Impact on insurance
Amid much coverage, on July 13 2017 the Hong Kong Legislative Council passed the Apology Bill with the aim of removing certain legal disincentives for parties to convey an apology in the context of civil disputes. The Apology Ordinance (Cap 631) has symbolic importance. In the footsteps of many overseas jurisdictions which have already adopted apology legislation (eg, Canada and Australia), Hong Kong is the first Asian jurisdiction to enact this type of legislation, which generally precludes an apology from being taken into account in the determination of fault and liability. That said, except for certain claims involving (for example) clinical negligence or alleged fault on the part of government departments, it may transpire that many defendants are still cautious about offering apologies.
The Apology Ordinance targets situations in which a plaintiff or complainant in civil or most other non-criminal proceedings (eg, arbitral, administrative, disciplinary and regulatory proceedings) might seek to admit into evidence an apology from the defendant for the purpose of proving legal liability.
Previously, despite a lack of authority over the legal consequences for apology makers, there was a general concern that a court or tribunal might infer liability or draw adverse conclusions from an apology (especially one bearing an admission of fault). This may have contributed to a general reluctance on the part of some defendants to apologise when issues of liability had yet to be determined.
Under the Apology Ordinance, an 'apology' (broadly defined as any expression of a person's regret, sympathy or benevolence in connection with a dispute) will not constitute an admission of fault or liability and will generally not be admissible as evidence to the detriment of the apology maker.
By alleviating the fear that an apology will be treated as an admission of liability, the Apology Ordinance aims to use apology as an effective tool in dispute resolution and to promote amicable settlement where there is potential for civil disputes to arise.
The Hong Kong regime offers relatively extensive protection to apologies made. Most notably, the Apology Ordinance protects 'full apologies' (ie, an apology that admits fault or implies an admission of fault) in addition to 'partial apologies' (ie, an apology that does not include an admission or acknowledgement of fault).(1) In this context, an apology may be in writing, verbal or by conduct, but the legislation does not apply to an apology made in a court document.
The operation of the Apology Ordinance extends further, in that statements of facts included in an apology will generally be inadmissible in evidence. Only in exceptional cases may a court or tribunal, having regard to all of the relevant circumstances, exercise its discretion to admit a statement of fact contained in an apology as evidence. Until more is known, it remains to be seen how this discretion will be exercised in practice.
In many foreign jurisdictions where apology legislation applies, only partial apologies are protected and the courts will, in appropriate cases, isolate any statements of fact from an apology and admit such statements as evidence to the detriment of the apology maker. For instance, in the Canadian case of Robinson v Cragg(2) a court in Alberta held that while the admission of fault or expression of regret in a letter was inadmissible and should be redacted, the factual underpinnings and other admission of facts in the letter were not protected by the apology legislation.
Insurance policies often prohibit the admission of fault by the insured. Due to the fear of a potential loss of insurance coverage, apologies are rarely made where issues of insurance coverage may be involved. Insureds are quite rightly careful.
In order to address this issue, the Apology Ordinance expressly provides that an apology does not adversely affect or void any insurance coverage, compensation or other benefits that are, or would be, available to any person under the insurance policy.(3)
By eliminating the disincentive to apologise and the potential adverse impact on insurance coverage, the Apology Ordinance aims to facilitate settlement and achieve the underlying purpose of the apology legislation, even where an issue of insurance coverage may be involved.
While the legislation has been passed, it comes into operation on a date yet to be announced (thought to be later this year).(4)
Historically, defendants or respondent parties in civil disputes are often advised not to offer apologies amid concerns over the legal ramifications. The Apology Ordinance seeks to address this issue by removing the evidential value of apologies offered.
In offering protection over both full and partial apologies, the Apology Ordinance removes some of the uncertainties associated with determining whether an apology (or any part thereof) constitutes an admission of fault or an admission of fact, compared with jurisdictions which do not offer protection for full apologies.
The Apology Ordinance also seeks to alleviate concerns that an insurance policy may be adversely affected by an apology or admission of fault by the insured.
In comparison with its foreign counterparts, the Apology Ordinance provides for wide and comprehensive coverage over any expression of regret or sympathy offered by an apology maker.
The extensive protection of the Apology Ordinance does, however, raise a concern that some plaintiffs or complainants in civil or other non-criminal proceedings may be deprived of an opportunity to adduce all available evidence before a court of law. Indeed, in certain cases, the statements contained in an apology may be the best evidence of the defendant's liability. Nevertheless, while an admission of fault associated with an apology may not be admissible in proceedings in Hong Kong, it could put the plaintiff or complainant on a train of inquiry.
Despite the symbolic importance of the Apology Ordinance, it may transpire that many parties facing claims against them will be reluctant to apologise formally, other than in the most straightforward cases. Legislation will not necessarily change a risk-averse mindset and parties to disputes involving significant claims or reputational issues are usually conscious that lawyers may be watching.
For further information on this topic please contact Mark So or Gary Yin at RPC by telephone (+852 2216 7000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
(1) Section 4 of the ordinance.
(3) Section 10 of the ordinance.
(4) In the meantime, it is anticipated that the government will prepare a public education programme.