This is guest article was provided to us by Raphael Amyrotos, paralegal in the Abuse Claims team at Bolt Burdon Kemp.
Does the law on apologies need to change?
It might sound like a strange thing to legislate but for abuse survivors, hearing the words ‘I’m sorry’ can be a pivotal turning point in recovery which leads to a positive new life path.
Yet, people are afraid to apologise for fear of admitting guilt and liability.
Bolt Burdon Kemp is currently preparing a response to a new consultation on the Compensation Act which could change the law regarding apologies in civil proceedings in England and Wales. So here we explore the power of apology, where things stand now and what might happen in the future.
The importance of apology in survivor healing
At its core, abuse involves the misuse of power and control by one individual over another, leading to deep violations of dignity and trust. Survivors of abuse can experience intense feelings of fear, powerlessness, shame, and isolation with psychological scars that can endure for years, affecting the survivor’s sense of self-worth, trust in others, and overall well-being. Overcoming the trauma of abuse is an arduous journey, requiring immense courage and support.
Often central to the healing process for survivors of abuse is the receipt of a genuine and meaningful apology from the perpetrator(s) or the entities complicit in the abuse. An apology is not merely a formality; it is a moral imperative that carries profound significance for the survivor’s journey towards healing and recovery.
- Validation and acknowledgement: An apology serves as a crucial acknowledgement of the survivor’s pain and suffering. It validates the survivor’s experience and affirms that their trauma is real and deserving of recognition. This validation can be immensely empowering, helping survivors reclaim their sense of dignity and self-worth.
- Restoration of agency: Abuse often robs survivors of their agency and sense of control. A sincere apology restores agency by acknowledging the survivor’s right to be treated with respect and dignity. It shifts the narrative from victimisation to empowerment, enabling survivors to reclaim ownership over their narrative and healing journey.
- Promotion of accountability: Apologies promote accountability by holding perpetrators and institutions responsible for their actions. They send a powerful message that abuse is unacceptable and those responsible must face consequences for their behaviour. This accountability is essential not only for individual healing but also for preventing future instances of abuse.
- Facilitation of closure: Closure is a complex and deeply personal process for survivors of abuse. An apology plays a pivotal role in facilitating closure by addressing unresolved emotions and enabling survivors to let go of feelings of resentment and anger. It allows survivors to move forward with their lives, free from the burden of unaddressed trauma.
How we assist survivors of abuse
At Bolt Burdon Kemp, we are committed to supporting survivors of abuse in their pursuit of justice and healing. Our team of specialist abuse claims solicitors understand the sensitivity and complexity of abuse cases, providing compassionate and comprehensive legal assistance to survivors seeking compensation and acknowledgement.
- Legal guidance and expertise: Our experienced abuse solicitors offer expert legal guidance throughout the claims process, ensuring survivors understand their rights and options. We handle each case with sensitivity, empathy, and compassion, prioritising the survivor’s well-being and needs.
- Advocacy for accountability: We advocate vigorously for survivors, holding perpetrators and institutions accountable for their actions. Our goal is to secure justice and acknowledgement for the harm inflicted upon survivors, promoting systemic change to prevent future instances of abuse.
- Supportive and empathetic approach: Recognising the emotional toll of abuse, we provide a supportive and empathetic environment for survivors. We listen attentively to their experiences, tailoring our approach to meet their unique needs and preferences.
- Campaigning for change: Beyond individual cases, we campaign for legal reforms that prioritise survivors’ rights and ensure perpetrators and institutions are held accountable. We work tirelessly to promote a culture of accountability and respect for survivors of abuse.
Apologies: The law in England and Wales and other comparative jurisdictions
The law in England and Wales regarding apologies and their legal implications in the context of civil litigation is nuanced and evolving.
Historically, there has been a concern an apology could be construed as an admission of liability by a defendant in civil proceedings, thereby potentially exposing the apologiser to legal consequences. However, with developments in common law and specific statutory provisions like Section 2 of the Compensation Act, the landscape shifted to encourage sincere apologies without automatically assuming liability.
