New apology legislation for Hong Kong10月162017
An apology can assist in the restoration of trust between parties in all kinds of dispute and certainly encourage settlement in disputes which have already escalated to Court action. The most obvious cases are disputes containing elements of ‘damage to feelings’ such as defamation, personal injury and discrimination claims.
Often when comparing the rigid series of outcomes that can be obtained by Court action after they have had their day in Court, parties are disappointed to find that the orders that can be made are mostly monetary and do not get to the centre of the issue.
People often favour the flexible outcomes that can be achieved in mediation. They often want to be heard and to have their difficulties acknowledged by the people who they believe have caused the difficulties.
The Apology Ordinance (Cap. 631) was passed in Hong Kong on 13 July 2017, making Hong Kong the first jurisdiction in Asia to address the issue of apologies in its legislation. The ordinance has yet to come into operation but is expected to have far-reaching implications in dispute resolution, both in Court and in Alternative Dispute Resolution such as mediation.
Within the legislation, the word apology has been defined as “an expression of the person’s regret, sympathy or benevolence in connection with the matter”. The apology is also defined to include any part of the expression that is “an express or implied admission of the person’s fault or liability in connection with the matter” or “a statement of fact in connection with the matter”.
Traditionally, an apology is admissible into evidence in civil proceedings as an admission of fault. The new ordinance seeks to prevent this by stipulating that such statements of apology are to be considered independently of a person’s liability.
Now, however, the effect of the legislation is that a litigant will be permitted to make an apology without implications for his claim or for his defence. Further, an apology will not constitute an acknowledgement, which will create a fresh accrual of action under the Limitation Ordinance, nor will it render void any insurance cover which may otherwise protect against liability. In exceptional cases, however, the court still has discretion to admit a statement of fact contained in an apology as evidence. The legislation will not apply to criminal proceedings.
Encouraging apologies but at the same time making apologies inadmissible as evidence of fault will have a positive impact on dispute resolution. It is to be hoped that an appropriate and sincere apology really will help people to reconcile or at least to move on.
The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.