an allegation of negligent advice may prefer to fight even a modest claim because settling will be reported to the Solicitors Regulation Authority and may affect renewal terms. An architectural practice on a residential scheme may prefer to settle quickly to preserve the client relationship and avoid disclosure of internal correspondence. A surveying firm may see a strategic case where setting a precedent matters more than the claim value.
To resolve this, almost every PI wording in the UK regulated market contains a “QC clause” or “senior counsel clause”. The mechanism is the same under either label. If the insured wishes to contest a claim that the insurer wishes to settle, the question is referred to a senior independent counsel, agreed between the parties or chosen by a nominated body. Counsel advises whether the claim should be contested. If counsel concludes that the contest is not reasonable — meaning the prospects of success do not justify the cost — the insured cannot insist on fighting at the insurer’s expense. If counsel concludes the contest is reasonable, the insurer must continue to defend.
This is the practical balance: the insurer controls the wallet, the insured controls the principle, and an independent KC arbitrates where they disagree.
The mechanical operation of consent to settle depends on three features of the wording: the QC clause itself, the costs treatment of the limit, and any insurer veto on settlement above a stated amount.
The Solicitors Regulation Authority Minimum Terms and Conditions of Professional Indemnity Insurance, at clause 5.2, prohibit insurers from refusing to settle a claim above the minimum terms limit on terms otherwise acceptable to the insured. Put more plainly: a qualifying insurer of a solicitors’ practice cannot block a settlement that the insured is content to fund out of its own pocket above the MTC limit. This is a one-way ratchet protecting the insured’s freedom to settle. It does not extend to other professions. RICS, ARB and ICAEW-regulated firms operate under wordings that may, depending on the insurer, permit a broader insurer veto.
The costs treatment of the limit drives the economics. A costs-inclusive limit (the SRA Minimum Terms default for primary cover) means that defence costs and indemnity payments share the same limit. Every pound spent on counsel reduces the cover available to settle. A costs-in-addition limit, common in excess layers and some non-solicitor wordings, means defence costs sit outside the limit. The strategic implication is direct: on a costs-inclusive limit, the insurer has a strong economic interest in early settlement because each month of defence erodes the available cover; on a costs-in-addition limit, the insurer is more willing to fight, because the limit is not consumed by the legal bills.
Where a wording gives the insurer the right to settle without insured consent, the QC clause is the insured’s protection. Where the wording gives the insured the right to refuse a settlement, the insurer’s protection is usually a “no greater than” clause — the insurer’s liability is capped at what it would have paid had the insured accepted the settlement, plus reasonable defence costs to that point. This puts a hard ceiling on the cost of fighting on principle.
The Insurance Act 2015 sits behind all of this. Sections 13 and 13A regulate the insurer’s handling of claims, including the implied term to pay sums due within a reasonable time. Settlement strategy is the area where good faith and reasonable claims handling are most often tested in practice.
Consider an architectural practice with a GBP 5,000,000 limit of indemnity on a costs-inclusive basis and a GBP 50,000 deductible. A claim is brought for GBP 1,200,000 alleging negligent specification of cladding on a residential block. The insurer’s panel solicitor advises settlement at GBP 600,000 after eight months of pleadings. Defence costs to date are GBP 180,000.
The insured disagrees. The practice considers the claim defensible on causation grounds and is concerned that settlement will damage its standing on a portfolio of similar projects. The practice invokes the QC clause. Independent senior counsel reviews the file and advises that the claim is contestable with a 55% prospect of successful defence at trial, with estimated further costs of GBP 400,000.
Counsel’s view that the contest is reasonable means the insurer must continue to defend. The practice runs to trial 14 months later, achieving a judgment reducing the claim to GBP 200,000 plus the claimant’s costs of GBP 250,000. Total spend: GBP 200,000 indemnity plus GBP 580,000 cumulative defence costs plus GBP 250,000 claimant costs — GBP 1,030,000 against the GBP 5,000,000 limit. The principle was vindicated; the limit was preserved. Had the architectural practice operated under a costs-in-addition wording, the defence costs would not have eroded the limit at all.
Settlement architecture is set at renewal, not at the moment a claim is reported. The relevant checks:
Apex’s view: most firms discover their settlement clause for the first time in the week the insurer wants to pay a claim they want to fight. By then it is too late to negotiate the wording and only just early enough to invoke the QC clause properly. We push every client to read the consent and costs language before binding, and we ask the underwriter for written confirmation of how the panel solicitor will be instructed if a QC clause is triggered. It is not a renewal that produces a friction-free claim — it is the work done at renewal that does.
Apex Insurance Brokers serves UK professional services firms and commercial businesses. Call 0117 325 0027, email hello@apexinsurancebrokers.co.uk, or request a quotation.
Get a quote