A Legal risks of apologising

In the literature, it is argued that the potential that apologies have for contributing to the resolution of a dispute is complicated by (the threat of) legal proceedings. In conflicts that may result in legal proceedings, apologies may be viewed as hazardous in light of possible legal consequences. This may cause parties to deal with apologies differently than in non-legal contexts. Various authors have argued that the fear of negative legal consequences prevents wrongdoers from apologising.^[12] Wrongdoers fear that their apology will be interpreted as proof that they are to blame for the incident and that this will worsen their position in potential legal proceedings. In legal practice, this fear is said to be perpetuated by lawyers and insurance companies that explicitly instruct their clients not to apologise.^[13]

In recent years, there has been an abundance of empirical research into the effects of apologies in a legal context. Initially, this research focused on criminal law.^[14] However, there is also an increasing scientific interest in the interaction between apologies and civil proceedings.^[15] These studies focus particularly (but not exclusively^[16]) on civil liability cases. For example, how victims are influenced by an apology of the wrongdoer (or the lack thereof) in the decisions they must make has been the subject of research. This includes, for example, the decision to seek legal advice, the decision to initiate legal proceedings and the decision whether to settle and at what amount.^[17] However, research has also examined the way in which other actors, who are involved in legal decision-making, are influenced by apologies, for example, a judge^[18] or a lawyer^[19].

As a result of this wide range of psychological research, attention to apologies has also increased in the legal domain. In order to safeguard the positive potential of apologies, it is argued that their position should be strengthened.^[20] This has led to various initiatives in legislation, case law and literature. Most of these initiatives are aimed at facilitating or protecting apologies in civil legal proceedings.^[21] In a number of jurisdictions, for example, legal provisions that reduce or eliminate the (presumed) detrimental legal consequences of apologies (apology protection laws) have been introduced.^[22] In addition, several legal scholars have advocated the creation of the possibility of enforcing an apology in court (apology as a legal remedy).^[23] This possibility has been codified in legislation and judicial precedents in a number of jurisdictions.^[24] It is striking that there is a binary discussion in the literature on these initiatives in which scholars argue for or against their introduction. This includes the normative question of whether it is desirable to protect or stimulate apologies in a legal context.^[25] What is often lacking in the scientific debate is a proper problem analysis. We know little about the role that apologies actually play in judicial decision-making. For example, the need for apology protection laws is based on an assumption about how apologies are dealt with in civil proceedings, the assumption being that the judge (or other decision-makers) will be influenced by the fact that one of the parties has apologised. More specifically, it is often assumed that in civil liability cases, the judge is more likely to hold parties who apologise liable for the damage that has been suffered. However, the extent to which this is the case has not yet been studied systematically. Before a discussion can be held about the added value of apology protection laws, more clarity will have to be obtained. This is particularly important because an increasing number of (especially common law) jurisdictions are introducing apology protection laws and, in other jurisdictions, the desirability of such legislation is being debated.^[26]

B Defining apologies

The reference to ‘apology’ in judicial decision-making inevitably raises questions about its meaning. However, there is no ready-made answer to this question. Different definitions are used in social, psychological and legal (empirical) research.^[27] Thus, it is not possible to provide one comprehensive definition of the concept of apology. Carroll recognises this by arguing that it is not very useful to adopt a binary ‘is or is not’ definition of apology.^[28] Far better, she says, would be to look at the different elements that apologies can consist of. Other authors also recognise that there is no set concept, but that what should be understood by apology is context-dependent.^[29] Distinguishing different elements recognises the reality that apologies will always be shaped in their own and different ways in practice. In line with this, despite the fact that the definitions used in the literature differ in content, they identify common elements of an apology.^[30] Expressions do not have to include all elements to qualify as an apology. However, apologies that include more elements will generally be more effective. Three elements are thereby most often mentioned as important elements of apologies: (1) acknowledgement of wrongdoing/acceptance of responsibility, (2) expressing (sincere) regret/repentance and (3) making a promise to act differently in the future/taking measures to prevent recurrence.^[31] The first element, acknowledging a mistake or accepting responsibility, is described in the literature as the most important and powerful element of apologising.^[32] At the same time, this is the element that is most associated with legal risks.^[33]

