16 November 2017
The Apologies (Scotland) Act 2016 - Little could Margaret Mitchell MSP have known that when proposing her Apologies Bill to the Scottish Parliament back in March 2015, Justin Bieber’s well-known song ‘Sorry’ would follow shortly thereafter. Was it fate? Perhaps not, but the legislation is now in force, having received Royal Assent back in February 2016, and came into effect in June this year with near unanimous cross-party support in Holyrood.
The aim of the Act is to encourage apologies by providing that an apology is inadmissible in most civil proceedings and cannot be used as evidence in determining liability. An apology is inadmissible if it has been given under a “without prejudice” statement, or is made in negotiations aimed at achieving settlement. The apology can either be oral or in writing. The definition of an apology can be found under section 3 of the Act which provides that:
"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 the recurrence".
The Act is a fairly short piece of legislation with a broad scope. It applies to all civil proceedings except four types of specified actions which include inquiries under the Inquiries (Scotland) Act 2005, proceedings under the Children’s Hearings (Scotland) Act 2011, Fatal Accident inquires and defamation proceedings.
It is worth noting that, if an apology also includes a factual statement about the situation, or admission of fault, only the apology itself is inadmissible in evidence. Factual statements and admissions of fault are not covered by the Act. It is therefore important to be clear about what can and cannot be used as evidence of liability. Advice should therefore be sought at an early stage to avoid encountering difficulties later.
It remains to be seen whether an apology made to an injured party will reduce animosity and / or discourage a formal claim being made or whether, if made, it may serve to encourage a claim.
Contact the Insurance team at: insurance@bto.co.uk