Sorry seems to be the hardest word… changes afoot for the law of apologies

The role of an apology has long been a delicate balance, navigating the complex interplay between genuine human remorse and legal liability. For decades, a chilling effect has often prevailed, where the fear of an apology being construed as an admission of fault has deterred individuals and organisations from expressing regret, even when a sincere apology could significantly aid in resolving disputes and promoting healing.

In February 2025, the government published its response to a review into the use of apologies in civil proceedings. It acknowledged the need for clearer legislation to facilitate sincere apologies without admitting liability. The proposed reforms aim to: 

• clarify that apologies do not equate to admissions of liability; 

• encourage organisations to offer apologies, particularly in cases involving vicarious liability (such as instances where employees have committed wrongdoing); and 

• support victims, especially of child sexual abuse, in receiving apologies that can aid in the healing process.

As discussed in more detail below, the government’s response reflects a nuanced approach: recognising the broad benefits of encouraging apologies, addressing specific legal ambiguities, such as vicarious liability, and carefully delineating the scope of the reforms by excluding areas like defamation, where the legal implications of an apology are fundamentally different.

However, the success of these reforms hinges on their practical implementation. While the legislative intent is clear, the nuanced distinction between an apology and an admission of fault will inevitably face scrutiny in individual cases.

Background

The current law on apologies in England and Wales is encompassed in Section 2 of the Compensation Act 2006. It was introduced in an attempt to encourage open communication and a more conciliatory approach in dealing with complaints or disputes without the fear of being held liable. The Act 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.’

However, it was rarely ever used in practice. The lack of a clear statutory definition of an apology, coupled with concerns regarding its applicability in all civil contexts, particularly in cases involving vicarious liability, has created persistent ambiguity. This uncertainty has often undermined the very intention of the Act: to encourage open and honest communication that could potentially avoid protracted litigation.

In 2019, the Independent Inquiry on Child Sexual Abuse (IICSA) published a report in which it recommended 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 perpetuators.’

It was against this backdrop that, in 2024, the then-Conservative government launched the consultation to review the use of apologies in civil proceedings. The consultation focused on whether there were any changes that could be made to the existing legislative regime that would encourage parties to issue public apologies without fear of that apology being used against them in any ensuing civil litigation. The objective was to explore how the law could be amended to foster a more encouraging environment for apologies, thereby promoting early dispute resolution, reducing adversarial behaviour and, ultimately, ensuring that claimants receive the dignity and respect they deserve (particularly in cases involving child sexual abuse).

The consultation

The consultation sought to gather views from a wide array of stakeholders, including legal professionals, charities, academics and individuals with experience of the civil justice system. In part, it explored views on whether England and Wales should adopt wording similar to the Apologies (Scotland) Act 2016, which (1) provides legal protection in regard to an apology; (2) provides a definition of an apology; and (3) addresses the effect of an apology in legal proceedings. Section 1 of the Apologies (Scotland) Act 2016 provides: ‘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.’

The government’s response reflected a broad consensus regarding the intrinsic value and potential benefits of apologies in civil litigation. While the overall sentiment was positive, the feedback also highlighted specific areas of concern and nuances that guided the government’s proposed reforms.

The consultation considered that legislation to clarify the applicability of Section 2 of the Act to such cases would assist in encouraging the giving of apologies as it would place the matter on a statutory footing and resolve the question once and for all.

The government’s response

In summarising the responses received to the consultation, the government noted 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).’

The consultation received a diverse range of responses. Many respondents emphasised that a genuine apology can be a crucial part of the healing process for claimants, sometimes being as important as, or even more important than, financial compensation.

Despite this general support, there was an acknowledgement that the existing Section 2 of the Act had not fully achieved its aim of encouraging apologies. Respondents pointed to a lack of empirical evidence on its effectiveness and a continued reluctance among organisations to offer apologies, primarily due to the fear of inadvertently undermining their defence or admitting liability. This led to a majority of respondents advocating for some degree of amendment to the current legislation, with a strong preference for reform through new primary legislation rather than secondary legislation or rule changes, to signal a clear and significant shift in approach.

Defamation

One of the areas of discussion in the consultation was the applicability of apology reforms to different types of civil litigation. Critically, the government’s response makes clear that the new law of apologies will not apply to defamation cases. This exclusion reflects a recognition of the unique nature of defamation claims, where the very act of a statement (and any apology for it) goes to the core of the alleged harm (reputational damage) and the factual matrix of the case. The complexities of intent, meaning and public interest in defamation cases mean that a blanket ‘protected apology’ could create more issues than it solves in this specific area of law.

The IICSA and vicarious liability

The IICSA’s final report in 2022 highlighted that for many victims and survivors of child sexual abuse, an apology from the institution where the abuse occurred was crucial for their healing and sense of closure, yet such apologies were often not forthcoming due to institutional fears of vicarious liability.

The consultation specifically sought views on extending the scope of the Act to explicitly cover cases involving vicarious liability. The feedback overwhelmingly supported this extension. Respondents, particularly claimant groups and charities working with survivors, stressed the importance of organisations feeling able to apologise for the actions of their current or former employees without this being taken as an admission of fault in civil proceedings.

How do you define an ‘apology’

While the consultation received mixed views on whether the Scottish model provides a wholly satisfactory blueprint for England and Wales, there was broad support for the principle of defining an apology in statute to reduce legal uncertainty.

While the precise wording of the statutory definition will be set out in the forthcoming primary legislation, the government’s response indicates that it will aim to distinguish between:

• expressions of regret, sympathy or sorrow: these are core elements of an apology and the legislative intention is to protect these statements from being used as admissions of liability; and

• statements of fact related to the incident: the consultation acknowledged that an apology might naturally include factual information about what occurred. The challenge, and the aim of the definition, is to ensure that conveying such facts as part of an apology does not automatically equate to an admission of fault.

Comment

The government’s response represents a commendable step towards fostering a more empathetic and efficient civil justice system. The proposed changes, particularly the statutory definition of an apology and the explicit inclusion of vicarious liability, address long-standing ambiguities that have hindered the candid use of apologies.

In our view, these reforms hold significant promise. By providing a clear framework that distinguishes a genuine expression of regret from an admission of liability, the government aims to alleviate the understandable apprehension that has historically deterred individuals and organisations from offering apologies. This clarity could unlock the immense potential of apologies as a tool for dispute resolution, potentially reducing the need for costly and protracted litigation. 

Legal practitioners will need to be adept at advising clients on how to formulate apologies that align with the new statutory definition without inadvertently creating unintended admissions. Furthermore, the effectiveness of the new legislation will depend on its ability to truly change the prevailing culture of caution. It will require continued guidance and training for all stakeholders, including legal professionals, insurers and organisations, to ensure that the spirit of the reforms is embraced, not just the letter of the law.

Ultimately, while the proposed changes offer a positive trajectory, their true impact will unfold over time. It is hoped that this legislative evolution will genuinely encourage sincere apologies, leading to earlier resolutions, reduced litigation and a civil justice system that is not only fair but also more humane.