Mr Conway’s starting point is that this is a problem that does not exist. In part, I agree with that, in that there is no crisis or floodgate of litigation, regardless of what the perception might be.
However, there is a real perception among those on the receiving end of claims that they must not or indeed cannot apologise because, in doing so, they will be seen to have admitted their liability. I realise that there is a good argument that that does not represent the common law. However, that is not the perception, and that perception is, of course, heightened by the existence of the Compensation Act 2006 in England. I have frequently been contacted by clients within and outwith the personal injuries sphere who have been told by the ombudsman to apologise and who say that the ombudsman does not seem to understand that, although that would be protected in England, it is not protected in Scotland.
Again, I agree with Mr Conway that there is a job of explanation to be done. However, straightforward legislation that made it clear that an act of apology, of itself, did not amount to an admission of liability would have great merit.
The committee might be aware that, last week, the Government published its Health (Tobacco, Nicotine etc and Care) (Scotland) Bill, which will legislate for the duty of candour. Section 23 of the bill deals with apologies and, in effect, mirrors the Compensation Act 2006, as it provides that an apology in the context of the duty of candour will not, of itself, be an admission of liability.
By way of practical outcome, if not of starting point, Mr Conway and I are largely in agreement. However, I would say that legislation of some form has a definite role to play. It might be an educative one, but it is also a practical one with a legislative effect in making it clear to those on the receiving end of claims that there is a proper role for an apology that does not bind them to an admission of liability. There is a significant gulf between saying that one is sorry for an event happening—and, indeed, that one is sorry for one’s role in it—and, as a matter of law, saying something that amounts to an admission that there has been negligence or a breach of a statutory duty. It is correct that the law recognises that.
Mr Conway has, of course, taken as his starting point the role of claimants. However, I suggest that the proposed legislation would also have a deleterious effect on defenders. It is quite common that, after an accident, the injured party will say, “I am sorry; that was my fault,” and will find themselves on the receiving end of a plea of contributory negligence. The bill might strike at that and therefore, equally, might strike at what would otherwise be the defender’s interest.
Mr Conway also raised the question of compensation and whether an aim of lowering the value of compensation payments is an end in itself. Again, I accept entirely what he has to say, but the role of an apology may also be to shorten the course of a dispute; it may avoid the matter going to litigation in the first place or, if there is litigation, it may settle more quickly. Accordingly, the outcome may be that the costs of solicitors are reduced and, therefore, the total cost of the settlement and, indeed, the burden on the court service are reduced. That is an appropriate end.
The role of an apology is very important, perhaps particularly in the medical and clinical setting but also more widely. There is a role for promoting that within appropriately formed legislation. I echo the sentiment that that is reflected more properly in the wording in the English legislation, whereby the fact of an apology may be taken into account, but it is not of itself an admission of liability.