Many people regard “sorry” as the hardest word to say, yet it has been proven to be effective in helping settle disputes. Yet, overcoming the emotional barrier to utter the word is one thing, and getting around of the legal consequence is another.
Fortunately, in Hong Kong, the Apology Bill was enacted on 13 July 2017. The Apology Ordinance is the first one of similar legislations in Asia, although the same has existed in other common law jurisdictions such as UK, USA and Australia for quite a long time.
The passing of the Bill is welcomed by litigators and dispute resolvers as an important step to help diffuse acute disputes. An apology is defined under the Ordinance as a person’s regret, sympathy or benevolence. The significance of the legislation lies on the following aspects:
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It precludes an apology from constituting an admission of fault or liability, and from being taken into account in determining fault, liability or any other issue to the prejudice of the apology maker, for the purposes of applicable proceedings, which include judicial, arbitral, administrative, disciplinary and regulatory proceedings, and other proceedings conducted under an enactment, but exclude criminal proceedings and some specific types of proceedings listed in the Schedule.
· An apology will not render a contract of insurance void or affect any insurance cover, despite anything provided in the insurance contract.
This has effectively removed the two most significant areas that disincentivise the making of apologies during or in contemplation of legal proceedings. However, the author is of the view that the legislation will even be of much higher value in fostering settlement if it can provide that the making of an apology (and the acceptance or non-acceptance thereof) can be taken into account by courts in assessing damages or costs in certain types of “mild” proceedings unrelated to, for example, personal injury or fatal accident.
（Author, Mr. Edward Tai, Born and educated in Hong Kong, he is a solicitor admitted in Hong Kong, Australia (NSW & SA) and England & Wales. He started off his legal career by practicing as a commercial litigator in Hong Kong. After that, he went in-house in different roles of counsel, head of legal and/or company secretary etc. In the last 10 years, he has been mainly focused in the law and commercial practice relating to cross-border M&A, corporate finance and listing compliance. All rights reserved by author, Edward Tai)