On 8 April 2024, the Government announced that it will now review and consult upon the law of apologies in England and Wales. Patrick Williams, Associate in Keoghs Abuse team, discusses the proposals and considers the potential impact on abuse claims.
In September 2019, the Independent Inquiry into Child Sexual Abuse (IICSA) published its Accountability and Reparations Investigation Report (the Report).
In April 2020, the Government provided its response to some of the recommendations made by the Report, which included the sensitive issue of apologies and the circumstances in which any apology would constitute an admission of liability where an institution was potentially vicariously liable for the abuse committed upon a claimant. The Government confirmed that it would consult on the subject of apologies through the summer of 2022 with a response before the end of the year.
Notwithstanding the above, it was not until 8 April 2024 that the Government announced that it would now review and consult upon the law of apologies in England and Wales. The Government is seeking views on the role of apologies in civil proceedings in England and Wales generally, and whether any alternative or additional legislative provisions to clarify or amend the current law would be useful. The consultation is due to end on 3 June 2024.
Current law
Section 2 of the Compensation Act 2006 (the Act) currently provides 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, given the development of the law concerning non-recent abuse claims since 2006, a significant proportion of claims are now pursued in vicarious liability (rather than negligence or breach of any statutory duty). The absence of any mention of vicarious liability in the Act, therefore, created significant uncertainty and confusion for institutions as to whether an apology would, in fact, be deemed to constitute an admission of liability. The effect of this was that victims and survivors who sought apologies from institutions did not receive them on the basis that institutions were cautious about potentially prejudicing insurance cover if they gave an apology which was then relied upon in any civil claim as an admission of liability.
This issue was subject to some detailed scrutiny by IICSA which resulted in a recommendation that the Government should introduce legislation revising the Act “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 perpetrators”.
The Government responded to provide some helpful guidance and indicative views on the interpretation of the Act. In particular, the response indicated that section 2 of the Act was “intended to reflect the existing law and encourage businesses, insurers and other organisations not to be deterred from offering apologies by a perception that doing so would necessarily constitute an admission of liability”. Significantly, the Government stated that “the focus of the 2006 Act on claims in negligence and breach of statutory duty is not intended to suggest that the provision is only of relevance to those proceedings”. The Government’s response specifically referenced vicarious liability as being such common law cases to which the Act may equally apply. Accordingly, the Ministry of Justice was due to explore further whether it would be helpful to amend the Act or take action to clarify that the Act includes cases involving vicarious liability.
Consultation
In regard to the above, this consultation recognises that section 2 of the Act does not explicitly make it clear that it refers to apologies in relation to vicarious liability and, as such, there is uncertainty as to whether the courts would apply it in abuse claims.
Accordingly, for the purposes of this consultation, the issue in regard to abuse cases is simply whether the Compensation Act provision on apologies should be specifically extended to include vicarious liability cases.
The case for including vicarious liability cases in the Act has previously been set out by John Howell MP when introducing his Private Member’s Bill on 1 December 2020. He considered that: “Since parties may be reluctant to do anything that may be construed as an admission of liability, apologies have to date seemingly been sparse, except in cases of NHS clinical negligence. A culture has emerged of people and organisations not wanting to offer an apology in case it is detrimental to their legal position or deemed to be a weakness.”
In addition, the consultation considers IICSA’s emphasis on the importance for victims of abuse to receive genuine and meaningful apologies.
However, there are arguments that it should be recognised that whatever encouragement there is through legislation for an institution to provide an apology the effectiveness in practice may be limited due to litigation and an institution maintaining a degree of caution in those circumstances.
It is also argued that legislating purely for the purpose of clarifying the existing law, being without clear evidence the changes will have an impact, may not represent a worthwhile use of the legislative programme.
While a reform of apologies in abuse claims is long overdue, it may not in practice change the current position. However, it will provide much-needed legislative confirmation that an institution, if it wishes to do so, can provide an apology to a victim of abuse by their employee or an individual in a position ‘akin to employment’, without it being considered as evidence of an admission of liability. Accordingly, this is seen as a positive step from the Government in regard to apologies in abuse cases and it is hoped that reform will take place in order to provide much-needed clarity in the area of apologies in vicarious liability cases.
We, therefore, wait with anticipation for the end of the consultation and will report on any further developments.
For more information, please contact:
Patrick Williams, Associate
Email: PatrickWilliams@keoghs.co.uk
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