Section 2 of the Compensation Act 2006 (Apologies, offers of treatment or other redress) was enacted to make it easier for organisations to apologise for their actions without admitting civil liability: it reads, “An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty”.

On 8 April, the Ministry of Justice launched a consultation, Reforming the Law of Apologies in Civil Proceedings in England and Wales to consider whether section 2  remains adequate or whether legislative provisions to clarify or amend the current law would be useful. The Ministerial Foreword includes the following:

“The current law is set out in section 2 of the Compensation Act 2006 (the Compensation Act) and aims to encourage those defending claims not to be deterred from offering apologies by a perception that doing so would constitute an admission of liability. While there is little empirical evidence to suggest how effective the current legislation is, the general view is that it has had very little impact as parties are understandably very averse to offering apologies for fear of liability being admitted.

This consultation, therefore, looks at the role of apologies generally within the sphere of civil justice and asks whether the Compensation Act is suitable or whether it should be replaced with new legislation, and if so, what the new regime should be.

One fundamental question is whether it should be easier to make an apology. There are points to be made on both sides. Some argue that protected apologies help settle cases early and so it should be easier to make one. On the other hand, others believe that the apology will not assist in the resolution and therefore that the desire for one need not be addressed in an apologies statute.

Given that there is little empirical evidence, either in England and Wales or abroad, we would be interested to know real world examples of apologies. In addition, we would also be interested to know whether any reformed legislation should broadly reflect the approach taken in the Apologies (Scotland) Act 2016?

In addition, this consultation also takes forward the recommendation by the Independent Inquiry into Child Sexual Abuse to consider amending the Compensation Act to make clear that the provision on apologies extends to cases involving vicarious liability for child sexual abuse.”

The consultation will close on 3 June.

Comment

The language of section 1 of the Scottish Act is possibly clearer in its terms than section 2 of the England & Wales Act:

“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.”

Given the consultation document’s references to IICSA and vicarious liability, the implications for some of the Churches in England and Wales are obvious; however, I am not competent to offer a view as to whether or not the current law needs amending.