Partner Abigail Healey examines the law of apologies in The Times

April 18, 2024

Following a recent consultation for the reform of the law in relation to apologies, Partner Abigail Healey discusses the proposed changes to the law and the impact on civil proceedings and reputation management.

Abigail’s article was published in The Times, 18 April 2024, and can be found here.

A Government consultation is exploring the law of apologies in England and Wales, to consider whether the existing legislation (the Compensation Act 2006) is suitable or should be amended, including to make it easier to apologise in the context of civil disputes.

A genuine apology can play an important role in the dispute resolution process, reducing adversarial behaviour and potentially avoiding escalation.  Given early, it may help avoid litigation altogether. For organisations, often the issue cannot be considered in the context of the dispute alone, given there may be wider reputational issues at stake.

Yet there is often a reluctance to apologise.  There may be many reasons for that, including the fear that it would or might constitute an admission of liability.  It is this aspect that the current consultation seeks to consider, in terms of whether there is sufficient protection against admissions.

In recent years, there have been numerous high profile PR disasters in which a refusal to apologise has caused long-term damage to a hitherto respected brand.  In one memorable example, Thomas Cook Group’s CEO said the company had “nothing to apologise for”, after two children died of carbon monoxide poisoning while on a family holiday.  It took a further nine years for the global travel group to apologise.  In such instances, the reputational damage suffered by the refusal to apologise may far exceed any sums payable in litigation.

The current law 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”.  While that provision is not all-encompassing, an apology under the existing common law does not of itself necessarily amount to an admission of liability.  The effect of an apology depends on its terms.  A carefully crafted apology can go a long way not only to avoid litigation, but to mitigate reputational damage more generally – and that can be done without any admission of liability.

One of the options under consideration is whether England should adopt the same law as in Scotland, which provides that an apology is not admissible as evidence and cannot be used in any way to the prejudice of the person who made the apology.  It is not clear, however, whether the introduction of this law in Scotland has materially shifted the dial in favour of the humble apology.

Whether or not any potential change in the law – following the Scotland model or otherwise – will change attitudes at board level remains to be seen.  Any debate about and focus on this issue, however, must be a positive step in that process.