Brent Haywood, Partner in our Dispute Resolution & Litigation team discussed the issues surrounding the new Bill in the Scotsman today (Monday 14 December 2015)

The thinking behind the proposed new law is very noble. It is believed that many of the conflicts we face would be helped if people felt able, when appropriate, to give a heartfelt apology. We know instinctively and from social science that when there is space for an apology, there is also more room for reconciliation and repair of broken relationships. This holds true at a personal level, in business and in the affairs of the nation. A real apology can be enormously powerful and the hope is that this new law will release a new culture where it is okay to apologise.

There are many situations, particularly in the Health and Social Service sectors, where people are concerned about giving apologies for fear of where that might take them. And indeed, anyone who has had cause to actually read their car insurance policy might be surprised to see what it says about admitting anything at the scene of an accident. That is likely to be the line take by lawyers and insurers - ‘keep your mouth shut’.

Theoretically, the way round all this is to make a new law that gives protection to your apology! The Scottish Parliament’s Consultation Paper describes this as a way to create a culture of greater “openness and transparency”.

The Apologises Bill is short - just one page - but it has some major implications. With the exception of Fatal Accident Inquiries and actions for defamation it is intended that any apology which contains an “express or implied admission of fault” or a statement in relation to the “act, omission or outcome” will not be admissible as evidence in the civil courts in Scotland.

What does that mean? Well, returning to the example of your car insurance. Imagine the situation where you bump into the car in front of you and you get out to survey the damage. In the heat of the moment you might say “This is terrible, I am so sorry I ran into the back of your car, I wasn’t looking where I was going”. If the new law is passed that statement would not be admissible in a civil court because your apology would be protected by the law. However, if in the same incident you merely said, “oh no, I ran into the back of your car, I wasn’t looking where I was going” then, without the magic of the apology, that statement would be admissible in a civil court. It all feels rather contrived and artificial.

However, if as a result of the same accident you were charged with a driving offence, even if you apologised, it would not afford you any protection in criminal court. Your apology, and your admission of fault could be used as evidence against you.

This seems to takes us to a rather odd place! When this Bill becomes law, it may be possible for parties in a dispute to admit to wrongdoing or negligence and make admissions safe in the knowledge that if they parcel up those admissions in an apology, nothing can be used in a civil court. Is an apology made in such a situation really an apology at all?

Just now our courts are able to weigh the evidence that comes before them, to consider the nuances of what people say. Legislation like this takes that away and there will be unintended consequences. Without seeking legal advice, how will a person know when they can and cannot make an apology? Then what is a recipient meant to make of the carefully crafted apology that might tie in a number of factual matters so that it automatically becomes inadmissible in court.

In Scottish disputes, apologies are often forthcoming. In Mediation, where parties can agree to confidential discussions people make genuine apologies safe in the knowledge that this won’t be used in litigation.

I am sure our lawmakers see this as positive social engineering, they want to make it easier for people to apologise. However, I fear that when passed this law will complicate, not simplify. I am ‘sorry’ but perhaps there are some areas in life that are better kept free of regulation.