Reforming the law of apologies: why apologies matter and how they could be made

On 8 April 2024 the Ministry of Justice (MoJ) launched a consultation on clarifying the law to encourage organisations to apologise more.

Section 2 of the Compensation Act 2006 states 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. However, the MoJ point out that there is little evidence that since its enactment organisations are using apologies as a form of reparation. There is a sense that defendants are averse to offering apologies perhaps out of concern it will prejudice their position in some way. In abuse cases survivors say that this often leaves them without closure.

The Independent Inquiry into Child Sexual Abuse found that survivors considered an apology to be equally or more important than receiving compensation and that an acknowledgment of the abuse provided recognition and closure. It recommended the government introduce legislation revising the Compensation Act 2006 to make it clear that apologies, offers of treatment and other redress would not undermine a defendant organisation’s ability to defend civil claims.

The consultation

The consultation considers whether the existing legislation is adequate, or whether clarification or amendment would be useful. It also seeks views on how apologies should be applied in cases of child sexual abuse and how improvements could support survivors and spare them lengthy court disputes.

Healthcare providers are already required to provide an apology as part of the statutory duty of candour when an incident is investigated by the organisation. The difficulty in historic abuse cases is that, in many cases, the first notification is when a claim is made many years later. The claim is brought under the principles of vicarious liability and the abuser is no longer available to answer the accusations. Further, often there is nobody working in the organisation who was there at the relevant time.  

Insurers and their insureds could work together to ensure that meaningful apologies are provided, where appropriate. This includes cases where an organisation is vicariously liable in circumstances where they may reasonably have been unaware of the abuse until the claim was made. Such apologies could be included in the letter of response, even where liability is denied. All abuse is regrettable and there should be no difficulty in apologising, where appropriate. This would certainly be very welcomed by claimants.

Any changes to the Act will not compel a defendant organisation to make an apology, or prevent a victim from bringing a complaint or claim.

In the alternative to legislation, consideration will be given to extending the apology provisions in the pre-action protocols or to providing guidance in relation to other civil claims. In our view, the latter is more likely, involving less parliamentary time.

The consultation is aimed at all those with an interest in civil proceedings in England and Wales (Scotland having already introduced the Apologies (Scotland) Act 2016 which is more detailed than the Compensation Act 2006) including litigants, legal professionals representing both claimants and defendants and the insurance industry.

Read other items in Personal Injury Brief - June 2024