Update on Apologies in Abuse Claims: The Government and IICSA

In April 2020 the Government provided its response to some of the recommendations made by the Independent Inquiry into Child Sexual Abuse (“IICSA”) from the Accountability and Reparations Investigation Report. One particular aspect of the Government’s response related to 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.

By way of background, 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 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 or action to clarify that the Act includes cases involving vicarious liability. However, at the time the Government’s response was published, IICSA were also due to make recommendations on limitation in abuse claims. The Government, therefore, took the view that it would be appropriate to address the issue of apologies and limitation at the same time. However, IICSA has since clarified that the outstanding recommendations which will include limitation would not be published until its final report in 2022.

Accordingly, the Government has confirmed that will no longer await IICSA’s recommendations on limitation, and instead will consult on the subject of apologies. In this respect, the Government now intends that the consultation on apologies in abuse claims “should run through the summer of 2022 with a response before the New Year”, following which the Government would then consider necessary substantive reform.