The Government has published its response to a consultation carried out by the Ministry of Justice on reforming the law of apologies in civil proceedings in England and Wales.

We previously commented on the consultation here. It followed the publication of the Independent Inquiry on Child Sexual Abuse in 2019 which recommended, among other things, that the existing law on apologies be expanded to cover vicarious liability.

As it stands, the Compensation Act 2006 provides a mechanism whereby defendants in certain types of claims can issue apologies without compromising their defence or admitting liability. The consultation sought views on whether to implement the Inquiry’s recommendation and extend the scope of the Act to include cases involving vicarious liability. In addition, it considered the efficacy of the Act more broadly in the light of evidence that parties were not taking advantage of its provisions out of fear that issuing an apology might be relied upon in civil litigation as an admission of liability. It sought views, for example, on whether to follow the approach in Scotland where the relevant equivalent legislation provides a definition of an apology, grants an apology legal protection, and sets out the effect of an apology in legal proceedings.

The Government’s response summarises the views that were submitted and notes that “all respondents believed that the use of apologies in civil litigation is intrinsically a good thing and saw it as having potential benefits. There was general support for additional guidance and communications on the use of apologies in legal terms, as well as an interest in more being done via pre-action procedures and utilising alternative dispute resolution (ADR)”.

It also states that a large number of respondents were supportive of the Compensation Act 2006 being expanded to cover vicarious liability. Equally, whilst views were “mixed” on adopting the Scottish model, there was broad support for changes to the legislation and in particular for it to include a statutory definition of an apology.

In response, the Government has said that it believes that it would be “reasonable and sensible to make some modest reforms to encourage greater use of apologies. This is because the use of apologies can have a positive effect on the civil dispute process, and this was a theme supported by responses to the consultation”.

Such changes include amending the law “to provide additional clarity that offering an apology does not represent admitting liability in a wider range of cases”. However, the Government makes clear that the law of apologies will not apply to all types of civil litigation or regulatory disputes (the obvious example being defamation cases).

The Government has also confirmed that vicarious liability cases will be covered in the amendments to the legislation. Furthermore, whilst it commits to providing a clear definition of an apology, it points to the need for care when drafting the legislation “to avoid the risk of over-defining apologies”.

Finally, echoing the sentiment of many who responded to the consultation, the new legislation will not be retrospective since, as the Government explains, “a belated apology may ring hollow and is unlikely to be offered”.

Primary legislation will be introduced when parliamentary time allows. Following its implementation, the Government has stated that it sees merit in publishing further guidance and undertaking additional work on the use of apologies in pre-action protocols.

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