Apologies in non-recent abuse cases

Benjamin Franklin was right when he said: “Never ruin an apology with an excuse.”

From an early age, we are all taught when to say we are sorry. It is how we learn that we have done something wrong; it is how we start to make amends and this, in turn, allows us to move on.

However, in the world of litigation, apologies are less straightforward.

Apologies for non-recent abuse are in the spotlight following Edinburgh Academy’s apology for “brutal and unrestrained” historical abuse.

This follows the evidence of a number of witnesses, including BBC broadcaster Nicky Campbell, at the Scottish Child Abuse Inquiry. The allegations included physical violence, sexual abuse and peer-on-peer sexual abuse.

Apologies (Scotland) Act 2016

The Apologies (Scotland) Act 2016 came into force in June 2017. It 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 does not have retrospective effect. It only applies to apologies made after 19 June 2017, and only to legal proceedings which began after that date, even if the matters apologised for took place earlier.

The Implications

Organisations should be mindful of what statements are inadmissible in court, and the impact of apologies can have on insurance cover.

• The Act defines an apology as an indication that a person is sorry or regrets something that has happened. When the statement includes a reference to an investigation with a view to preventing the same thing from happening again, this qualifies as part of the apology.
• However, an apology “does not include statements of fact or admissions of fault”. An admission of fault is evidence of liability.
• Perhaps more crucially, an admission of fault could breach “non-admission” clauses within a contract of insurance. In some cases, this may be sufficient for insurers to refuse to indemnify.

Summary

It follows that you should give careful consideration to the terms of an apology. An organisation should work with their insurer, where necessary, to issue an apology that does not amount to an admission of liability.

It would be prudent to keep in mind PG Wodehouse’s pithy observation: “It is a good rule in life never to apologise. The right sort of people do not want apologies, and the wrong sort take a mean advantage of them.”