In June 2015, the Steering Committee on Mediation in Hong Kong issued a consultation paper on the enactment of apology legislation.
Following two rounds of consultation, on 13 July the law was enacted, aiming to facilitate dispute resolution in Hong Kong. Apology legislations are not uncommon and the initiative of Hong Kong’s Steering Committee and, subsequently, of the Legislative Council, follows the model of other common law jurisdictions such as the UK, US and Australia.
The Apology Law
Firstly, the legislation applies to all civil disputes subject to arbitration, litigation, administrative proceedings or disciplinary and regulatory proceedings. It does not compel anyone to make an apology, but it facilitates amicable dispute resolution where the parties want to resolve the matter in this way.
The definition of apology is broad, covering both partial and full apologies. Clause 4 defines an apology as an “expression of the person’s regret, sympathy or benevolence”. This differs from most of the other common law jurisdictions, which have only enacted legislations to cover partial apologies.
The broader approach taken by Hong Kong is aimed at promoting dispute settlement, which could not have been fully achieved by addressing only partial apologies.
Secondly, clauses 7 and 8 provide for the effect of an apology as well as the admissibility of apologies from an evidentiary perspective.
On this matter, Hong Kong’s approach departs again from the other common law jurisdictions by noting that statements of fact contained in an apology will be inadmissible in evidence against the apology maker, unless exceptional circumstances arise.
These exceptional circumstances avoid issues regarding the partial acceptance of an apology, but not the admission itself. The Legislative Council qualifies the exception by stating that the decision maker should be satisfied that such admission is “just and equitable” and that regard should be given to all the “relevant circumstances”.
Finally, another important aspect is the effect of the apology on limitation periods. Clause 9 ensures that apologies cannot be used in order to extend time limits. In this sense, apologies will not be regarded as acknowledgements of rights of action for tolling purposes under Hong Kong’s Limitation Ordinance.
Hong Kong is the first country in Asia to enact an apology legislation. This shows a wider initiative to encourage the use of mediation and alternative dispute resolution (ADR) in resolving disputes. The legislation also aims to offer safeguards outside the mediation process or general privilege by rendering statements automatically inadmissible.
This will have a notable impact on insurance policies, as in the past, there was a perceived concern that making an apology would have adverse consequences on the insurance cover of the apology maker.
Overall, this initiative will enhance Hong Kong’s competitiveness within the ADR arena.