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.

The reforms will move forward ‘when parliamentary time permits’, with additional guidance expected once the new legislation is in place.

Our thoughts in terms of the healthcare/medical/clinical negligence setting 

When the duty of candour was first introduced, bold promises were made regarding transparency and openness. Under this duty, healthcare professionals are required to offer an apology when something goes wrong with a patient’s treatment. According to the Care Quality Commission’s guidance: ‘A crucial part of the duty of candour is the apology. Apologising is not an admission of liability [...]. In many cases, it is the lack of a timely apology that drives people to pursue legal action. To fulfil the duty of candour, you must apologise for the harm caused, regardless of fault, and be open and transparent about what has happened.’

Despite the legal framework already in place under the Compensation Act 2006 and the duty of candour, in our experience, apologies remain far less common than one might expect. Those we have received have often come only after persistent requests or long delays, sometimes years after the incident took place. The delivery of the apology also varies widely, with many so poorly drafted that they serve only to inflame the position. Based on our experience, the duty of candour is still not consistently applied and the role of the apology within it is often misunderstood.

An apology plays a crucial role in helping claimants seek justice. It can aid a claimant’s emotional recovery, assist in their ability to move forward and can make legal proceedings less difficult to deal with. The significance of a genuine apology should not be underestimated.

In the MoJ’s initial consultation document, it was stated that: ‘A significant example is in clinical negligence, where sincere, unreserved apologies have the potential to avoid litigation altogether. In some cases, a simple “sorry” may be what the claimant most wanted.’ However, we think this statement significantly underplays the true harm caused by clinical negligence. Our clients suffer often catastrophic injuries that result in lifelong care needs and permanent disability, leaving them unable to work again. Whilst an apology may aid the process of healing from that harm, it will not address the profound and lasting impact of the negligence.

As one respondent in the response to the consultation stated: ‘legislative reforms like the Scotland (Apologies) Act 2016 would be no more effective than the existing Compensation Act 2006 in reducing litigation’. They believe that ‘proper investigations, which acknowledged any failings in the care provided and properly addressed change to prevent or minimise the same failings recurring, were more likely to be effective in heading off litigation’. We believe the reality is that a centralised review of the multiple inquiries that have been held into disparate NHS trusts over the last decade which pulls together the many common themes would be the most cost-effective way of reducing litigation.

Conclusion

Caution will be required when it comes to defining an apology. It will be crucial not to be overly prescriptive. We believe that it is more important for an apology to be sincere and honest, otherwise, an apology will lack genuine meaning, fail to serve its true purpose and will ultimately become meaningless.

The proposed reforms are a step forward, but we remain cautious. A heartfelt apology, accompanied by transparency, a willingness to provide answers and assurance that lessons have been learned will always be welcomed.