Government reviews role of apologies in civil litigation

Bellamy: Should it be easier to make an apology?

The government today launches a consultation on whether it should be easier to apologise in civil proceedings without admitting liability.

The Ministry of Justice (MoJ) said the Compensation Act 2006, which first legislated for this, has had little impact and it is seeking evidence on why and whether fresh legislation is required.

The consultation paper cites the Apologies (Scotland) Act 2016 as a possible model, although its impact is also thought to be quite low.

Justice minister Lord Bellamy said: “While there is little empirical evidence to suggest how effective the current legislation is, the general view is that it has had very little impact as parties are understandably very averse to offering apologies for fear of liability being admitted.

“This consultation, therefore, looks at the role of apologies generally within the sphere of civil justice and asks whether the Compensation Act is suitable or whether it should be replaced with new legislation, and if so, what the new regime should be.”

Section 2 of the Compensation Act provides that “an apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty”. It does not define an apology.

The aim of the Scottish law was to provide legal certainty that an apology – as defined by the Act – could not be used as evidence in civil proceedings.

It also applies to a wider range of proceedings, namely all civil proceedings apart from certain specified exceptions, such as defamation and public inquiries.

The MoJ said it was “not minded” to go as far as a 2017 law in Hong Kong, which prescribes that an apology will not constitute an admission of fault or liability even if it includes such an admission, nor may it be admissible in evidence to the detriment of the apology maker.

Any statement of fact included in the apology will also, in most cases, be inadmissible in evidence against those making an apology.

The consultation said this meant that the fault still needed to be proven in court and “may well represent a duplication of work for the claimants and an increase in their costs that may not be recoverable”.

Lord Bellamy said it addressed the “fundamental question” of whether it should be easier to make an apology and the MoJ wanted to hear real-life experiences.

“There are points to be made on both sides. Some argue that protected apologies help settle cases early and so it should be easier to make one,” he said.

“On the other hand, others believe that the apology will not assist in the resolution and therefore that the desire for one need not be addressed in an apologies statute.”

The consultation also takes forward the 2019 recommendation of the Independent Inquiry into Child Sexual Abuse to consider amending the Compensation Act to make clear that section 2 extends to cases involving vicarious liability for child sexual abuse.

It further considers alternative approaches involving secondary legislation or guidance, such as extending the apology provisions in the pre-action protocol for the resolution of clinical disputes to cover more claims of tortious liability via other pre-action protocols.

The consultation follows a private members’ bill introduced by Conservative MP John Howell in 2020 that failed to complete its passage through Parliament, but received confirmation that the government would consult when time allowed.

Mr Howell said: “It should be the mark of both a mature democratic society, and, of its dispute resolution system, that an apology, whether made publicly or privately, can and should be allowed to be meaningful, and, helpful rather than simply a necessary yet tokenistic gesture.”

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