November 2016 – Sorry – Not the Hardest Word

Author: Mitchells Roberton
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The Apologies (Scotland) Act 2016 (“the Act”) will be fully in force by the middle of next month (just in time for Christmas).

What is the Act for?

The Parliamentary Policy Memorandum relating to the Act sets out the policy aims of the Act as follows (with paragraphing added):

  • “There appears to be an entrenched culture in Scotland and elsewhere that offering an apology when something has gone wrong is perceived as a sign of weakness. There is also a fear that an acknowledgement of fault can, in some circumstances, lead to litigation.
  • At the same time, however, it has been found that, in many cases, what a complainer most wants is an apology, recognition of the situation, and an assurance that the circumstances leading to the situation will be reviewed and improved.
  • The Bill seeks to address this situation by legislating to remove the possibility of an apology being used as evidence of liability in certain civil legal proceedings.”

Before the Act did an apology determine liability? 

  • The short answer is no.
  • But, before the Act, if an accident occurred or something went wrong and the person responsible said “sorry” (in one way or another) that might prove relevant in a court case as pinning legal liability on them. An awareness of that possibility tended to make people reluctant to say anything which might be taken to be an apology.

A bit more on the policy behind the Act 

  • The main aim of the Act is to stop apologies being used as evidence in a court case. But the Act has wider aims. It is intended to dispel the notion that by apologising  a person is more likely to face litigation and to get away from the idea that the making of an apology could be viewed unfavourably, perhaps suggesting weakness on the part of the apology maker.
  • In providing legal protection to an expression of apology, it is hoped that the Act will reduce the inhibitions about apologising that many people currently feel.
  • It is also hoped that this change in approach will, over time, create a less confrontational climate and promote co-operation and openness, along with a greater willingness to learn from previous incidents. It is expected that it will lead to a reduction in the number of potential pursuers inclined to litigate, where a sufficient apology has been provided, and bring closure to complainants.
  • The Act will not, however, prevent anyone from pursuing litigation or seeking redress by other routes.

What does the Act actually say?

  • The Act defines an “apology” like this:

“any statement made by or on behalf of a person which indicates that the person is sorry about, or regrets, an act, omission or outcome and includes any part of the statement which contains an undertaking to look at the circumstances giving rise to the act, omission or outcome with a view to preventing a recurrence.”

  • And section 1 of the Act restricts the use of apologies made outside legal proceedings from being used in “legal proceedings” as evidence when it comes to establishing liability. It also prohibits such apologies being used in any other way in legal proceedings “to the prejudice of the person by or on behalf of whom the apology was made”.
  • An apology may be written or oral and made by an individual or on behalf of an organisation and includes an apology made “on the spot” or after careful deliberation.

What counts as “legal proceedings”? 

  • The Act applies to all legal proceedings subject to various exceptions the main exceptions being:
  • criminal proceedings;
  • inquiries which the Scottish Ministers cause to be held under the Inquiries Act 2005 into e.g. particular events have caused, or are capable of causing, public concern;
  • proceedings under the Children’s Hearings (Scotland) Act 2011;
  • inquiries under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016; and
  • defamation proceedings.

Explanation for two of the exceptions

  • Two of the exceptions listed above call for some explanation:
  • There is an exception for fatal accident inquiries to take account of the public interest in ensuring that all relevant evidence may be led and hence that the sheriff‘s determination can set out fully the circumstances of the death.
  • The Defamation Act 1996 contains an “offer to make amends”‖procedure whereby a person who has published a statement alleged to be defamatory of another can offer to make amends involving a “suitable correction of the statement complained of and a sufficient apology to the aggrieved party”.
  • The making of such an “offer of amends” can be relevant to subsequent court proceedings: it may be relied upon in a defence to defamation proceedings, and may also be relevant to the amount of any award. Accordingly, defamation proceedings are excluded for the ambit of the 2016 Act.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: pdn@mitchells-roberton.co.uk

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