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Sorry Is Not Good Enough Or Is It?

Article by A. Moutasallem

September 2011

We live in a litigious society where it is often the case that parties elect to fight disputes to the bitter end in court rather than pursuing attempts to reach a mutually acceptable compromise. It seems we are reluctant to acknowledge fault and to apologies to those who have been aggrieved by our conduct.

In light of recent legislative changes and recent social research in both Australia and overseas we invite all our clients to consider the potential of an apology in dealing with a dispute.

A sincere apology, acknowledging the wrong conduct and expressing genuine remorse, can result in desirable outcomes. An apology cannot only potentially assist in reducing the time and costs of litigation, it may be so well received that litigation may be avoided altogether.

An apology appeals to the most fundamental emotional and psychological needs of a person who has been harmed by the conduct of another.

Social research has shown that rather than monetary compensation, often the most fundamental need of an aggrieved party is an acknowledgement of the wrongful conduct. Our hearts and minds are programmed to positively receive a sincere apology.

A refusal to apologise is likely to infuriate the aggrieved party and often results in long drawn out litigation proceedings run only on the basis of principle, rather than any carefully thought out commercial consideration.

A sincere apology has the obvious advantages of maintaining an existing relationship. It is a clear demonstration of trustworthiness and honour on the part of the apologising party.

One may be forgiven for being hesitant to issue sincere apologies fearing the legal repercussions of an admission of liability for wrongful conduct. Our State Parliament in its infinite wisdom has seen fit to enshrine in statute a protection for apologies that include an admission of responsibility for wrongful conduct. Pursuant to the Civil Liability Act 2002 an admission made in an apology is inadmissible in civil proceedings as evidence of the fault or liability.

We stand to lose nothing by trying to avoid litigation in this manner, but inevitably there will always be an aggrieved party who for some reason or another chooses to pursue litigation notwithstanding an apology.

If circumstances change, negotiations for an acceptable settlement fail, or you simply have a change of heart, provided that the apology meets the statutory criteria, nothing precludes us from launching a vigorous defence later in the future. That is the virtue of the statutory protection of an apology.

An apology needs to be carefully drafted to ensure that its clarity and sincerity is obvious to invoke the protection of the Civil Liability Act 2002. We cannot stress the importance of a sincere and clear apology to avoid having admissions of liability later tendered in evidence. For this reason, we recommend that any apology be drafted or its wording approved by a legal practitioner before it is communicated to the aggrieved party.

This article is not meant to be interpreted as advice to acknowledge fault for each and every accusation levelled against us. Often a party has no moral or legal standing to demand either an apology or an acknowledgement of liability. In such circumstances, a vigorous defence is warranted.

There are times where liability is a contentious issue, a factor which may not be apparent without legal advice. It is possible that an investigation of the facts that brought about the dispute by a skilful legal practitioner may disclose that in fact the aggrieved party is guilty of the wrongful conduct. In such circumstances, the supposed aggrieved party deserves to be served with a statement of cross-claim rather than an apology.

Therefore, if unsure whether or not you are at fault, seek legal advice before you render an apology.

Litigation can be a traumatic, time consuming and costly exercise. We have chosen to enlighten our clients about the benefits of a carefully drafted sincere apology in the interests of saving our clients the costs, time, and anguish associated with litigation. We reiterate: legal advice is always recommended before making any apology or giving any acknowledgement of liability.

Call (02) 8084 2764for more information on any of the legal services we offer.

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