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1 November, 2017
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Introduction
The Apology Ordinance (Cap 631) (Ordinance) was passed on 13 July 2017 and will become effective on 1 December 2017.
The Ordinance clarifies the legal consequences of a party making an apology by stating that it will generally be inadmissible as evidence against them in the relevant proceedings as an admission of fault. Sometimes, a party may still wish to express their condolences or sympathy, despite genuinely believing that they are not at fault. The Ordinance will give protection to such party by ensuring that such an apology does not constitute an express or implied admission of the party’s fault or liability in connection with the matter and must not be taken into account in determining fault or liability on any other issue in connection with the matter to the prejudice of that party.
Hong Kong will soon become the first jurisdiction in the Asia-Pacific region to have an apology legislation. At the moment, Australia, the United States, Canada and Scotland have also enacted similar legislation, but the scope of protection given to apologies under the Ordinance in Hong Kong is one of the widest yet.
The legal definition of an ‘apology’
An apology is defined under section 4 of the Ordinance as “an expression of the person’s regret, sympathy or benevolence in connection with the matter”. Such an expression may be oral, written or by conduct. The Ordinance has adopted a broad definition of an “apology”. Unlike the apology legislation in some other jurisdictions, such as the most recently enacted Apologies (Scotland) Act 2016, the Ordinance also extends protection to apologies made by way of conduct, for example an offer to pay the other party’s medical expenses, sending flowers, taking bows of apology, etc.
The apology also includes any part of the expression that is an express or implied admission of fault or a statement of fact in connection with the matter.
An apology could also be made in the form of an electronic record, for example through e-mails, SMS messages and various forms of social media.
It should be noted that an apology made in documents filed or submitted in the proceedings (for example apologies made in the pleadings and witness statements) or an apology made by a person in testimony given at the hearing of the proceedings remains admissible and will not be protected under the Ordinance: section 5(a). This is to be distinguished from an apology, the existence of which, is only referred to in the pleadings or other documents filed or submitted in the proceedings. An apology in the latter should still be protected under the Ordinance.
The Ordinance does not affect discovery, or similar procedures in which parties are required to disclose or produce documents in their possession, custody or power in applicable proceedings: section 11(a).
Wide range of applicable proceedings
The Ordinance will apply to a wide range of civil proceedings, which include judicial, arbitral, administrative, disciplinary, regulatory and other proceedings.
It will not, however, apply to criminal proceedings, proceedings of the Legislative Council and proceedings conducted under the Commissions of Inquiry Ordinance (Cap 86), the Control of Obscene and Indecent Articles Ordinance (Cap 390) and death inquests under the Coroners Ordinance (Cap 504).
The Ordinance does not have extra-territorial effect. Therefore, it is possible for an apology made in relation to applicable proceedings in Hong Kong to be admissible in proceedings in other countries. On the other hand, an apology made outside Hong Kong will still be protected by the Ordinance and is generally inadmissible as evidence in applicable proceedings taking place in Hong Kong.
Apologies made in mediation and defamation proceedings
As it is common for parties to make an apology during mediation, it is important to make a distinction between an apology made in the context of mediation and an apology intended to be protected under the Ordinance.
Section 11(c) of the Ordinance makes it clear that the operation of the Mediation Ordinance (Cap 620) will not be affected. This means that an apology made in the context of mediation will remain as part of the confidential mediation communication between the parties, as governed by the Mediation Ordinance. Whether or not such confidential mediation communication would be made admissible is a matter under the Mediation Ordinance and the Ordinance will have no application at all.
Section 11(b) of the Ordinance provides that the Ordinance does not affect the operation of sections 3, 4 or 25 of the Defamation Ordinance (Cap 21). This means that an apology made by the defendant in a defamation action may still be taken into account in mitigation of damages: section 3. It also means that a defendant in a libel action can still publish an apology and rely on the defence that the libel was made without actual malice and without gross negligence: section
4. Further, the procedures on publishing an apology for the purpose of making an offer of amends under section 25 will not be affected.