C Research aim, scope and relevance

The aim of this study is to gain more insight into the extent to which, and the way in which, apologies play a role in judicial decision-making. In order to map this out, it is necessary to compare different procedures on this issue. This study examines the Dutch civil procedure and the medical disciplinary procedure. The choice of the civil procedure is obvious since the scientific debate on the role of apologies in law mainly focuses on this area. A comparison with the medical disciplinary proceeding was chosen because several Dutch authors suggest that the civil procedure and the medical disciplinary procedure can inspire each other as regards how apologies are dealt with.^[34] Within these procedures, judges have to make different decisions and each of these decisions can be influenced by apologies in a different way. A structured analysis of how apologies influence decision-making in these proceedings is lacking in the literature. It is important to gain more insight into this, as the way in which judges deal with apologies can set a precedent for future cases. Litigants and their representatives will adjust their behaviour accordingly. This means that the role that apologies play in legal proceedings may influence the willingness of litigants to apologise. If it turns out that offering an apology entails legal risks, they will logically be reluctant to do so. On the other hand, they will be more inclined to apologise if this can have positive consequences on the proceedings.

The outcome of this study is not only relevant for the Dutch context. When foreign scholars refer to case law, they often refer to a few illustrative decisions within their own jurisdiction. The full extent to which apologies play a role in judicial decision-making has not been systematically and exhaustively studied for a particular legal system.^[35] Moreover, the debate on the role of apologies in law is mainly conducted in the context of common law legal systems. This contribution provides a detailed and structured overview of the role apologies play in judicial decision-making in a civil law legal system (where apology protection laws have not yet been introduced). It thus provides a new and important empirical perspective to the international scholarly debate.

D Methodology: structured content analysis

The method used in analysing the judicial decisions can best be described as a structured content analysis.^[36] This is a research method that is used to analyse and categorise texts or other research objects (such as images or sound recordings) in a systematic and replicable manner.^[37] This method is also increasingly being used for the analysis of case law.^[38] The first step in the systematic case law analysis was to select relevant judicial decisions. The methodology of conducting a structured content analysis requires that this be done in a systematic and transparent manner, so that the method can be repeated by other researchers.^[39] For the two proceedings that are the subject of this research, all electronically published cases on the websites www.rechtspraak.nl and www.overheid.nl up to and including October 2018 were included. At that time, there were 140,056 civil cases and 8,283 disciplinary cases available in the online databases.^[40] The cases were then screened using a number of keywords.^[41] These keywords were chosen after an inventory of previously found case law in which apologies played a role. As shown above, the apology is a vague and context-dependent concept and it is therefore impossible to give a comprehensive definition of it. In the case law study, the qualification in the judgment itself was taken as the starting point. The decisive factor is thus that an expression in the ruling was qualified (by the judge) as an apology. How the apology was formulated or constructed could in most cases not be ascertained from the ruling. The search yielded 3,452 relevant hits for civil case law and 872 hits for medical disciplinary case law. After removing the double hits, respectively 3,117 and 821 cases remained.

The text of the selected cases was then coded. In this way, text fragments with the same code could be compared with each other in order to ascertain certain patterns in the case law. Coding of judicial decisions enhances the objectivity and replicability of the case law study. The coding of the cases took place in two stages. In the first phase, the cases were examined globally and an initial categorisation was carried out, focusing on whether or not the decision was relevant to the study. Decisions were indicated as relevant for the study when the decision showed that one or more parties had apologised or when the decision showed that no apology had been offered. After this first selection, 1,254 relevant civil decisions and 644 relevant medical disciplinary decisions remained (see Table 1).

In the second phase of the coding process, the cases were further analysed. By means of subsequent coding, additional (sub-)categories were created, corresponding with the different ways in which apologies played a role in the cases. To ensure that the coding was consistent, coding schemes were used. These schemes were initially derived from the literature on the role of apologies in judicial decisions and previously found case law in which apologies played a role. The analysis of this literature and case law led to expectations about how apologies may play a role in judicial decision-making, from which several codes were derived, such as apologies as a legal remedy and apologies as evidence. These codes were further refined during the coding process (for example, by drawing up new and sub-categories). Thus, a combined deductive and inductive approach was used.^[42] On the one hand, a number of codes were taken from the literature prior to the coding process, which can be qualified as a deductive approach. On the other hand, decisions that could not be labelled with the codes drawn up beforehand were analysed inductively. As the coding process progressed, it became clear that there are differences between the two procedures as to the role that apologies play in judicial decision-making.^[43] For this reason, separate coding schemes were drawn up for both procedures.^[44]

