Further to my Part 1 blog on this topic, I now ask: what is there to gain from legislation in this area? What broader experience is there of apology legislation where it has been enacted? While time and space do not permit a global trawl to evaluate the effect of such legislation in all the countries in which it has been enacted, I can provide some examples.
Hong Kong was the first jurisdiction in Asia to pass a law regulating the legal consequences of an apology in civil proceedings. It arose as a result of a recommendations from the Steering Committee on Mediation, and has the object of “[promoting] and encouraging the making of apologies with a view to preventing the escalation of disputes and facilitating their amicable resolution”.
The Hong Kong legislation differs from others in that it covers both “partial” apologies (expressions of sorrow or regret) and also “full” apologies (those admitting fault within the apology); the intention being to maximise its effect and use it as a driver to settle disputes. Most other apology laws are confined to just “partial” apologies. Under the Hong Kong Apology Law [HK Law], neither the apology itself, nor any statement of facts made within it, is admissible in evidence against the maker.
The HK Law came into force in July 2017 and is intended to facilitate the resolution of civil disputes by reforming the existing law so that any form of apology, be it in writing, oral or by conduct, will not constitute any admission of liability, nor is it admissible in evidence against the apology maker. Importantly, it will not void or affect any contract of insurance or indemnity. It has retrospective effect in terms of the events to which it applies, but applies to apologies given after its commencement. The rationale behind the legislation was that it was thought that if an apology could be given without any possible adverse legal consequences, it might facilitate an early settlement of disputes without recourse to litigation or arbitration.
There are however some limited exceptions which provide that an apology is admissible as evidence [in that the HK Ordinance does not apply] to:
“s5(2) (a) an apology made by a person in a document filed or submitted in applicable proceedings;
(b) an apology made by a person in a testimony, submission, or similar oral statement, given at a hearing of applicable proceedings; or
(c) an apology adduced as evidence in applicable proceedings by, or with the consent of, the person who made it.”
Evidence of an apology may therefore be elicited by these other means, but generally a claimant needs to look to prove its case independently of any apology containing any implied or express intimation of acceptance of fault or liability.
There is, however, an exception in the HK Law which provides:
“…if in particular applicable proceedings there is an exceptional case (for example, where there is no other evidence available for determining an issue), the decision maker may exercise a discretion to admit a statement of fact contained in an apology as evidence in the proceedings, but only if the decision maker is satisfied that it is just and equitable to do so, having regard to the public interest or the interests of the administration of justice.”
So it rather looks as if the Hong Kong legislature had a wobble at the last moment and sought to ensure that where there was an admission, but insufficient other evidence to prove liability, the decision maker has a discretion to allow an apology to be admitted into evidence. With a backstop of this nature, one wonders if the HK Law will make the intended, or indeed any meaningful impact on the resolution of civil disputes.
With limited exceptions the HK Law applies to all civil proceedings including litigation and arbitration. However, given the privilege already provided to without prejudice negotiations and mediation procedures in Hong Kong, the HK Law has no impact on those processes, which arguably is where an apology might be deployed to best effect to avoid escalation of, or to settle disputes. There does not yet appear to be any significant evidence of the effect or value of this legislation to those engaged in dispute resolution in Hong Kong.
In Ireland, the Legal Services Regulation Act 2015 amended the Civil Liability and Courts Act 2004, in relation to clinical negligence actions. The thrust of the amendment was to introduce a pre-action protocol for clinical negligence actions with the object of both reducing the number of actions and encouraging early settlement or agreement by parties to submit issues for resolution otherwise than by a court. The political and commercial objective of reducing the burden of these claims on the court system is therefore clear.
In addition, section 32D of the Civil Liability and Courts Act 2004 provided that an apology made in connection with an allegation of clinical negligence does not constitute an express or implied admission of fault or liability, and does not, notwithstanding any provision to the contrary in any contract of insurance, invalidate or otherwise affect any insurance coverage. Furthermore, evidence of an apology so given, is not admissible as evidence of fault or liability of any person in an action. Again, the objectives of these provisions are clear. The amendment to the Act does not apply to causes of action or actions commenced before the coming into operation of the provision.
Ireland, therefore, has enacted an apology law which is limited in its application to clinical negligence actions.
Closer to home, Scotland has enacted the Apologies (Scotland) Act 2016, which applies to most civil proceedings and provides in respect of proceedings to which the Act applies. An apology is defined (in section 3) as:
“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.”
Under the Act (section 1) an apology made in connection with any matter:
“(a) is not admissible as evidence of anything relevant to the determination of liability in connection with that matter, and
(b) cannot be used in any other way to the prejudice of the person by or on behalf of whom the apology was made.”
The application of the Scottish legislation to civil claims generally is wider than in other jurisdictions, but the definition of an apology leaves scope for dispute which immediately undermines the protection which it was intended to afford to potential defendants. This might have been avoided or limited by adopting a definition closer to that used in Hong Kong, where the statute also protects and renders inadmissible as evidence any statement of facts set out in the apology. In addition, the Scottish act also has no retrospective effect.
As in other jurisdictions, there is no body of evidence available to demonstrate the impact, if any, of this legislation on dispute resolution.
The proposed Apologies Bill in England and Wales: concluding thoughts
So, what conclusions can we draw from the experiences of others, insofar as the proposed legislation for England and Wales is concerned?
Firstly, there is no body of evidence to show that an apology law is either necessary or helpful in the settlement of ordinary civil actions. It is respectfully suggested that such a law would devalue the impact of an apology which may be counterproductive rather than conciliatory.
Secondly, its place in the armory of procedures which are used to deal with clinical negligence claims would appear to have some merit, especially where the service providers are subject to statutory duties of candour, and obligations to provide apologies when issues arise. Here, there is a case to protect the maker of the apology.
But thirdly, and finally, the proposal to impose it generally on all civil claims gives rise to questions as to why this is necessary and whether there is some big picture issue which is as yet unspoken in the debate. For example, one does not need to look far or think very hard to see the potential benefit to the government of such legislation in relation to potential claims arising from Britain’s ubiquitous indefensible colonial history. In 2013, the UK government finally apologized to the Mau Mau people in Kenya for the atrocities wrought in detention camps during the 1950s uprising. In so doing, it also settled claims brought by 5,200 claimants. The same cannot be said of claims made by others. Their calls for apologies and reparations have gone unheeded. The Mãoris, victims of Cook’s invasion and exploitation of their land and people; the Indians, the victims of partition and atrocities like the Amritsar massacre; and last but by no means least, the former colonies in the Caribbean where Britain and others generated wealth on the back of the barbaric slave trade. Caricom, in its 10 point plan for reparatory justice has made it clear that the starting point for any discourse is a full formal apology. While one can see that if Britain puts in place an apologies law as proposed, it might also position the government finally to tender “full formal apologies” for all these historic abuses against the colonies, and other egregious administrative errors. In such changed circumstances, how would they be viewed by the recipients and what really would they be worth?
A meaningful apology involves both the acceptance that we have done wrong and, critically, the acceptable of responsibility for the failure and the harm done. Anything less sends a clear signal that we are just saying sorry because we should, and not necessarily because we mean it. As the children say: “sorry… not sorry”.