On 8 April 2024, the MoJ published details of its public consultation reforming the law of apologies in civil proceedings in England and Wales. The consultation paper seeks views on the role of apologies in civil proceedings in England and Wales, and whether legislative provisions to clarify or amend the current law would be useful. 

It considers in particular whether the existing legislation in section 2 of the Compensation Act 2006 (the Compensation Act) is adequate, or whether legislation along the lines of that in Scotland in the Apologies (Scotland) Act 2016 (the Scotland Apologies Act) would represent a helpful expansion and clarification of the law. It also considers and seeks views on a recommendation by IICSA on the role of apologies in civil proceedings relating to child sexual abuse.

The current law in England and Wales as set out in section 2 of the Compensation Act was designed to make it easier for individuals or organisations to apologise, without that apology constituting an admission of liability, it 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.” 

The intention was that Section 2 would have a broad application and would cover any claims where an admission of negligence or breach of statutory may be relevant, and whether at common law or otherwise. However, the Compensation Act did not include a definition of an apology and this may have contributed to a general reluctance to apologise, which may also be impacted by residual concerns that an apology may amount to an admission of liability and be relied upon in civil litigation and may also adversely impact insurance cover.

The consultation refers to the Scotland Apologies Act as the language used in that legislation is explicit and provides that:

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

More importantly however is the fact that the Scotland Apologies Act applies to all civil proceedings, apart from specified exceptions such as defamation and public inquiries and provides a definition of what is meant by an apology at Section 3, which states that:-

“In this Act an apology means 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”

While it is not clear whether the more explicit provisions of the Scotland Apologies Act have led to more apologies being made in Scotland, the general consensus is that similar provisions in England and Wales should encourage and/or increase the use of apologies in this jurisdiction.

The recently launched public consultation on apologies also honours the Government’s longstanding commitment made in April 2020 to act on the recommendation made by IICSA in its Accountability and Reparations investigation report in September 2019 that:

The government should introduce legislation revising the Compensation Act 2006 to  clarify that section 2 facilitates apologies or offers of treatment or other redress to victims and survivors of child sexual abuse by institutions that may be vicariously liable for the actions or omissions of other persons, including the perpetrators.”

While Section 2 of the Compensation Act refers to apologies in relation to negligence or breach of statutory duty, it does not explicitly make it clear that vicarious liability, which is the main basis on which child sexual abuse claims are now brought, is covered. In practice, while some defendants and defendant insurers have interpreted Section 2 as applying to vicarious liability claims and have acted accordingly, others have not felt able to make apologies to victims of child sexual abuse claims, based in vicarious liability, fearing that this would undermine their ability to defend the associated civil claim. 

IICSA felt that amending legislation should be introduced to make it clear that Section 2 of the Compensation Act covers vicarious liability so that there would be no further confusion on this issue in future and that victims and survivors of child sexual abuse, whose claims are often based on vicarious liability, would be able to receive a genuine and meaningful apology.

While the consultation notes the importance of meaningful apologies to victims and survivors of child sexual abuse in order to enable them deal with the impact of that abuse, it also remarks that although amending legislation may encourage and/or enable defendants and defendant insurers to provide apologies in the future, that does not mean that there will be more apologies in practice, as parties to litigation tend to proceed with an abundance of caution so as to not adversely affect outcomes.

The consultation closes on 3 June 2024.