The Implications of the New Apology Ordinance

Introduction

On 1 December 2017, the Apology Ordinance (Cap. 631, Laws of Hong Kong) (“Ordinance”) came into effect. The Ordinance changes the legal consequences of any sort of apology (unless otherwise specifically excluded in the Ordinance) made pursuant to a dispute. The driver of this legislation is to assist with dispute resolution and to facilitate settlement between parties. While Hong Kong is the first jurisdiction in Asia to enact an apology legislation, it draws on other common law jurisdictions such as those of the UK, Australia, US and Canada.

The Ordinance – “apology”, scope, and effect

Apology

One of the key aspects to discuss when looking at the Ordinance is the definition of “apology”. In the Ordinance, “apology” is defined broadly, and 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 (i.e. full apologies), or (b) a statement of fact in connection with the matter (i.e. partial apologies). Apologies also include apologies that have been made on behalf of a relevant person. The Ordinance will apply to all applicable apologies made on or after the commencement of the Ordinance (i.e. 1 December 2017), regardless of when the matter arose or when the applicable proceedings began.

Scope

The Ordinance applies to all civil disputes subject to litigation, arbitration, and other disciplinary and regulatory proceedings. However, it does not apply to any criminal proceedings or proceedings specified in the Schedule to the Ordinance (e.g. proceedings conducted under the Commissions of Inquiry Ordinance (Cap. 86, Laws of Hong Kong), the Control of Obscene and Indecent Articles Ordinance (Cap. 390, Laws of Hong Kong), and the Coroners Ordinance (Cap. 504, Laws of Hong Kong)). It should also be noted that the Ordinance expressly applies to proceedings involving the government. 

Effect

If the Ordinance is applicable to the proceedings in question, the 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. The effect of this is that parties are more likely to settle through negotiations, and mediation may start to play a bigger role in civil disputes, since parties would be less concerned about statements being made admissible against them later, and would thus be more open to negotiation.

Effect and interplay with insurance

Prior to the Ordinance, there are circumstances where insurers advise against making any apologies, even if they are made “without prejudice”. This is because insurance policies often include provisions stating that insured entities are not permitted to make any admission of fault. However, with the introduction of the Ordinance, any apology that falls under the applicable proceedings will not render any insurance policy void, and will not affect the insurance cover.

Effect and interplay with Limitation Ordinance (Cap. 347, Laws of Hong Kong)

According to section 23 of the Limitation Ordinance, certain causes of actions (e.g. rights of action relating to land, personal property and debts) are deemed to accrue at the date of acknowledgement of the claim in question. Therefore, limitation periods can be extended if the acknowledgement is made at a later date. The Ordinance expressly states that apologies will not constitute such acknowledgements and therefore will not assist in extending limitation periods in respect of such causes of action. 

Our services

With the commencement of the new Ordinance, it is common to have questions regarding this legislation. Our team provides legal advice on issues relating to the making of apologies, and any other matters relating to the new Ordinance. If you come across any issues relating to this legislation, please feel free to approach us for a confidential discussion.

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