Saying sorry – is it enough?

The media are increasingly critical of our so called “claims culture”, and report that increasing numbers of personal injury claims are being litigated through the courts, at great expense to the public purse. What effect would a simple apology have on a potential pursuer? If there was an acknowledgment that something went wrong and an assurance that changes would be made to ensure that no one else finds themselves in the same position, would this be enough to appease a wronged party? The Scottish Government has enacted legislation which will allow us to find out.

The Apologies (Scotland) Act 2016 received Royal Assent earlier this year and will come into force in December. The main driver for the Act is the idea that fear of litigation prevents Scots from apologising. This has a negative impact on our society, as the lack of an apology can lead to people raising court actions, if they feel they have no other recourse. Therefore, it is hoped that the Act will encourage a social and cultural change in attitude towards giving apologies by providing legal certainty that an apology will not be used in later civil proceedings as evidence of admission of liability.

Countries such as the US, Canada and Australia already have apology legislation in place, and Scotland is now following suit. Scottish courts are under huge pressure to deal with an ever increasing number of actions on limited resources. In addition, various private and public bodies have to cover spiralling costs in defending litigation. It was recently reported that the NHS spent £418 million last year in respect of claimants' legal costs, a 43% rise on the previous year, together with a further £120 million in defending cases.

In creating a culture where apologies are given readily, some claims may be capable of being resolved at an earlier stage. Apologising is a normal, natural and socially useful way of putting things right and so the Act is seeking to ensure that no one will be penalised for apologising. The ultimate goal is that there will be a reduction in litigation and, in turn, a reduction in costs.

What qualifies?

The 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 a recurrence”.

To constitute an apology within the terms of the Act, it must include:

1. an acknowledgment that there has been a bad outcome;
2. an expression of regret, sorrow or sympathy for that bad outcome; and
3. a recognition of direct or indirect responsibility for that bad outcome.

In addition, there may also be an undertaking to review the circumstances of the incident with a view to making improvements or learning lessons.

The Act applies to all civil (not criminal) legal proceedings, with the exception of inquiries under the Inquiries Act 2005, Fatal Accident Inquiries, proceedings under the Children's Hearings (Scotland) Act 2011, defamation proceedings and apologies made in accordance with the duty of candour procedure set up under the Health (Tobacco, Nicotine etc & Care) (Scotland) Act 2016.

An apology is only useful if it is accepted, and it is only going to be accepted if it is genuine. Any apology which is expressed in carefully drafted terms may not sound sincere, in which case, it is likely to be rejected. However, simply saying sorry may be admissible in evidence as it does not fit the definition of an apology. It will be for the court to consider whether a statement is an apology, an admission of fault or a statement of fact, the latter two being admissible and capable of being founded on to help establish liability. Importantly, if an insured party is found to have admitted fault, it may be that their insurance cover is invalidated. Therefore, it is essential that advice is taken when considering making an apology.

Positive impact?

The impact of the Apologies Act once it is in force remains to be seen. The hope is that an apology will allow claimants to view their case, and the defender, in a more positive light with less negative emotion. This should facilitate negotiations and it is perhaps more likely that a claimant will accept a settlement offer.

As a personal injury practitioner, I can see the value of, for example, the employer in a workplace being able to say sorry to an injured employee without fear of it being taken as an admission of liability. It may be the first step to mending relations and would set the tone for all future negotiations. In my experience, claimants often use litigation as a way to make the defender see the errors of their ways in the hope that procedures and practices will be changed, and that in future nobody else will have to suffer as they have. If there was an acknowledgment from the defender at the outset and a commitment to making sure it doesn't happen again, this may reassure the claimant and make them more amenable to settling the claim.

Nevertheless, it remains to be seen whether defenders will change their existing behaviour. Sceptics think it is unlikely there will be a cultural shift towards readily giving apologies, and even in circumstances where apologies are given, their genuineness and sincerity is likely to be undermined by the formula set out within the Act. Of course, claimants may also reject the apology, in which case there will be no reduction in the number of court actions.

It will be interesting to see the effect the Act has in practice and whether it does indeed encourage the early resolution of disputes. I certainly think it is worthwhile considering the potential merits of making a (carefully worded) apology at the outset, as sorry should not be the hardest word.