The recently introduced Apologies (Scotland) Bill, proposed as a member’s bill in the Scottish Parliament by Margaret Mitchell MSP aims to introduce a statutory, evidentiary rule that apologies cannot be used as admissions of liability.
The idea behind the bill is to address cases that ‘are not about the money’ where what clients are really seeking is an apology from those who they believe have wronged them.
It is anticipated that this will encourage parties to settle outside of court and also create greater cooperation between the parties.
What will the bill change?
In actuality, the bill is more of a clarification and statement of the current law rather than a change. The bill gives certainty to parties to a case that if they apologise, the apology cannot be used against them as evidence of liability.
However, under the current law of Scotland an apology itself will not amount to an admission of liability. Liability is a legal conclusion that must be drawn by the courts taking all evidence into account.
A good example can be found in the case of Muir v Glasgow Corporation 1943 SC (HL) 3, where Lord Thankerton advised that the court was not to give undue weight to the defendants expressions of regret, and apologies for not taking adequate steps to prevent the accident.
The bill does not however, mean that making an apology will allow the defendant to avoid liability altogether – that is not it’s purpose. Liability can still be proven in the usual manner and an apology will have no relevance for the purpose of assessing damages.
The Apologies (Scotland) Bill will not apply to criminal proceedings, nor to fatal accident inquires or defamation proceedings. This seems to make sense given the seriousness criminal proceedings and fatal accident inquiries and due to the nature of defamation cases.
What could be achieved by the bill?
It is anticipated that encouraging defendants to apologise will influence the way in which claimants perceive the case and the defendant. An apology could affect the way in which the parties reach settlement by making the claimant more willing to negotiate as a result of decreased negative emotion towards the defendant. Receiving an apology can make the claimant think more positively about the future conduct and relationship with the defendant and thus encourage a more positive progression of the case, and more willing acceptance of settlement.
The motivation for the bill was partially to reduce litigation, particularly against the NHS.
There has been a dramatic increase in compensation payments made by NHS Scotland through the clinical negligence and other risks indemnity scheme (CNORIS). Payments have risen from £1.6 million in 2000-01 to £58.24 million in 2010-11. However, these figures do not give an indication of the cost of settlements made out of court, legal fees and all other associated costs that are draining funds from the NHS.