A Legal obstacle 1: apologies and admission of liability

The main assumption made about apologies is that offering an apology could constitute an admission of civil liability. Dutch legal scholars have often argued that this may indeed be the case through the application of the will-reliance doctrine.^[49] This doctrine is applicable when a declared will does not correspond with the inner will. In that case, a party may be bound by its declared will if the other party has justifiably relied on it. In the context of apologies: when a wrongdoer apologises, he does not necessary intend to acknowledge liability. However, when the victim justifiably understands the apology as an admission of liability, the wrongdoer is bound by the appearance of his intention.^[50] Whether an apology should be interpreted as an acknowledgement of liability depends on the circumstances of the particular case. This would mean that an apology could be an admission of liability even if it was not intended by the provider. When a statement is qualified as an admission of liability, the implications are far-reaching. The legal consequences of an admission of liability are that the provider of the admission becomes liable towards the injured person. A single statement establishes liability, regardless of whether a reasonable judge would reach the same conclusion. The case law of the Dutch Supreme Court even shows that the provider of the admission or his insurer are still bound by the acknowledgement of liability if the expert report on which the acknowledgement is based turns out to be incorrect.^[51]

But is this theory reflected in practice? Only two examples in the over 3,000 civil cases were found. The first one was a decision in which the court decided that a pension provider, by sending a letter of apology, had acknowledged that a pensioner was entitled to a pension benefit (which, in retrospect, turned out to be too high).^[52] This was not an admission of liability, but an acknowledgement of a pension entitlement. The case does illustrate, however, that the application of the willreliance doctrine may result in certain legal consequences being created by offering an apology. However, the Court itself emphasises in this case that this should not be assumed too quickly:

‘In view of these far-reaching consequences, it should not be assumed too quickly that there is indeed justifiably trust ....’^[53]

The reason why the Court decided that the apology implied an acknowledgement of the pension entitlement lies in the special circumstances of the case. Important here was that the promise in the apology letter was confirmed several times and that subsequently it was also acted upon. It is also noteworthy that, in assessing the value that may be attached to the apology letter, the court attributes significance to the fact that the letter was consciously written and not automatically generated. The same applies to the fact that the letter was written by an expert. Under these circumstances, it may rather be assumed that what is written in the apology letter is also correct.

In the second judgment, the court decided that a personal injury agency had acknowledged a professional error by sending an apology letter.^[54] The court ruled that this letter could reasonably be interpreted by the receiver as an acknowledgement of a professional error by the personal injury agency. One of the decisive factors was the legal expertise of the personal injury agency.

These two court decisions show that by applying the will-reliance doctrine, an apology may, in exceptional circumstances, lead to certain legal consequences and even to an admission of liability. The fact that only two court decisions were found in which this is the case, however, shows that these are the (unlikely) exception to the general rule. The court decisions also show that an apology should not be judged in isolation, but in conjunction with the wording chosen in the statement. The decisive factor is ultimately whether there is a legitimate expectation that the statement in question is an admission of liability. In this respect, it is important to note that in the judgments found in which an acknowledgement was accepted, the justified confidence was not only based on the apology offered, but also on various additional circumstances. For example, in both cases, the apology was offered by a professional party and, according to the judge, the recipient could therefore attach more value to it. No judgments were found in which it was decided that an apology offered by a non-professional party constitutes an acknowledgement of liability (or any other legal qualification). For this reason, it is doubtful whether apologies in these cases can imply an admission of liability at all.^[55] In addition, it may be important that the statement in which an apology is given was drafted consciously (and thus not automatically). The fact that the content of the apology is later confirmed and acted upon is also a circumstance that may be of importance. After all, under these circumstances, the recipient may attach more value to the apology.

