In the normal course of life, an apology goes a long way.

We all make mistakes. Recognising that, saying sorry and offering to somehow fix it is a common sense way of dealing with those mistakes.

Until June 2017, organisations were reluctant to offer this simple solution because they worried it could lead to court proceedings.

The Apologies Act

Now they can rely on the Apologies (Scotland) Act 2016. This Act aims to encourage apologies by providing that it is inadmissible in most civil proceedings as evidence relevant to the determination of liability. It cannot otherwise be used to the prejudice of the person or organisation making the apology.

The Apologies Act defines an apology as:

 “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 fact that the definition includes an undertaking is innovative and has not been included in any other jurisdictions.

Point to note

• Qualifying apologies may be oral or in writing.
• Be careful about the wording of the apology. The key part, as defined in the Act, is an indication that the person is sorry about, or regrets, an act, omission or outcome. Where the statement includes an undertaking to look at the circumstances with a view to preventing a recurrence, that qualifies as part of the apology. However, an apology “does not include statements of fact or admissions of fault”. So if the statement includes both an apology and a statement of fact and/or admission of fault, only the apology part is inadmissible as evidence of liability.
• The Act will only apply to apologies made after 19 June 2017, and only to legal proceedings which began after that date.

Is it a wonderful development? We’re not sure.

What does it mean?

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.

Its invitation, expression and acceptance are all delivered face to face in a conciliatory setting.

Apologies at mediation are generally inadmissible anyway.

Recent civil justice reforms in Scotland have already evaluated the compulsory use of mediation. The decision was NOT to impose this upon parties – do is this new law consistent with that approach?

What do you think?

If you require legal advice, please give us a call, 01224 900025