30 December, 2016
At the end of November 2016, and after two rounds of public consultation, the Department of Justice’s Steering Committee on Mediation (Steering Committee) published the “Enactment of Apology Legislation in Hong Kong :
Final Report & Recommendations”. The report details responses received during the second round of consultation, the Steering Committees’ comments on the responses and its final recommendations, together with the latest draft of the Apology Bill. The Department of Justice has confirmed that it agrees the recommendations and is seeking to introduce the apology legislation in the 2016-2017 legislative year. The aim of the legislation is to clarify the legal consequences of a party to a dispute making an apology and to promote and encourage apologies, with a view to preventing the escalation of disputes and instead facilitating their amicable resolution.
The rationale behind the proposed legislation is that a party to a dispute or person who has caused injury to another should be able to apologise, without fear that the apology will be used against them in any civil proceedings, as an admission of fault for the purpose of establishing legal liability. Sometimes, a person who genuinely believes that he has done nothing wrong may still wish to apologise in order to convey his condolences or sympathy to the injured party out of good will.
Further, a party may have concerns that an insurance policy covering an incident giving rise to the dispute may be rendered void or be otherwise adversely affected by an apology because of clauses in the policy prohibiting an admission of fault by the insured.
It is thought that the reluctance to apologise is due to the absence of legislation that would prevent liability being founded on an apology. The hope is that the heat of the moment commonly found in disputes can be extinguished (or at least diminished) by an apology, preventing a dispute from escalating into legal proceedings or, where proceedings are commenced, making it easier for them to be settled.
Draft Apology Bill
The latest draft of the Apology Bill reflects the Steering Committees’ final recommendations and provides as follows. This draft is for general reference only and may not be the final version, if the legislation is introduced.
Meaning of “apology”
The draft Bill defines an “apology” given by a person in connection with a matter as an expression (which can be oral, written or by conduct) of the person’s regret, sympathy or benevolence in connection with the matter, and including, for example, an expression that the person is sorry about the matter. The apology also includes any part of the expression that is (a) an express/implied admission of the person’s fault or liability in connection with the matter; or (b) a statement of fact in connection with the matter. A reference to an apology made by a person also includes an apology made on behalf of the person.
The rationale for protecting statements of fact in an apology, is that by doing so, a person may be encouraged to make a fuller and more meaningful apology. Such fuller apology, it is thought, will help parties to understand the root cause or underlying circumstances of the incident and thereby facilitate settlement.
Apology to which Ordinance will apply
The Apology Ordinance will apply to an apology made on/after commencement of the Ordinance, regardless of whether (i) the matter arose before or after that date; or (ii) the applicable proceedings concerning the matter began before or after that date.
Apology to which Ordinance will not apply
The Apology Ordinance will not to apply to:
(a) an apology made by a person in a document filed/submitted in applicable proceedings;
(b) an apology made by a person in a testimony submission, or similar oral statement, given at a hearing of applicable proceedings; or
(c) an apology adduced as evidence in applicable proceedings by, or with consent of, the person who made it.
This means that an apology may be taken into account in the proceedings if the apology maker so decides.
Proceedings to which Ordinance will apply
The Apology Ordinance will apply to the following “applicable proceedings”:
(a) judicial, arbitral, administrative, disciplinary and regulatory proceedings (whether or not conducted under an enactment);
(b) other proceedings conducted under an enactment.
Proceedings to which the Ordinance will not apply
The Apology Ordinance will not apply to:
(a) criminal proceedings;
(b) proceedings specified in a Schedule to the Ordinance. The Schedule in the draft Bill currently includes proceedings conducted under the Commissions of Inquiry Ordinance (Cap 86), Coroners’ Ordinance (Cap 504) and
Control of Obscene and Indecent Articles Ordinance (Cap 390).
The objective of the proposed legislation is to facilitate settlement of a dispute and will not apply to criminal proceedings, which serve to punish individuals and deter them from committing criminal offences. The reason for excluding the Commissions of Inquiry Ordinance and Coroners’ Ordinance is that proceedings under those Ordinances are fact-finding in nature and do not involve any determination of liability.
As regards the Control of Obscene and Indecent Articles Ordinance, the Obscene Articles Tribunal (OAT) has two functions. One function is an administrative function, under which the OAT is required to give an opinion as to whether an article is indecent or obscene, which is similar to a fact finding exercise, in that it does not directly lead to any criminal or civil liability. The other function is a judicial function under which the OAT is required to address the question of obscenity or indecency in the context of court proceedings, whether criminal or civil. As regards criminal proceedings, the apology legislation will not apply, as it is only to apply to civil or other forms of non-criminal proceedings, whereas it should apply to civil proceedings before the OAT. As this may cause confusion, it was decided that there should be a wholesale exclusion of OAT proceedings from the apology legislation.
Effect of apology for purposes of applicable proceedings
An apology made for the purpose of the applicable proceedings:
(a) does not constitute an express or implied admission of the person’s fault/liability in connection with the matter; and
(b) must not be taken into account in determining fault or liability or any other issue in connection with the matter to the prejudice of the person.
Admissibility of evidence of apology
At the moment, an apology can be admitted into evidence in civil proceedings in order to prove matters stated in the apology for the purpose of establishing legal liability. The proposed legislation will change this, by providing that evidence of a person’s apology is inadmissible for determining fault, liability or any other issue to the prejudice of the apology maker.
Effect of apology on the Limitation Ordinance
An apology will not to constitute a Limitation Ordinance acknowledgement within the meaning of section 23 of that Ordinance. Under section 23, the limitation periods for certain causes of action e.g. debts, may be extended by an acknowledgement of the claim in issue. The draft Bill states that an apology will not constitute such acknowledgement and will not, therefore, extend the limitation period in question.
Effect of apology on insurance/indemnity
An apology will not render any insurance cover void or otherwise affect the insurance cover under a contract of insurance or indemnity, regardless of whether the contract of insurance or indemnity was entered into before or after the Apology Ordinance comes into effect. Further, contracting out of the apology legislation is not to be permitted.
Application to the Government
The Apology Ordinance will apply to the Government. It is recognized that the reluctance of parties causing injury to apologise or express regret or sympathy to the injured party is not confined to private individuals or commercial entities, but extends to public officials and civil servants acting in their official capacities, who may be similarly concerned with the legal implications of an apology or expression of regret. It is thought to be clearly in the public interest that the proposed legislation apply to the Government.
Matters not affected
The Bill provides that the following matters will not be affected by the proposed legislation:
- Discovery or similar procedures in which the parties are required to disclose documents in their possession, custody or power.
- Operation of the provisions relating to apologies under the Defamation Ordinance.
- Operation of the Mediation Ordinance, which provides that a mediation communication (which may contain an apology) may be disclosed for certain purposes, or admitted in evidence in proceedings, only with leave of a specified court or tribunal.
Next Step
As mentioned above, the Department of Justice intends to introduce the apology legislation in the legislative year 2016-2017. We will monitor the progress of the Bill and report further developments in future articles.
For further information, please contact:
Karen Menon, Deacons