In most of the decisions that have been found, however, it was ruled that the apology offered by a litigant did not constitute an admission of liability or any other legal qualification. In most cases, it was considered decisive that the provider, by apologising, had not taken responsibility for the allegedly wrongful conduct.^[56] In two cases, the apology and the admission of liability were even explicitly separated. In these cases, the apology was regarded only as immaterial reparation. This was, for example, the case in a decision in which the Child Protection Board apologised to the parents of children who had been placed in care.^[57] According to the court, the letter of apology could not be understood as an acknowledgement of liability but only as an acknowledgement of the parents’ feelings:

‘The Court also notes that the mere fact that the Board has indicated that it agrees in retrospect with the points of complaint declared well-founded by the Complaints Committee and the National Ombudsman does not imply, contrary to the parents’ opinion, an acknowledgement of civil liability with corresponding damages. Accordingly, the State emphasised that in doing so, the Board only intended to acknowledge the parents’ feelings and to emphasise that the Board will take to heart the suggestions made by the National Ombudsman for improving the working method.’^[58]

In another case, the court ruled that a hospital board’s letter of apology to a patient did not constitute an admission of liability:

‘Nor does the letter from the hospital’s Board of Directors constitute an admission of liability. The letter merely acknowledges that the doctors involved acted carelessly. Apologising by a hospital is seen by patients as very important and should be strictly separated from acknowledging liability, because otherwise hospitals will omit these apologies, which are so important to patients. The spirit of the letter from the Board of Directors is clearly aimed at making apologies and not at acknowledging liability.’^[59]

The case law discussed in this section shows, in summary, that apologies can only be considered as an acknowledgement of civil liability under specific circumstances and in exceptional cases.

It is striking that, in the analysed medical disciplinary case law, this issue is dealt with in a fundamentally different way. The disciplinary tribunals clearly and consistently rule that apologies offered by the practitioner cannot constitute recognition of disciplinary culpability. It is the disciplinary tribunal which, based on all the facts established in the disciplinary proceeding, decides whether the disciplinary standards have been breached.^[60] The subjective opinion of the professional himself (which can be expressed by offering apologies) is not decisive in this regard. This is very clear, for example, in a case involving a patient who had been in intensive care for quite some time due to a complicated and difficult recovery after the removal of his right lung.^[61] At some point, this patient was transferred to a ward in another hospital, where he died shortly afterwards. The reproach of the patient’s wife (and the complainant in this proceeding) basically boils down to the fact that the transfer should not have taken place. The disciplinary tribunal ruled that the transfer was justified at the time and that no disciplinary reproach can be raised. The fact that the defendant had indicated that – with the benefit of hindsight – he should not have proceeded with the transfer does not change anything:

‘It is the tribunal’s task to independently assess whether the defendant has remained within the bounds of reasonably competent professional practice. In this assessment, the tribunal has taken into account all the facts and circumstances known to it, including the expert assessments submitted in these proceedings. This also includes the defendant’s own assessment. The defendant is very much to be praised for entering into discussions with the complainant, among others, and for taking a critical look at his own actions. His conclusion that he should not have proceeded with the transport (given the later knowledge of F’s death) does not mean that his actions were substandard at the time of the transport decision. It might have been better, but that is not the standard for disciplinary liability.’^[62]

The tribunal ruled that it is up to the tribunal itself to assess whether, in the specific case, there is evidence of disciplinary culpability. The defendant’s own views on this (as well as assessments by other experts) may be included in the decision but are not decisive. Next, the tribunal emphasises that critical reflection on one’s own actions and the offering of apologies by healthcare providers cannot be equated with an acknowledgement of disciplinary liability. This is important for all parties involved and for the quality of healthcare:

‘It is of great importance for all parties involved and for the quality of healthcare that healthcare providers can reflect critically on their actions and, if necessary, apologise for them, without automatically admitting disciplinary liability.’^[63]

The foregoing also applies if the professional, by apologising to the patient, has aroused the legitimate expectation that he can be reproached with a disciplinary action.^[64] Therefore, in contrast to civil law, the will-reliance doctrine does not seem to be applied here, at least not in the 821 cases studied. Unlike in civil law, in medical disciplinary law, liability cannot be established by offering an apology. This method of assessment can therefore serve as inspiration for the judicial assessment within other proceedings.

