Legislating British manners

Some things are invariably associated with being 'British', and close to (if not at) the top of that list would be apologising.

Able to apologise for someone else bumping into them, the British are culturally very adept at politeness.

A reading of the Scottish legislature's Apologies (Scotland) Bill, which is designed to stop apologies being used as evidence of liability in civil proceedings, therefore gave rise to mixed feelings.

The concept that legislation is needed to safeguard something so inherently British seemed wholly discordant to my (admittedly British) sensibilities, and it is difficult to be reconciled to the idea that civil law and the compensation culture within Britain - and Scotland in particular - could have grown and encroached to such an extent as to require such legislative intervention.

England and Wales have already crossed that legislative Rubicon, in the form of section 2 of the Compensation Act 2006.

The English Act

Section 2 provides: 'An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.'

Unlike the idea of an entire Act on
the issue, the one section of the Compensation Act reads as a short, neat, 'cut and dry' legislative safeguarding of this particular cornerstone of British culture.

So great is the brevity with which the section deals with the issue that it does not even define what constitutes an 'apology', nor provisions regarding admissibility of the same. The explanatory notes accompanying the Act state that the provision 'is intended to reflect the existing law'.

That an apology does not equate to an admission is among the first things learned by law students, with cases such as Muir v Glasgow Corporation [1943] UKHL 2 ringing nostalgic academic bells. A brief perusal of case law shows the court continues to find no liability in certain cases where defendants have apologised, or expressed a retrospective wish to have acted differently.

Why, if the law was already clear, would this legislation be introduced but for a fear of the compensation culture?

The Scottish Bill

The Bill, like section 2 of the Compensation Act, declares the intent to stop apologies being used as evidence of liability in civil legal proceedings in Scotland.

However, unlike section 2 of the Act, the Bill goes further, stating a larger aim of 'bringing about social and cultural change in relation to apologising'.

On first reading, this statement of intention gave cause for concern. The Bill appeared to be, as I feared, an entire piece of legislation born from the fear of an insidiously creeping compensation culture.

In Scottish case law, as with English and Welsh, precedents are already in place that would not require legislation. In Bryson v BT Rolatruc Ltd [1998] Scot CS 22, the judge concluded in respect of the apology made that '[the defendant] might have apologised… but he would not have used words which indicated an acceptance of legal responsibility for the accident'.

The latter is crucial, as those apologies made in a most British fashion are not of themselves a fully informed legal cessation of liability. So evident is the point, I do not believe any layperson would expect such apologies to be so. Any legislation to the point is surely then born of the growing fear of a compensation culture.

As evidenced by its nature as
a full Bill rather than a single clause, the Scottish legislation is not aimed at safeguarding but is a by-product of the fear of a compensation culture.

Although it may in fact safeguard an element of British identity, it does so by making it a victim of such a culture.

The survival of British manners

Can the same be said of the Act? Sadly, yes.

While I wished this British
trait could have survived the growing compensation culture unmolested, and although, at first reading, the brevity of section 2 led me to hope, on a reading of Hansard the same hope was thwarted.

The concern as to the compensation culture was clearly recognised in the debate for the Act, seen in the words of Baroness Ashton: 'The Bill is an important contribution to a much wider programme of work. The government are taking forward many other important initiatives, on which I am proud to lead, to tackle perceptions of a compensation culture…'.

So, British manners survive, but only by falling victim to the compensation culture that in turn safeguards them.

For those of you hoping for a different outcome to this article,
I do apologise. SJ

Chris Neale is a litigation assistant at Bott and Co