Ok – I really do apologise for the headline but I think it’s a good way to draw your attention to the Apologises (Scotland) Act 2016.
So it’s now official. You can apologise in Scotland for a mistake without the apology affecting your legal liability. The Act, which came into force in June 2017 provides that:
“In any legal proceedings … an apology made (outside the proceedings) in connection with any matter –
(a) is not admissible as evidence of anything relevant to the determination of liability in connection with that matter, and
(b) cannot be used in any other way to the prejudice of the person by or on behalf of whom the apology was made”.
Section 3 of the act provides that “an apology means 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.
Whilst the act has only six sections it potentially has a wide reach with significant implications. Whilst some are of the view that the Act will be most relevant to ‘customer facing’ organisations it will be applicable to practically all situations where a business offers goods or services to other businesses or to consumers. With a qualifying apology being either oral or in writing it is extremely important to understand what statements will be inadmissible in legal proceedings.
Remember that the Act’s definition of an apology is an indication that the person is sorry about, or regrets, an act, omission or outcome. So, for example, where the statement includes an undertaking to look at the circumstances with a view to preventing a repeat of, for example poor service, then that will qualify as part of the apology. However if a vendor were to also state that they were at fault because goods did not conform to contract then this may well be admissible as evidence.
This is because the Act’s Explanatory notes provide that an apology “does not include statements of fact or admissions of fault”. So, in the example given, if the statement includes both an apology and a statement of fact and\or admission of fault, then only the apology will be inadmissible as evidence of liability. The admission that the goods dis not conform to contact will be admissible.
Whilst the Act will not have retrospective effect, and will only apply to apologies made after June 2017, it is a welcome piece of legislation. It allows businesses to say ‘sorry’ without fear that such an apology will automatically mean they are liable for a shoddy service. But be careful and note the Law of unintended consequences. Overenthusiastic suppliers may inadvertently ‘go too far’ and by admitting a statement of fact end up with that being admissible as evidence and used against them.
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