Under common law principles, an apology in itself does not necessarily constitute an admission of liability. The crucial factor is the wording and context of the apology. If an apology clearly accepts fault or wrongdoing, it may indeed be treated as an admission of liability and used against the apologiser in legal proceedings. However, if an apology is expressed in a more general or empathetic manner, acknowledging harm or distress without admitting legal fault, it is less likely to be interpreted as an admission of liability.
Section 2 of the Compensation Act further reinforces this principle. It explicitly states that an apology, offer of treatment, or other redress does not, by itself, amount to an admission of negligence or breach of statutory duty. This legislative provision was introduced to remove barriers that deterred businesses, insurers, and organisations from offering apologies due to fear of legal repercussions.
Despite these legal safeguards, there remains a degree of caution among defendants, including public bodies and institutions, when issuing apologies. This caution stems from concerns that even well-intentioned apologies might be misconstrued or exploited in civil litigation. There is also apprehension that an apology could jeopardise insurance coverage.
It is important to note, however, that the Compensation Act does not define what constitutes an apology, leaving room for interpretation. This lack of a clear definition contributes to ongoing uncertainty and cautious behaviour among potential apologisers.
The efficacy and impact of the law, as outlined in Section 2 of the Compensation Act, have not been extensively documented or studied empirically. Anecdotal evidence suggests defendants remain hesitant to offer apologies due to lingering fears of legal ramifications, despite the legal protections afforded by the statute.
The law in Scotland
The law in Scotland, specifically concerning apologies in civil proceedings, is defined by the Scotland Apologies Act 2016. This legislation was passed by the Scottish Parliament to provide legal clarity and encourage the use of apologies in resolving disputes without fear of legal repercussions.
Under the Scotland Apologies Act, an apology made in connection with any matter is deemed inadmissible as evidence in civil proceedings. This means a statement expressing regret or sorrow for an act, omission, or outcome, along with a commitment to prevent a recurrence, cannot be used against the apologising party to determine liability in a legal case.
The Act applies broadly to civil proceedings but excludes certain types such as defamation and public inquiries. The exemption for public inquiries recognises their investigative nature, where all relevant events, including apologies, can contribute to establishing facts rather than assigning blame.
The primary objective of this legislation is to promote a culture of openness and reconciliation by removing legal disincentives to offering apologies. By ensuring apologies cannot be used against the apologising party in civil proceedings, the Scotland Apologies Act aims to facilitate resolution and encourage constructive dialogue in dispute resolution processes.
Although the precise impact of the Scotland Apologies Act has not been definitively quantified by the Scottish Government, it is recognised to have had a relatively low but positive effect in fostering a more cooperative and conciliatory approach to resolving civil disputes in Scotland.
The Scotland Apologies Act 2016 represents a significant step forward in promoting a culture of openness and reconciliation within civil proceedings by removing legal disincentives to offering apologies. The Act deems apologies inadmissible as evidence in civil proceedings, thereby encouraging parties to express regret or sorrow without fear of such expressions being used against them to determine liability.
Should Scotland’s law on apologies be introduced in England and Wales?
Reflecting on the approach taken by the Scotland Apologies Act, there are compelling reasons to consider adopting similar legislation in other jurisdictions, including England and Wales. Here are key arguments supporting this view:
Firstly, promoting a culture of apology can enhance dispute-resolution processes by facilitating open communication and constructive dialogue between parties. Removing the legal risk associated with apologies encourages parties to acknowledge harm or distress and explore resolutions without the fear of legal consequences solely based on their expressions of regret.
Secondly, the legislation recognises the distinction between an expression of regret and an admission of legal liability. This nuanced approach aligns with modern legal principles that acknowledge the value of sincere apologies in addressing grievances and fostering amicable resolutions.
Moreover, the legislation reflects a progressive attitude towards accountability and reconciliation. By safeguarding apologies from being misinterpreted or exploited in legal proceedings, the Act encourages responsible behaviour and promotes a more cooperative approach to resolving disputes.
However, it is essential to consider the specific context and legal landscape of each jurisdiction. While adopting legislation akin to the Scotland Apologies Act can be beneficial, careful consideration must be given to address any unique challenges or concerns that may arise in different legal frameworks.
