Michael McDowell (Dublin South East, Progressive Democrats)

Regardless of the electoral cycle involved, the Law Reform Commission, which was established by the Oireachtas, took the view that the all duck or no dinner aspect to an apology was an inhibiting factor that drove people to litigation and stopped them from acting decently because they put their heads in nooses when they did. I agree with Senators Mansergh and Maurice Hayes that we would like people to behave in a sensible way. If newspaper editors think they have been excessive in what they have said or if they think one of their columnists has been unfair, for example, they should be able to apologise without lawyers immediately saying the liability issue is out of the way and the newspaper's bank accounts should be opened in order that they can bring their shovels and barrows to see how much they can get away with, which is the other side of the equation.

The purpose of the provision is to create a circumstance in which defendants can write to litigants about apologies without all the time thinking they are putting their heads in a noose and kicking the lever on the liability issue. Ordinary people would be better served if newspapers felt they could safely apologise without handing a blank cheque to the litigant whose lawyers can fill in how much he or she will take on foot of an apology. The more full the apology, if it is taken as an admission of liability, the greater the amount that should accompany it in damages. If the newspaper states, for example, "We deeply regret that Senator Hayes's personal feelings have been hurt in this way and we profoundly apologise to him and acknowledge the hurt we have done to him", the decimal point will move a few points to the right. That is the attitude in some cases.

I agree, on a common sense basis, that to apologise is to admit that one has done something wrong by definition. The policy of the statute is to encourage people to acknowledge an error. However, if an individual makes an apology and he or she can forget about defending the case, checking the facts, qualified privilege and so on because it is open season for the lawyers, inevitably, newspaper editors and owners will say it is not worth it. They will ascertain whether the individual is serious about the case but they cannot hand him or her a blank cheque and ask him or her to fill it in. That is the underlying philosophy.

I fully accept Senator Norris's comment that on one level to say one is sorry is to concede an element of fault, for example, where following a car accident the man or woman in the offending car got out and said "I am terribly sorry", and it was relied on in court. The insurance companies always said——