Does not extend limitation periods or affect contracts of insurance
Section 9 of the Ordinance makes it clear that an apology will not constitute an acknowledgement under section 23 of the Limitation Ordinance (Cap 347). Under section 23, the limitation periods for certain rights of action may be extended by an acknowledgment of the title or claim in issue. The Ordinance therefore specifically precludes an apology from operating as an acknowledgment for the purposes of extending the limitation period.
As for contracts of insurance or indemnity, parties are generally advised not to make an admission of fault or liability as this may affect their entitlement under the insurance cover. There are usually clauses in insurance contracts prohibiting any admission of fault or liability. Section 10 of the Ordinance expressly provides that 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 insurance was entered into before or after the commencement of the Ordinance. This safeguards the validity of insurance cover and parties may be more willing to express their condolences and sympathy without fear that such apology will affect their rights and entitlements under their insurance.
Discretion to admit statement of facts in an apology in an exceptional case
During the consultation process of the Ordinance, one of the most discussed aspects was the discretion given to the decision maker under section 8(2) of the Ordinance to admit statements of fact in an apology as evidence in the proceedings. This section provides that such discretion can be exercised in an exceptional case, where the decision maker is satisfied that it is just and equitable to do so, having regard to the public interest or the interests of the administration of justice.
An example where such discretion may be exercised is set out in the Ordinance, namely where there is no other evidence available for determining an issue. While it is anticipated that this discretion will rarely be invoked and will only be exercised in limited circumstances, no further illustrations were given as to what would constitute ‘an exceptional case’.
Potential uncertainties in the exercise of discretion
Given the wide range of applicable proceedings under the Ordinance, this could potentially lead to greater uncertainties as to how the discretion under section 8(2) would be exercised by different decision makers. A decision maker is defined under section 8(4) as the person (whether a court, a tribunal, an arbitrator or any other body or individual) having the authority to hear, receive and examine evidence in the proceedings. Although the courts may be familiar with phrases such as “just and equitable”, “in the public interest” and “in the interests of the administration of justice” and are expected to exercise the discretion in a consistent manner, concerns arise from the fact that not all decision makers in the relevant tribunals and disciplinary boards are judges or legally trained. Further, the fact that decision makers in other non-judicial proceedings are not bound by the decisions of the courts only creates more uncertainties for potential apology makers. It remains to be seen if the discretion can indeed be exercised by decision makers in a consistent manner across all types of applicable proceedings.
Further, the decision maker’s decision to admit a statement of fact in an apology as evidence can be challenged by way of an appeal. A party wishing to challenge the decision may lodge an appeal according to the appeal procedures of that particular court or tribunal. If there is no appeal mechanism, the decision maker’s decision could be challenged by way of judicial review.
In the meantime, legal advisers when advising clients as to whether certain statements of fact may be admissible should remind clients of the potential uncertainties that may arise. It is also important to draft the apology bearing in mind that there is a chance, however rare, that the facts included in the apology could be admissible as evidence, particularly where the apology is to be given at an early stage, before any discovery has taken place.
It may also be prudent for legal advisers to not only review judgments concerning the exercise of discretion by the courts, but to also consider decisions from tribunals or disciplinary boards arising from other applicable proceedings.
Conclusion
While it may be difficult to assess empirically the effectiveness of apology legislation in changing people's behaviour and attitudes in handling disputes, there have been suggestions that an apology has an important role to play in meeting people’s psychological needs and promoting settlements in certain civil disputes. This is most notably so in personal injuries, defamation and medical negligence claims, where monetary compensation might not be the top priority of the victims.
The Ordinance ambitiously seeks to change the current dispute resolution culture from one which is more adversarial-based to one that is more conciliatory in nature. It undertakes to encourage natural, open and direct dialogue between people after injuries to reduce tension, antagonism and anger. However, in cases where the decision makers exercise the discretion to admit a statement of fact as evidence, it is anticipated that the relevant parties would lodge an application to appeal against such decisions, which could potentially cause undue delay in the final determination of the matter and create further uncertainties for the parties.
The full version of this article was first published on Lexis® Practical Guidance – Hong Kong Dispute Resolution on 5 September 2017
Paul Kwan, Partner, Deacons
