The UK is widely regarded as the most developed W&I market globally being used in over 50% of transactions. W&I insurance is no longer expensive and only used for the multi-jurisdictional, large transactions. It is frequently:

• standard on PE transactions and Auction processes;
• a seller expectation for a clean exit or minimal seller liability;
• used in competitive or accelerated sale processes;
• adopted where proceeds of a sale need to be utilised straight away;
• a buyer requirement to bridge warranty risk; and
• a deal-enabler where escrow or indemnities are commercially unworkable.

The decision not to use W&I insurance is just that, a decision, and one that should be made consciously by an informed client.

For buyers, W&I provides creditworthy recourse where seller covenant strength is limited. For sellers, it enables near-total release from post-completion liability. For both sides, it often simplifies negotiations and accelerates deal timetables.

Against this backdrop, the absence of any discussion around W&I insurance is becoming harder to justify.

Solicitors’ professional obligations do not require them to recommend insurance products. But they do require something more fundamental:

• to act in the client’s best interests;
• to provide competent, informed advice; and
• to ensure clients understand material risks and options.

Where W&I insurance is a widely-used, well-established risk-transfer tool, it becomes harder to argue that it falls outside the scope of “material options” in a transaction.

The issue is not whether a lawyer must recommend W&I insurance, it is whether they should ensure the client has at least been made aware of it.

The trajectory of W&I insurance is increasingly reminiscent of how After-the-Event (ATE) insurance evolved in litigation. As ATE moved from niche to mainstream, the professional standard shifted with it. Since 2019, UK litigators have been required to advise clients on the availability of ATE insurance where relevant, not because it must always be taken, but because informed decision-making demands it. The expectation is clear: the option is raised, explained, and the client’s choice documented, regardless of whether cover is ultimately placed.

Problems tend to arise after completion, when:

• a warranty breach emerges
• the seller is unable or unwilling to pay
• escrow is insufficient or time-limited
• the buyer asks, “Could this have been insured?”

At that point, the absence of any record that W&I insurance was discussed can become uncomfortable for lawyers and where allegations of inadequate advice (or worse) begin to crystallise.

In our experience, disputes are rarely about whether W&I insurance would definitely have paid out. They are about whether the client was given the opportunity to consider it.

Advising on W&I insurance does not mean becoming an insurance expert. It means recognising when:

• warranty exposure is meaningful;
• recovery risk exists; and
• the market would reasonably expect insurance to be considered.

A simple, well-timed discussion, often with a specialist broker like ourselves at Bartlett , can demonstrate that the solicitor:

• identified a relevant risk-transfer option;
• ensured the client made an informed choice; and
• protected both the transaction, the client and themselves.

The most effective firms tend to:

• explicitly reference W&I insurance in their terms of business and engagement letters;
• raise W&I insurance early, alongside discussions on warranties, indemnities and escrow;
• frame it as an option, not a recommendation;
• document the discussion, particularly if the client decides not to proceed; and
• introduce a specialist broker, rather than attempting to advise on coverage themselves.

This approach strengthens client outcomes and reduces professional risk.

Before signing a SPA, it is worth asking:

• Would W&I insurance change the client’s risk profile?
• Would a reasonable client expect this option to have been raised?
• Is there a clear record of the discussion and the client’s decision?
• How would this advice look if a warranty claim emerged later?

W&I insurance is now sufficiently established that silence on the topic can be harder to defend than raising it. This is not about selling insurance. It is about good advisory practice in a modern M&A environment.

For corporate lawyers, the safest position is rarely to ignore W&I insurance but to ensure the client has had the chance to consider it.