On 19 June 2017 the key provisions of the Apologies (Scotland) Act 2016 quietly came into force, having received Royal Assent in February 2016. A short but significant Act, the lack of fanfare may belie its relevance. What does the Act do – and what are the practical implications for everyone who deals with complaints?
What does the Act do?
The Act aims to encourage apologies by providing that an apology is inadmissible in most civil proceedings as evidence relevant to the determination of liability, and cannot otherwise be used to the prejudice of the person or organisation making the apology.
The Act will be relevant to the customer-facing parts of organisations. It was originally envisaged that guidance would accompany the Act, for example to explain the benefits of apologising early and fully when mistakes are made, and to give examples of apologies that deliver a satisfactory outcome for both parties, helping them to achieve a resolution without recourse to litigation. However, the guidance has not yet been published. Academic commentary and case law may clarify grey areas in future, but in the meantime, the following considerations are worth noting:-
Qualifying apologies may be oral or in writing.
Be mindful about what statements are inadmissible in legal proceedings. The core element of an apology, 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, the Explanatory Notes to the Act state that an apology “does not include statements of fact or admissions of fault”. In any statement that includes both an apology and a statement of fact and/or admission of fault, only the apology is inadmissible as evidence of liability. It follows that you should give careful consideration to the terms of an apology.
The Act does not have retrospective effect; it will only apply to apologies made after section 1 of the Act comes into force (19 June 2017), and only to legal proceedings which began after that date, even if the matters apologised for took place earlier.
With only six sections, this is a short Act, but for those in the front line of complaints handling, it will be important to understand its reach and the potential implications.