Who’s sorry now? The Apologies (Scotland) Bill

Sometimes, saying sorry can go a long way to resolving a dispute. But if there are potential legal implications involved, you might think twice. Unlike the position in England & Wales[1], Scotland does not have a statutory framework dealing with the effect of an apology on liability.  However, that could be about to change.

The Apologies (Scotland) Bill

The Apologies (Scotland) Bill is currently under Stage 1 consideration by the Scottish Parliament, with responses to committee questions sought before early May 2015.  The Bill is designed to give legal protection to an expression of apology. It provides that in civil proceedings, with the exception of fatal accident inquiries and defamation proceedings, apologies will not be taken into account when considering liability.

An apology is defined as a statement that a person is sorry about an act, omission or outcome. It can be made by the person apologising (which can include a company) or by someone else on their behalf. Express or implied admissions of fault are covered, as are statements of fact in relation to the act, omission or outcome and undertakings to look at the circumstances with a view to preventing a recurrence. The Bill does not have retrospective effect; it will only apply to proceedings commenced after any Act comes into force.

Comment

The Bill has a broader purpose than simply protecting certain statements. It is hoped that the legislation will encourage a “cultural and social change in attitudes towards apologising.” The notes accompanying the Bill cite evidence from other jurisdictions with apology laws suggesting that such laws may lead to a decrease in the amount and cost of litigation. The Financial Memorandum, referring to experience in Michigan, suggests a 50% reduction in personal injury cases in eight years may be possible. It will be interesting to see whether the proposed legislation can achieve its anticipated aims in Scotland, whether in the personal injury sphere or beyond.