B Legal obstacle 2: the evidential status of apologies

The case law analysis highlights a second legal obstacle to apologising, namely the acknowledgement of certain facts.^[65] It is an obstacle that occurs in both of the procedures that have been analysed. Although this impediment has received virtually no attention in the literature, it occurs much more frequently. The case law analysis shows that apologies that acknowledge facts are regularly used as evidence. An important finding is therefore that apologies can have evidential value. In the decisions in which apologies serve as evidence, the court uses the apology to substantiate certain facts on which the decision is based. At first glance, this seems to be a strong legal obstacle to apologising. However, after further analysis of the case law, a different picture emerges. In the decisions found, in addition to the apologies, other arguments were mentioned. Apologies may therefore have evidential status, but the observation that I have been able to make from the structured case law analysis is that courts deal with this in a nuanced manner. Apologies are not given decisive importance.

A few examples can illustrate this. In the first case, the plaintiff claimed that she had been sexually abused by the defendant.^[66] The court ruled that the plaintiff had succeeded in proving this claim and referred to several pieces of evidence, including a letter in which the defendant had apologised. The defendant says in this letter:

‘The things that happened from me towards you should never have happened. I am the one who went too far. I am sincerely sorry for what happened and, if possible, I apologise for it.’^[67]

The court ruled that the pieces of evidence, ‘viewed together’, were sufficiently strong indications that sexual abuse had taken place. The decision of the court is therefore based on all the evidence as a whole, including the apology letter. Only all the pieces of evidence together can support the decision of the court (Schedule 1). In other words, the decision is not solely based on the apology offered by the defendant.

Schedule 1

Argumentation diagram for district court of Arnhem 14 March 2012, ECLI:NL:RBARN:2012:BW0516.

In the second example, an Association of Stockholders and a number of shareholders had asked the court to investigate the policy of Fortis, a large Dutch bank.^[68] In their opinion, Fortis had harmed its shareholders by issuing several reassuring statements during the financial crises, which subsequently turned out to be incorrect. The court ruled that there were indeed indications that Fortis had acted incorrectly during that period. According to the court, the optimism expressed by Fortis in the media did not reflect the reality of its situation. The court substantiates this judgment by referring to two arguments. First, reference is made to a statement given by the then CEO of Fortis during an informative shareholders’ meeting. In this statement, he apologised for the deception of the investing public. Secondly it was mentioned that, even at the height of the crisis, there was uncertainty about specific investment products. According to the court, both arguments individually provided sufficient evidence that Fortis had acted incorrectly. As in the previous case, the apologies did not have any decisive significance in the court’s judgment (Schedule 2 below). After all, the judgment could also be based on the other argument mentioned by the court. The judgment of the court was again not solely based on the apology that had been offered.

Schedule 2

Argumentation diagram for Court of Appeal of Amsterdam 24 November 2008, ECLI:NL:GHAMS:2008:BG5150

The examples illustrate that when evidence shows that a party has apologised, the court may use this to support the facts on which the decision is based. However, it is not true that the entire decision is based on the fact that an apology has been offered. In the decisions found, other arguments were also mentioned and the apologies were often used to support a single part of a larger factual complex.

A Claims for an apology

By analysing the civil case law, many decisions were found in which the offering of an apology by the opposing party was claimed (n = 175). In the literature it has been argued that claimed apologies are (almost) always rejected in Dutch civil courts.^[74] The results of the case law analysis reveal a more nuanced picture. Although in the majority of the cases, claims for an apology are rejected, quite a few decisions were found in which such a claim was allowed (n = 27). An illustrative example is a case in which the claimant had chatted with the defendant, whereby the defendant had posed as a thirteen-year-old girl.^[75] On her website, the defendant had published (among other things) texts of chat sessions, a photograph of the claimant and personal details of the claimant. The court ruled that by making these statements on her website, the defendant had acted wrongfully towards the claimant. The claimed prohibition of the publication was awarded. This also applies to a rectification on the website of the defendant and a letter of apology^[76] to the claimant:

‘The foregoing leads to the conclusion that the claim with respect to the requested prohibition of publication appears to be neither wrongful nor unfounded. This means that this part of the claim will be allowed. This also applies to a rectification on the defendant’s website and a letter of apology as stated below.’^[77]

Nevertheless, in most cases, such a claim is rejected (n = 148).^[78] The main reasons given by the court for this are: (1) that apologies are expressions of personal feelings and therefore cannot be enforced;^[79] (2) that enforced apologies are not effective, for example because they are insincere or have no value;^[80] (3) that the enforcement of apologies conflicts with the freedom of expression;^[81] and (4) that there is no legal basis on which a claim for an apology can be based.^[82] These arguments have already been critically assessed in the literature.^[83]

B Breach of the obligation to apologise

I also found decisions in which the question of whether a breach of the obligation to apologise can lead to liability was addressed. In the Netherlands, the basis for such an obligation for medical incidents can be found in a code of conduct on openness after medical incidents.^[84] This is a code of conduct in which, among others, recommendations are made regarding the settlement of claims in the event of medical incidents. Recommendation 8 of the code is important with regard to apologising after a medical incident:

‘If the investigation into the cause of the incident reveals that an error occurred, the healthcare provider acknowledges this error and apologises to the patient.’

