‘The law of apologies’ – consultation launched with reform likely

Traditionally, parties to civil disputes have been reluctant to offer any form of apology, regardless of circumstances, driven by concerns that it may be seen by the aggrieved party as an admission of fault/liability and it may otherwise weaken their case.

That reluctance was underpinned by the position at common law – that a party is not prevented from relying on the apology in later civil proceedings. This has led to “apologies” being couched in careful, cautious language or simply not made at all.

The Government sought to remedy this, through the passing of The Compensation Act in 2006, which had the aim of making it easier for public institutions, private companies and their employees to apologise without admitting liability. 

Section 2 of the Act states: “an apology, an offer of treatment or other redress should not amount to an admission of negligence or breach of duty”.

In recognition that there is little evidence, since the Act was introduced, that it has encouraged businesses to use apologies as a form of reparation - leaving many victims without proper closure and with a sense that they are unable to move on with their lives - the Government recently launched a consultation on amended new legislation. This followed a Private Members Bill introduced by John Howell, MP.  The Bill has at its heart:

“(a desire) to allow an apology to be given that is genuinely and sincerely meant without creating a legal liability”.

The consultation

There are three core issues to be addressed by respondents:

1. How can the existing law be clarified to encourage organisations to apologise more?
2. How should the law of apologies apply in cases of child sexual abuse?
3. What improvements could be made to support victims and spare them lengthy court disputes?

Limitations 

The Government is at pains to stress that this consultation will not lead to new legislation which will force those defending claims to offer an apology and it will also expressly reserve the right of either party to pursue legal action, even when an apology has or has not been offered.  

The consultation closes on 3 June 2024.

The Independent Inquiry into Childhood Sexual Abuse (IICSA) 

One of the many recommendations made by the Independent Inquiry into Childhood Sexual Abuse (IICSA) was for the Government to amend The Compensation Act of 2006, to make it clear that Section 2 of the Act applied to cases which involved the issue of vicarious liability in childhood sexual abuse cases.

IICSA heard from witnesses in many historical cases that an apology was seen as equally more important than compensation. Typically, witness A23 to the enquiry:

 “an apology would have been priceless to me and worth more than any amount of money”.

The enquiry also emphasised the importance of victims of abuse receiving genuine and meaningful apologies in terms of helping them to cope with the impact of the abuse they suffered.

The law of apologies outside England and Wales 

The US state of Massachusetts was the first in 1986 to introduce legislation that an apology would not be seen as “evidence of fault”. This was followed by British Columbia and then Australia in 2002, though the latter has exceptions where the incident results in death and specifically to tobacco litigation.

North of the border, the Scottish Government introduced The Apologies (Scotland) Act (2016) .

The intention of the Act, put simply, is to block the position at common law of any party relying on the apology in later civil proceedings:

Section 1:

“In any legal proceedings to which this Act applies, an apology made (outside the proceedings);

1. is not admissible as evidence of anything relevant to the determination of liability and
2. cannot be used in any other way to the prejudice of the person by or on behalf of who the apology was made.

The Act does not apply to admissions of fault or criminal proceedings (our emphasis).

The word ‘apology’ is defined within the statute as follows:

“any statement made by or on behalf of a person which indicates that the person is sorry about, or regrets an act, omission or outcome and includes any part of the statement which contains an undertaking to look at the circumstances giving rise to the act, omission or outcome with a view to preventing a recurrence”.

Commentary

If, as it seems is its intention, the Government introduces legislation similar to Scotland, what will be the consequences for England and Wales?

Despite the Act coming into force in early 2017, the Government recognises, in launching the present consultation, that there is no empirical data to ascertain how widely it has been used, how this has influenced behaviours (if at all) and whether this has reduced or increased litigation north of the border.

As the Act excludes admissions of fault, this therefore could lead to contested litigation over the question of when is an apology an apology. When does it constitute an admission of fault?

Charlie Irvine, of the University of Strathclyde, writing in the Edinburgh Law Review (“The proposed Apologies Act for Scotland: good intentions with unforeseeable consequences’’, 2013), reasons that for an apology to be seen as effective and sincere, it must contain three constituent elements; an acknowledgment that there has been a bad outcome for the other party, it conveys regret, sorrow or sympathy for that outcome, it recognises direct or indirect responsibility for that bad outcome, and arguably a fourth element – remediation;that the circumstances giving rise to the incident will not happen again. Without such, Irvine argues that the “apology” risks becoming a PR exercise- ‘expressing sorrow but impressing no-one’.

Without judicial precedent to assist, lawyers, perhaps understandably, will advise their clients to exercise caution in the wording of apologies. This may lead to an apology dismissed as “hollow” or “half-hearted”. A ‘partial apology’ which contains no admission of fault or responsibility risks exacerbating the situation. Two examples highlight that risk: firstly. Jack McConnell’s (MSP) 2004 apology for the historic abuse of Scotland’s looked-after children. Secondly the initial expression of regret made by Enda Kenny, the Irish Prime Minister in 2013, for the stigma and conditions suffered by the women who were inmates in the Magdalene laundries scandal - stopping short of a full Government apology. A fulsome apology made two weeks later was, however, broadly welcomed by survivors.

In the context of the adversarial culture of litigation, an apology may increase the expectations of redress/compensation amongst the lawyers representing the aggrieved party. 

Conversely, an apology meant sincerely, which is then rejected by the other party, could increase rather than decrease tension and provoke a desire to ‘fight on’, rather than compromise. The evidentiary exclusion of any new legislation, as Irvine points out, ‘risks robbing the apology of its moral content and undermining its sincerity’.

There are, however, some grounds for optimism. Any new legislation is likely to remove the barriers expressed by some insurers to IICSA, that (any future exemption) will definitively include cases of  vicarious liability. Several witnesses to the Inquiry gave evidence that they were uncertain whether the current Section 2 Compensation Act exemption had applicability to that class of case. This will be important to victims of childhood sexual abuse and, it is hoped, will make it easier for them to come to terms with the impact of the harm perpetrated to them.

There are also signs that the definition contained within the Apology (Scotland) Act and the specific inclusion of an undertaking to look at the circumstances giving rise to the act/omission/outcome, with a view to preventing an occurrence – thereby including the important element of remediation - has struck the right balance.

In the words of John Howell, MP: “an apology can truly change atmospheres, the nature of conversations and outcomes……..(it) can unlock disputes, lead to settlements without recourse to legal action”.

For the moment at least, pending any new legislation, ‘sorry’, really does seem to be the hardest word.