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Sorry, not sorry… the case for an apology law in UK dispute resolution (Part 1)

How hard is it to say “sorry”?  Elton John was right, it really is the hardest word.  Why is this? If we’ve done something wrong, why can’t we just say sorry and mean it without making things worse? Apparently, it’s just not that simple, and therefore, as is the case in some other jurisdictions, it is proposed that in England we should enact a law to make it easier.

I am prompted to look at the issue of apologies as a result of the Apologies Bill, which was a Ten Minute Rule Bill presented to Parliament by John Howell MP on 1 December 2020. The Bill has passed its first reading. The debate, as recorded in Hansard, was short and sweet. The Bill itself, or any paperwork in relation to it, has not been publicised at the time of writing. Presumably it will appear in due course since it is due for its second reading on 5 March 2021, now adjourned to 16 April 2021.

Mr. Howell seeks to promote a Bill in which apologies could be given without (civil) legal liability that (he says) could run into millions of pounds. He justifies the proposed legislation by reference to cases involving medical errors. He explains that sometimes, all that is required is an apology, often not forthcoming for fear of potential legal claims for compensation. In the limited context in which it is proposed by Mr. Howell, this may seem laudable enough, but is that all? I doubt it. That doubt is fueled by the understanding that the proposed apology law does not appear to be limited to claims for damages arising from “medical errors”, more commonly described as “clinical negligence actions”.  If enacted as proposed, it is intended that it should apply to almost all civil claims.

Mr. Howell is not the first and will not be the last person to advocate for the enactment of legislation to govern how an apology is to be treated in civil dispute resolution and litigation. Proponents are particularly vocal with reference to its use in medical negligence and other claims in tort.  While we can acknowledge without proof that there is a need to manage the emotional trauma involved in these cases, there is equally and perhaps more vocally, a near constant cry from government and insurers of a need to put a lid on the “compensation culture” which is a feature of late 20th and early 21st century civil litigation.

Somehow it is suggested that an apologies law will address both these issues. We should perhaps ask ourselves whether the fact, certainly in the healthcare sector, that health service bodies are subject to a duty of candour, alters the legal landscape. The statutory duty of candour is set out in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which are made under section 20 of the Health and Social Care Act 2008 (as amended by section 81 of the Care Act 2014). (My apologies, we have to follow the legislative trail… without responsibility on my part, you understand?)

Those Regulations stipulate that health bodies must provide care and treatment to service users in an open and transparent way. If something goes wrong, the affected “relevant” person must be told about it and given full information and, specifically, (under Regulation 20(3)(d)) be given an apology. This duty probably explains why healthcare professionals spend their days looking over their shoulders, afraid in case they put a foot wrong while trying to do their jobs in the best way they can with whatever resources are available to them.

Somebody may just have asked whether this is the ideal environment for dispensing medical treatment. It would be a fair question. Perhaps however, the flip side of the imposition of a duty of candour on the providers of health care, including the obligation to apologise for an error regardless of its legal significance, is a corresponding need to provide protection to those providers from any legal consequences which might otherwise attach to the mandated apology? If it is, then in all candour, that fact should be acknowledged and that issues should be addressed.

However, while that may be a reasonable position to assume in relation to healthcare issues, it does not obviously justify or explain a need for legislation embracing almost all civil disputes of any character. Do we actually need more legislation, or even legislation at all, specifically directed to ensuring that an apology howsoever given is denuded of any actual express or implied legal effect?

The real question is whether it is really an indispensable tool of dispute resolution? I think not. The theorists will say that it is, and will list the perceived benefits outlined by Mr. Howell. The pragmatists will say we don’t need it at all, and will point to the many ways parties can come together to resolve a dispute where there is a will to do so, in confidence, and without attracting legal liability for statements made within those processes. The moralists will say we should say what we mean, and mean what we say.

It is plainly not the case that every apology will have the potential to signify legal liability for a wrong. So what, without legislation, is the legal effect of an apology?  The Oxford Shorter Dictionary defines an apology as:

Apology… speech in defence,… speak in one’s own defence;  1.  The pleading off from a charge or imputation; defence or vindication from accusation or aspersion.  2.  Justification, explanation or excuse; 3.  A frank acknowledgement, by way of reparation, of offence given, or an explanation that offence was not intended, with expression of regret for any given or taken.

To apologise…  to make or serve as an apology; to offer defensive arguments; to make excuses;  Also in modern usage: to acknowledge and express regret for a fault without defence.”

We can see immediately that an apology covers a myriad of situations, not all involving an admission of legal liability. The objective of apology legislation is to remove any possibility that an apology will be permitted to be used in evidence to prove an admission by the maker of civil legal responsibility for an event.

England has in fact already attempted to address this issue in existing legislation. I am referring to section 2 of the Compensation Act 2006, a statute designed to manage (and attempt to limit) the burgeoning disputes about liability for claims for damages for mesothelioma caused by exposure to asbestos. It was, and is, an emotive subject, and has generated a great many claims which assert that people have been harmed or even killed by exposure to asbestos. Section 2 of that Act provides:

Apologies, offers of treatment or other redress. An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of duty.”

In addition to providing for liability-free apologies, the Act also provided for judges and tribunals to limit compensation claims in the name of the need for defendants to undertake what is termed “desirable activities”. The Act however, failed to provide any definition of an apology and, as a result, has been criticised for providing a basis for the tendering of only luke-warm, partial apologies which can be more destructive than positive in interactions seeking to compromise claims. Unfortunately, the drafting of section 2 is such that the scope for argument about the admissibility of all or part of an apology as evidence in proceedings is very wide. In Part II of the Act, which is the bulk of the statute, provision was made for the statutory regulation of claims management services generally which was a direct attempt to manage a significant driver of the “compensation culture”. The cynics among us will say that the purpose of the legislation as a whole was to put the lid on these claims.

The key area where apologies legislation is supposed to benefit parties is in the early stages of conflict where it is suggested that disputes may be avoided by the ability to provide an apology without legal responsibility. However, any lawyer will advise that, in the right circumstances, that has always been possible. Without expanding into a treatise on alternative dispute resolution (ADR), mediation is a good example of a process which is intended to be conciliatory from beginning to end and which can facilitate a settlement of a dispute in ways not open to parties in formal dispute resolution proceedings. Even within the context of formal proceedings, prior to, during pre-action exchanges or during litigation, without prejudice negotiations can be used to achieve the same result. Both these mechanisms afford ample scope for the making and receiving of apologies without causing any detriment to the legal position of the defendant if the parties do not settle the case. Why, therefore, do we need to muddy the waters with an apology law which, howsoever it is drafted, will be a catalyst for satellite disputes about its meaning and effect in case after case?

So what is there to gain from legislation in this area? In my Part 2 blog post, I will explore some examples of apology laws from different jurisdictions, and will have a look at their impact on the resolution of civil disputes.

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