04 August 2013


'Apologies as a Legal Remedy' by Robyn Carroll in (2013) 35 Sydney Law Review 317 notes
An apology is an unorthodox legal remedy. Most likely it is also regarded as unsuitable as a remedy in the eyes of many lawyers. Yet we know that apologies are very important to many people, including complainants, litigants and victims of crime and that there has been increasing attention paid by the law to apologies in recent years. The reference to apology in a legal context inevitably raises questions about its meaning. What does an apology involve? What makes an apology meaningful? Is the law concerned whether an apology is given sincerely? Is an ordered apology an apology? This article addresses these and other questions, the role of apologies as a remedy for parties to a civil action, and court orders to apologise, and the grounds on which ordered apologies have been justified. It also refers to the apology as a remedy in litigation and other legal proceedings aimed at advancing public and professional interests by means of economic and professional regulation. The aim of the article is to demonstrate that apologies have an established remedial role in areas of Australian law and to identify some important issues and challenges that arise as a result.  
Carroll notes that
The article draws upon the author‘s published research relating to apology orders, provides an extended analysis of the remedial role of apologies and discusses recent developments. In work to date, the following propositions have been advanced, (sometimes with co-authors):
  • A court exercising equitable jurisdiction has the power to order a person to make an apology, spoken or in writing, in private or in public and to publish the apology in some manner. The order will be one for specific relief. In most cases it would be in the form of a mandatory injunction; if the purpose is to enforce a promise to apologise it will be an order akin to specific performance; 
  • When a plaintiff seeks an apology from the defendant a court should give consideration to the plaintiff‘s remedial choice in exercising its discretion and determining the appropriate remedial response to the defendant‘s wrongdoing; 
  • It is not appropriate for a court to order a defendant to apologise unless this is a remedy sought by the plaintiff; 
  • Aside from the usual discretionary factors that a court considers when deciding whether to grant specific relief, it needs to consider the remedial 'fit' between the aims and purposes of the cause of action and the remedy. Where the relief sought is statutory, a court will also be guided by statutory goals; 
  • An ordered apology, and other forms of specific relief, have the potential to strengthen the vindicatory function of the law and to meet the psychological needs of plaintiffs; 
  • An ordered apology has the potential to be 'good enough‘ to satisfy the purposes of a plaintiff and the law if an apology is understood as having multiple components that need not all be present in all circumstances.
She concludes
This article has identified a variety of circumstances in which an apology is available as a remedy in Australian law. Courts invested with equitable jurisdiction have the power to order an apology using some form of order for specific relief. It is suggested, however, that this is a power a court will be slow to exercise for a number of reasons.
First, common law jurisdictions have a marked preference for monetary remedies in the form of compensatory damages, with equitable remedies ranking second and declaratory relief 'a distant third'. Second, a court is likely to be reluctant to depart from remedies traditionally available for common law wrongs for fear of appeal and possible reprimand for unorthodox use of equitable relief. Third, in exercising its discretion to order equitable relief, a court will be concerned about interfering with the defendant‘s freedom of speech. Fourth, there may be indications of legislative intention that direct courts away from exercising their remedial discretion to develop the apology as an order An order to apologise is more likely to be made pursuant to a power conferred by statute. In this case, the remedy will usually serve remedial and statutory purposes that go beyond meeting the remedial needs of the individual plaintiff. 
Broadly stated, the arguments in favour of ordering an apology as a personal remedy are that it gives effect to a plaintiff‘s remedial preference and it serves remedial purposes beyond compensation. There has been little empirical research conducted to verify what remedial purposes are actually served by legal remedies generally and there is an absence in particular of research into the value attributed to an ordered apology by litigants, courts and lawyers. There is some support in the empirical research referred to in this paper for the conclusion that an ordered apology may be perceived to have psychological value to a person who has been wronged by another. This supports a theory that apology has many meanings and the value people attribute to each apology is highly circumstantial. Accordingly, the absence of willingness and sincerity will not necessarily mean that an ordered apology has no value to a plaintiff. Some of the circumstances identified in this paper in which apology orders can be made involve an order to apologise to the public or a section of the community rather than to an individual. In the absence of empirical research on the effectiveness of these remedial orders, arguably they will rely for their justification on regulatory theories and theories relating to collective apologies. 
There is evidence of growing legal interest in the apology as a means of redress for civil wrongdoing. This article provides an overview of the law on apologies as a remedy and identifies a number of the issues and challenges that need to be addressed if apologies are to play a greater and more formal remedial role than in the past. The potential identified in this article for ordering that apologies be made in circumstances other than when an individual has suffered harm as a result of wrongdoing calls for closer scrutiny and debate, as many of the precepts on which existing orders to apologise have been justified are not necessarily present. As a first step, by ensuring that lawmakers, lawyers, judges and the wider community are aware that orders of this nature can be made, careful consideration can be given to the circumstances in which this is appropriate and to the meaning of apology in the context of legal remedies.