Proposals for reform in England and Wales
In December 2020, John Howell MP introduced the Apologies Bill to encourage the use of apologies in settling civil disputes and preventing conflicts.
The bill aimed to establish a straightforward legal mechanism that would incentivise parties to offer apologies promptly after incidents or during disputes to achieve more amicable resolutions.
Mr Howell commended the Scottish Government’s similar legislative approach to this issue. Although the bill did not pass before the end of the 2019–21 session, its goal was to promote the positive impact of apologies in resolving disputes.
The Independent Inquiry on Child Sexual Abuse (“the Inquiry”)
The Inquiry into Accountability and Reparations, in its investigation report from September 2019, recommended revising the Compensation Act 2006 to explicitly allow institutions vicariously liable for child sexual abuse to make apologies, offer treatment, or provide redress without compromising their defence against civil claims. This recommendation was made due to concerns that the current wording of the Compensation Act might not apply to claims involving vicarious liability, which is often the basis for child sexual abuse claims against institutions.
Vicarious liability, also known as imputed liability, is a legal concept that holds a person or entity accountable for the actions of another, typically in employee-employer relationships. This means that although the person or entity did not directly cause the harm, they are held responsible due to their superior legal relationship to the person who did cause the harm. To establish vicarious liability, it must be proven that the employee was working under the authority of the employer, the employer had control over the employee, and the actions of the employee were within the scope of their employment at the time of the incident.
Section 2 of the Compensation Act, which relates to apologies in cases of negligence or breach of statutory duty, does not clearly include vicarious liability claims. This ambiguity has led to uncertainty about whether courts would apply this provision in abuse cases where vicarious liability is alleged.
In vicarious liability claims, two criteria must be met: a qualifying relationship between the defendant and the abuser, and a qualifying connection between this relationship and the abuse. Some defendants have interpreted the Compensation Act to cover vicarious liability claims, but there remains confusion among insurers and others involved in the legal process.
The Inquiry suggested clarifying the applicability of Section 2 to vicarious liability cases through legislation would encourage meaningful apologies from defendant institutions by placing this issue on a statutory basis.
In response to the Inquiry, the Government expressed interest in exploring whether amending the Compensation Act or taking other actions would help clarify its application in the identified circumstances.
The broader issue of vicarious liability in historic child sexual abuse claims has been complex and subject to multiple Supreme Court judgments. The specific focus of the consultation paper is whether the Compensation Act’s provisions on apologies should explicitly cover vicarious liability cases.
Impacts on claimants and defendants
If the Government proceeds with the consultation proposals, there could be implications for both those giving and receiving apologies.
The potential legislative reform to the Compensation Act aims to provide legal certainty regarding the status of apologies, particularly in relation to child sexual abuse claims, and to remove any perceived or actual barriers to offering apologies.
This may encourage a culture of early apologies and could potentially reduce the need for formal legal proceedings.
However, any changes to the Compensation Act will not compel defendants to offer apologies beyond their current obligations, and liability-free apologies will continue to be non-admissions of liability.
Additionally, the proposals will not prevent individuals or organisations from pursuing complaints or civil litigation if they choose to seek compensation or address other issues through legal action.
Conclusion and next steps
In conclusion, abuse is a profound violation of trust and dignity that leaves enduring emotional and psychological wounds. An abuse claim is a vital step towards seeking justice and validation for survivors’ suffering. Central to survivor healing is the receipt of a sincere apology, which validates their experiences, restores agency, promotes accountability and facilitates closure.
At Bolt Burdon Kemp, we stand by survivors of abuse, offering expert legal assistance, compassionate support, and advocacy for systemic change.
Together, let us work towards a future where survivors of abuse receive the acknowledgement, justice, and healing they rightfully deserve. This is why we will be participating in the consultation.
If you would like help discussing the different routes to justice, you can contact the abuse team at Bolt Burdon Kemp any time for some free and confidential advice on the right option for you.
https://www.boltburdonkemp.co.uk/why-bolt-burdon-kemp-bbk-solicitors/meet-our-team/#abuse-claims