The Disputes team at CMS Scotland wrote earlier this year about the introduction of the Apologies (Scotland) Bill. How has the Bill fared as it progresses through the Scottish Parliament?
The Policy Memorandum on the Bill suggests that there is an “entrenched culture in Scotland and elsewhere that offering an apology…is a sign of weakness” and a fear that an acknowledgment of fault may lead to litigation. It notes that “in many cases what the complainer wants most is an apology…and an assurance that …the situation will be reviewed and improved.” The Bill attempts to encourage apologies by providing that the civil courts (with the exception of fatal accident inquiries and defamation proceedings) will not take an apology into account when considering liability.
Progress of the Bill
The Justice Committee published their Stage 1 report on the Bill in September 2015. This followed evidence from the legal profession and others, including a local authority, an ombudsman and health professionals, on the Bill’s potential impact. There was broad support for the general policy objective of encouraging apologies. However some questioned whether legislation was the best way to achieve this result. Questions were also raised about how an “apology” should be defined in the legislation, with a number of witnesses of the view that, rather than including a definition in the Bill, the common law should be placed on a statutory footing along the lines of section two of the Compensation Act 2006 in England and Wales. This is much narrower in scope than what is currently proposed by the Bill; it does not cover admissions of fault, is limited to negligence or breaches of statutory duty and does not necessarily prevent apologies from being admissible in evidence. The definition will be considered further at Stage 2.
In terms of the type of civil legal proceedings covered by the Bill, there was broad support for the exception of fatal accident inquiries and defamation proceedings. However it was suggested that it should be considered whether other types of proceedings, such as public inquiries, tribunals and arbitration proceedings should be added to the list.
Comment: the law of unintended consequences?
Reaction from stakeholders has been mixed, with some remaining sceptical whether this proposed change in the law will bring about a cultural shift on the use of apologies. There is also clearly more work to be done in relation to the detail of what is proposed.
Understanding the potential power of an apology is often critical for any party focused on resolution of a dispute or grievance. To date, mediation has tended to be the most powerful space for deployment of apology, with its invitation, expression and acceptance all delivered face to face in a conciliatory setting. Given apologies at mediation are generally inadmissible as a result of the terms of mediation agreed between the parties, one could query the extent to which the Bill will innovate on the existing territory for the resolution of disputes. With the recent civil justice reforms in Scotland also already having evaluated the compulsory use of mediation and opting not to impose this upon parties, one could also query whether the purpose of the Bill is entirely consistent with that considered approach.
By taking away the rights of litigants to rely upon apologies, will claimants be better or worse off, and, indeed, will defenders actually change existing behaviours as a result of this reform? The Bill will now proceed to a Stage 1 Debate on 27 October, with many querying whether it is capable of achieving the aims intended. We’ll report back with a further update when available.
Further information on the Scottish Parliament Justice Committee’s Stage 1 consideration of the Bill is available here.