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Saying sorry in a crisis – the thorny issue that can divide lawyers and PR

Posted on 12 August 2022

People often ask me how the role of a reputation lawyer overlaps with crisis PR. My response is generally a mix of metaphors: that crisis communications are the ying to our yang, the good cop to our bad, and that effective crisis management requires us to work hand in glove.

At Mishcon de Reya, we work alongside comms professionals in almost every reputational crisis we manage for clients. Whether the PR team are internal or external, incumbent or crisis specialists brought in to deal with the particular issue, we know that it is important to establish quickly a strong and mutually-respectful relationship, to avoid any potentially unhelpful ego challenges, and to divide tasks and work together in a strategic and pragmatic way. Typically, whilst comms are liaising with journalists and monitoring social media, and preparing statements and Q&As, we are interrogating the facts and analysing potential exposure, sending pre-and post-publication warnings to publishers, and sometimes preparing for urgent legal proceedings (for example where confidential data has been stolen). Both teams are mapping and engaging with the client's various stakeholders, with messages crafted for each audience bespoke but in line with the overarching (evolving) strategy. The legal advice feeds into the comms piece, and vice versa. Any potential for duplication and higher cost is far outweighed, in my view, by the benefit of approaching key decisions from varying perspectives.

In the 15 years I have worked at Mishcon, I have come across only a few sharp-elbowed PRs. Otherwise, I am privileged enough to have a wealth of collaborative professionals I can call on when I put teams together, equally focused on rolling their sleeves up and pulling together. And yet…

I have recently enjoyed two opportunities to spend time and share war stories with some very impressive and experienced crisis PR professionals. In April, I was invited to speak at a CIPR Network Event, around saying sorry in a crisis. Last month, I travelled to Jersey with crisis experts from Polpeo, who were there delivering training for the PRCA. Both were great fun and very insightful, but also highlighted that my own positive experience is not universal. Apparently, PR professionals regularly find lawyers to be obstructive, overly cautious and unwilling to look at the bigger picture. One of the most common frictions, I heard, was their concern that lawyers will rule out making an apology. (See here for a neat summary of the problem by Polpeo.)

I am a litigator but also acutely aware that there is sometimes a real benefit to issuing an authentic and empathetic apology which, ideally, reserves the client's rights in the event of future claims and does not nullify your insurance. Detailed thinking should be invested in advance, as part of routine crisis planning, around the circumstances in which a business would be prepared to apologise, and how it will assess and weigh up the legal and reputational risks of expressing contrition in a crisis situation.

So, why do companies in particular find it so hard to say sorry?

"Compensation culture"

What emerged from a perceived "liability crisis" in the 1990s and early 2000s, of soaring litigation with knock-on effects for the insurance industry, was a global explosion of 'apology legislation', aimed at removing the legal disincentive to apologise. The idea was to carve out a way to say sorry without automatically admitting liability and voiding insurance coverage, which in turn might reduce the propensity to sue. 

There are marked differences in apology legislation worldwide. The most comprehensive is in British Columbia, Canada, which not only protects apologies that include a general sense of sympathy or benevolence, but also admissions of fault or wrongdoing, as well as admissions of relevant facts. Crucially, the law prevents an apology from affecting insurance contracts.

Our own apology legislation in the UK, by contrast, provides far less compelling or clear protection. Section 2 of the Compensation Act 2006 states that “an apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty”. The clause is poorly drafted, with no clear definition of or criteria for an apology, and 'of itself' is unhelpfully ambiguous. As a result, the law has been infrequently used, there is scant judicial guidance about how it would be applied, and there remains low awareness of its existence or confidence that it might be relied on.

Most recently in 2019, the Compensation Act was referred to in a case involving an independent school which was found to have discriminated against a 10-year-old boy by permanently excluding him. Unusually, when ordering the school to reinstate the boy, the Tribunal also ordered the school to apologise to him. The case provided a rare opportunity for judicial examination of the value of an apology. The appeal court considered how apologies are used as a remedy in other areas of the law (e.g. the offer of amends procedure in defamation), and how the law recognises the value of an apology (e.g. in criminal law, where those who plead guilty get lower sentences, because guidelines instruct judges to give more lenient sentences to offenders who appear “genuinely remorseful for the offending behaviour”). The boy's parents argued, successfully, that apologies are intrinsically valuable – that they are very important to many people and may provide solace for the emotional or psychological harm caused by unlawful conduct. 

Meanwhile, there is a long-running online campaign to raise awareness of, and to clarify the Compensation Act, so that businesses are encouraged to apologise where appropriate.

Still, beware of insurance

Business insurance contracts typically contain 'no admission' clauses: any statements that could be construed as an admission of wrongdoing could undermine coverage. It is crucial, therefore, not just to check the relevant clauses, but to involve insurers during any consideration around a potential apology. These conversations could be initiated early on, even as part of advance risk management and crisis planning. Whenever you engage, it is worth putting forward the case that expressing remorse may well reduce reputational and other damage in the long term.

Commercial considerations

Even if you cannot be sure that the law or your insurance will protect an apology, there may still be very good reasons to apologise:

  1. An apology can help a business to salvage its reputation by demonstrating that it actually does care, and is committed to doing the right thing. This can be very important from a culture perspective, and do much to ensure that employees and stakeholders remain loyal. See Disney CEO Bob Chapek's recent U-turn, when he apologised sincerely for not having publicly opposed Florida's "Don't Say Gay" bill, after an outcry from employees.
  2. An apology could help avoid litigation, especially where the harm suffered is minor. Alternatively, it might help break an impasse in negotiations, allowing a dispute to conclude more quickly and on more favourable terms, either by narrowing the contested issues and reducing the length of trial or by enabling early settlement. This means lower legal costs, less management time spent on the dispute, and a better chance of salvaging a longstanding relationship with the other side, particularly if the injured party is a business' client's consumers.
  3. Crucially, an apology should avoid a long dispute played out in public. A well-cited example is of travel company Thomas Cook, which refused to apologise when two young children died from carbon monoxide poisoning whilst on a Thomas Cook package holiday in Corfu in 2006, even after a coroner's inquest concluded that Thomas Cook had breached its duty of care. Arguably Thomas Cook missed the opportunity to rebuild trust with customers after what appeared to be an isolated incident and despite the new procedures it put in place after the tragedy. Had Thomas Cook apologised early and paid compensation it may have avoided the far greater reputational damage – and expensive re-brand and subsequent un-re-brand – that followed. 

The decision is in the detail

A key pressure against providing an apology tends to be that the apologising party has insufficient information. Often crisis situations involve significant time pressure, and executives and lawyers are understandably wary about saying sorry and potentially admitting liability without knowing what legal and financial exposure that admission could lead to further down the line.

Every case is specific to its facts and you must always take specific legal advice. The decision about whether to apologise (and, if so, how fulsome the apology is, when it is delivered, who it is delivered by, what actions are taken after the apology etc.) will be influenced by the level of harm caused, and how clear the evidence is that the business was responsible for and/or could have prevented the loss. 

As with everything crisis related, planning is key. It is important to ask and answer the difficult questions. Who has suffered the loss? How serious is it? What will the injured party and other stakeholders expect? What is the likely level of culpability and maximum exposure? What do you need to do to find out? What would an apology achieve? Why would you not offer one? Who should any apology come from?

Above all, when crisis planning, leadership teams would do well to consider what level of contrition and potential legal exposure they might be willing to accept, by apologising and trying to help people to move forwards, and to do so ahead of time – before pride, panic and emotion kick in.

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