The case law analysis shows that medical professionals who violate this recommendation act in breach of medical disciplinary law.^[85] They risk the imposition of a measure by the medical disciplinary tribunal (such as a warning or reprimand).^[86] No civil decisions were found in which the violation of the obligation to apologise led to civil liability, but, in theory, this is possible. After all, codes of conduct such as the GOMA quoted above can give substance to open standards^[87] (for example, the standard of due care of art 6:162 Civil Code) or to a (medical treatment) contract between parties.^[88] Non-compliance with the recommendation to apologise as laid down in the code of conduct could therefore constitute a wrongful act or breach of contract.^[89]

C Implementation of open standards

The case law analysis brought dozens of decisions to light in which the fact that an apology was (not) offered is considered a relevant circumstance in the interpretation of an open standard in the civil code.^[90] In this respect, the fact that a party has apologised is regularly considered in his favour. This turns out to be relatively common in liability cases and cases in which the parties have a long-term relationship with each other. It appears that apologies can be seen by courts as an indication that a party to the proceedings has learned from their mistake and will behave differently in the future.^[91] In addition, apologies are sometimes seen as a measure to limit damage.^[92] Furthermore, in some cases, the fact that an apology was given is taken into account as a mitigating circumstance in the assessment of immaterial damage.^[93]

On the other hand, failure to apologise can be held against a party in civil proceedings. In these cases, the failure to apologise is cited as an aggravating circumstance. An example is a labour law ruling.^[94] According to the court, the failure of the employee to apologise implied that the employer could proceed with immediate dismissal without giving the employee the opportunity to tell his ‘story’. The cases discussed in this section therefore result in a double incentive: offering an apology is rewarded, while not offering an apology is punished.

D The court refers to apologies in an obiter dictum

Finally, some decisions were found in which apologies were referred to in an obiter dictum. An obiter dictum is a consideration that is not essential to the decision.^[95] Considerations of this type may be intended to refute objections by the party ruled against or, for example, with a view to the formation of the law, to provide argumentation for a point of view that is not under discussion between the parties in the dispute.^[96]

An illustrative example concerns a case in which a parents’ claim for admission to education for their child was upheld.^[97] Nevertheless, the judge saw it fit to address the parties in an obiter dictum:

‘This decision does not have to prevent [the child] from apologising sincerely in writing to Stebo [the school] for what happened ....’^[98]

The quoted consideration is clearly not argumentative, in the sense that it has no function in resolving the dispute that was brought before the court. The question can be raised as to what purpose the court intended this consideration to serve. The remark that the decision does not have to prevent the pupil from apologising for what happened in writing seems to be aimed at stimulating the pupil to apologise. The court looks beyond the legal dispute and tries to restore the relationship between the parties, among other things, by stimulating the apology. By doing so, the court facilitates the cooperation between the parties in the future. It also appears that the court wants to make clear that the fact that the parents’ claim is upheld does not exempt the pupil from taking responsibility for the incident (and that apologies are still in order). This is also expressed in the opinion on the settlement of the legal costs:

‘It is considered appropriate to compensate the costs of the proceedings between the parties. To that end, it is considered that the conduct of [the child], culpable in itself, was the cause of the dispute which arose between the parties.’^[99]

If we look at these considerations together, it becomes clear how the court feels about the pupil’s behaviour. Although the pupil was vindicated, he is seen as the cause of the dispute that arose between the parties, for which apologies are in order. As a result of these considerations, the school, as the losing party, may find the decision more acceptable.

The case law analysis shows that there are only a handful of such decisions. Nevertheless, these decisions highlight how courts can creatively stimulate the offering of apologies and, as such, they illustrate well how courts can look beyond the legal dispute and try to address the underlying conflict.