13 ReSolution | Aug 2017
APOLOGY LEGISLATION PASSED IN HONG KONG – WHAT DOES IT MEAN FOR YOU? - Cont...
evidence of liability in other ways, is open to debate. However, the policy driver, namely to encourage settlement of disputes, was regarded as the more pressing priority, and the protection of partial apologies, too limited to have any tangible and positive effect.
Statements of fact also inadmissible in evidence
The Apology Law goes further than all other jurisdictions with apology legislation, in that statements of fact included in an apology will also be inadmissible in evidence against the apology maker (clause 8). The intention behind this is to encourage full and burden-free apologies to prompt amicable settlement. LegCo was keen to avoid situations where parts of an apology (eg the surrounding statements of fact) were admissible, but the accompanying apology/admission was not. Of course, a claimant may still separately obtain evidence related to a statement of liability or fact by other independent means, for example, during discovery or during cross-examination. But this may impose on a claimant an additional evidential burden. In response to this concern, a late amendment to the bill was introduced such that, in exceptional cases (the only example cited is where there is no other evidence available for determining an issue), a statement of fact contained in an apology may be admitted as evidence at the discretion of the decision maker. It may be admitted only if he/she is satisfied that it is “just and equitable” to do so, having regard to “the public interest or interests of administration of justice”. Whilst these are well defined legal terms, the decision maker burdened with this call may not have a legal background in the case of certain tribunals/disciplinary boards.
The scope for satellite litigation on this point is possible, which would counter the intention of the law to reduce, not increase, recourse to the courts.
Jurisdiction
Clause 6 states that the Apology Law applies to all civil (not criminal) disputes subject to litigation, arbitration, and almost all disciplinary and regulatory proceedings. Only proceedings under the Commissions of Inquiry Ordinance (Cap 86), the Control of Obscene and Indecent Articles Ordinance (Cap 390) and the Coroners Ordinance (Cap 504) are specifically exempted further to consultation requests by interested parties. There is scope for the Chief Executive to exempt other proceedings over time and it will be interesting to see whether this happens. Given the wide number of authorities and industry organisations, including the Hong Kong Monetary Authority and the Hong Kong Federation of Insurers, who participated in the consultation process, it is unlikely that a significant number of proceedings will be added to the exemption list.
The Apology Law expressly applies to proceedings involving the government (clause 13).
Effect of apologies on insurance cover
Insurance policies often contain clauses prohibiting the admission of fault by an insured without the insurer’s consent. In practice, to date, insurers in Hong Kong tend to agree apologies only in limited circumstances (for example where there has been a clear breach). In complex claims in particular, insurers are likely to counsel against (early) “without prejudice” apologies. The fear that making an apology would adversely affect the apology maker’s insurance cover was identified by the Steering Committee as a real and significant barrier to apologies in Hong Kong. Clause 10 of the Apology Law removes this barrier by providing that an apology will not void or affect insurance cover, compensation or other benefit for any person in connection with the insurance. It matters not if the policy in question is governed by another law: if Hong Kong is the place of the litigation, tribunal or regulatory proceedings, the apology will be protected and insurance cover will not be affected. This again highlights the desire of the legislature to make Hong Kong a popular venue for dispute resolution. Insurance companies, regardless of the substantive law covering their contracts of insurance/indemnity, should take clause 10 on board.
Effect of apologies on limitation periods
Karen Ingram Cecile Bester
Albert practises as a barrister, arbitrator and mediator practicing in Australia. He has over 20 years experience. He is a Grade 1 arbitrator and is accredited as an advanced mediator. He was appointed Senior Counsel in 2010. Albert is also on the NZDRC and NZIAC Panels of Arbitrators and Mediators.
To read more about Albert, visit the NZDRC website.
NZDRC’S EXECUTIVE DIRECTOR RUNS NEW YORK MARATHON TO RAISE FUNDS FOR CATWALK
NZDRC's Catherine Green has recently completed the NY Marathon for a second year in a row, to raise funds for Catwalk - Spinal Cord Injury Research Trust.
"After running New York last year with the Catwalk team, I couldn’t wait to sign up again. Not only is this an amazing event to be involved in from a personal perspective, it is a fantastic way to get behind a truly deserving cause. The work Catwalk is doing to raise funds to support the ongoing scientific research into finding a cure for spinal cord injury is extremely important and it is an honour and a privilege to be a part of their efforts"
The Catwalk team of almost 30 members was lead by David Pretorius whose daughter was left paralysed from the waist by a car accident in 2010. The CatWalk Trust is committed to a world where spinal cord injury will not mean paralysis for life and so far has raised $176,474.85.
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For further information or to donate visit www.catwalk.org.nz