Reforming the law of apologies in civil proceedings in England and Wales

In April 2024, the Ministry of Justice (MoJ) launched a consultation into clarifying the law surrounding apologies in civil claims to encourage organisations to apologise more, its response was published in February this year.

The consultation followed a recommendation by the Independent Inquiry on Child Sexual Abuse that apologies should be offered by institutions and public bodies who are in positions of vicarious liability for abuse. The Compensation Act does not currently state whether vicarious liability is also within scope, which is now the main basis on which child sexual abuse claims are brought.

Section 2 of the Compensation Act 2006 does provide that public institutions can provide an apology without admitting liability in civil proceedings (this would apply for example, to clinical negligence claims). It states ‘an apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty’. Despite this, in our experience defendants remain reluctant to offer apologies. The MoJ accepted in their call for evidence that that there is ‘little empirical evidence to suggest how effective current legislation is’. 

The consultation, response and proposed reform 

The consultation sought to gather views on how apologies should be treated in legal contexts. The response issued by the MoJ outlines the feedback received and the proposed changes to the existing legal framework.

There was a clear consensus that apologies in civil litigation are beneficial, but they are often underutilised because of uncertainty over the legal implications. The majority of respondents supported the need for clearer guidance. Many agreed that greater use of apologies could be fostered through changes to the pre-action protocol and utilising alternative dispute resolution (ADR). There was broad support overall for a clearer definition of an apology.

A key concern raised was that apologies are underutilised due to fears that they may undermine a defendant’s ability to defend claims. The broad consensus was that in any amendments or proposed reforms it needs to be clear that an apology should not amount to an admission of vicarious liability, negligence or a breach of statutory duty.

Ultimately, the government has committed to reforming the law to encourage greater use of apologies. Section 2 of the Compensation Act already expressly states that an apology shall not of itself amount to an admission of negligence or breach of statutory duty. However, the government has decided to pursue reform by means of primary legislation because amending the law affords the opportunity to provide additional clarity. As part of the reforms, the government is proposing to include a clear definition of an apology, which will reduce uncertainty over the distinction between an apology and an admission of liability, but it is recognised that care will be needed when drafting the legislation to avoid the risk of over-defining an apology.