07 July 2016

A Member’s Bill aimed at encouraging apologies in civil legal disputes has recently been passed by the Scottish Parliament.

The Apologies (Scotland) Bill renders evidence of an apology inadmissible in court. The idea is that the legal certainty offered by the Bill will allow more cases to be resolved out of court as apologies will be more forthcoming, particularly in forums such as mediation where apologies can be considered essential to settlement. It is aimed at parties who feel aggrieved by a wrongful act against them but are not interested in the financial award that the court can order should they be successful.

Critics of Bill

Critics from both the Faculty of Advocates and the Law Society of Scotland have suggested that the new law might cloud the distinction between expressing regret and admitting liability.

Changes arising from the Bill

The Bill is seen as more of a clarification of the existing law and less of an innovative measure. The law as it stands dictates that an apology cannot in itself amount to an admission of liability. Authority on the matter, namely Lord Thankerton in Muir v Glasgow Corporation, warned that undue weight should not be given to a witness who expresses regret when giving evidence but instead that the apology should be admitted as one of a number of pieces of evidence on which liability may be found. Similarly, in Bryson v BT Rolatruc Ltd, Lord Osborne noted that the court must consider all the evidence of what happened before the event, and not the subsequent apology. Lady Smith agreed with this approach in George King v Quarriers, stating that the fact that an apology was made was “quite irrelevant”.

Considering these points, the Bill will simply render this one piece of evidence inadmissible: the court will still be able to consider other evidence in order to determine liability. The intention is that defenders cannot ‘’hide behind’’ the new rules. Despite this assertion, the Faculty of Advocate have raised concerns that an admission of liability that would normally be admissible as evidence may now become inadmissible if it is ‘wrapped up’ in the form of an apology. It remains to be seen how the courts will deal with this issue.

It should be noted that the Bill will not apply to criminal cases, Fatal Accident Inquires or defamation actions.

Conclusion

It would appear that the purpose of the Bill is not so much to change the law but to influence people’s perception of the law. It is hoped that apologies may be more forthcoming in an environment where people are less fearful of falling into a legal trap which will in turn help to foster better relations between the disputing parties and allow for more cases to be settled out of court.

Stephen Bryceland Partner sbr@bto.co.uk T. 0141 221 8012