Positive Acts of “Grooming” and Introduction to Adult Venues May Bring Subsequent Third‑Party Sexual Abuse Within the Scope of Duty (Relevancy at Debate)

Case: JWE v LGBT Youth Scotland (Court of Session, Outer House)
Citation: [2026] CSOH 6
Judge: Lord Braid
Date: 28 January 2026

1. Introduction

This is a procedural decision at debate (i.e., on the legal relevance of pleadings before evidence) in a damages action by JWE (the pursuer) against LGBT Youth Scotland (the defender), a charity providing youth services for LGBTQ+ young people.

The pursuer (now 31) alleges that, from about age 15, he attended the defender’s youth group and was progressively “groomed” by staff/volunteers—given cigarettes and alcohol, taken out drinking, supplied with identification to access adult venues, and introduced to older men in gay bars. He avers that this led to sexual exploitation and, on particular occasions, sexual abuse by older men unconnected with the defender. He claims £900,000 in damages.

The defender’s debate motion initially sought dismissal but was narrowed to excluding certain averments (especially those narrating third‑party sexual abuse) from probation, thereby restricting the scope of proof.

Key issues argued

Whether a relevant safeguarding duty case was pled against the defender.
Whether Scots law recognises “grooming” as a stand‑alone delict.
Whether the defender could be vicariously liable for staff/volunteer grooming and introductions to adult venues (close connection).
Whether any liability could extend to harm caused by third‑party abusers (scope of duty / intervening criminal acts).

2. Summary of the Judgment

Lord Braid held that the pursuer’s cases on safeguarding, grooming, and vicarious liability were all suitable for inquiry and should proceed to proof. Most importantly, he refused to exclude from probation the averments narrating sexual abuse by third parties unconnected with the defender. On the pleaded case, it could not be said that the pursuer was “bound to fail” in establishing that the defender’s duties (directly, and/or via vicarious liability for SG’s acts) could extend to losses caused by subsequent third‑party criminal acts.

The court fixed an 8‑day proof and refused the defender’s motion to delete the challenged averments.

3. Analysis

3.1 Precedents Cited

(A) Vicarious liability framework

The court applied the modern two‑stage test restated in Trustees of the Barry Congregation of Jehovah's Witnesses v BXB, [2023] UKSC 15 (and noted its Scottish reaffirmation in X v Lord Advocate [2025] UKSC 44):

Stage 1: the relationship (employment or “akin to employment”).
Stage 2: “close connection” between that relationship and the wrongful act.

Stage 1 was not disputed: the workers were accepted as employees or quasi‑employees. The dispute was Stage 2. Lord Braid highlighted the fact‑sensitive nature of close connection, echoing NM v Henderson and Another, 2025 CSIH 22 and its reliance on Trustees of the Barry Congregation of Jehovah's Witnesses v BXB.

The court also drew on Inner House guidance in C and S v Shaw and Another 2023 CSIH 36, including its quotation from Dubai Aluminium Co v Salaam [2002] UKHL 48 that the inquiry is an evaluative judgment “having regard to all the circumstances”.

Influence on outcome: These authorities supported Lord Braid’s refusal to determine “close connection” abstractly at debate where pleadings disclosed factors pointing both ways (some acts within premises/relationship-created risk vs. other acts occurring elsewhere). The message is procedural and practical: close connection often requires evidence.

(B) Scope of duty where harm is inflicted by third parties

The defender relied heavily on Mitchell v Glasgow City Council 2008 SC 351 (Lord Reed’s Inner House dissent) as approved in Mitchell v Glasgow City Council [2009] 1 AC 874, for the general reluctance to impose liability on A for deliberate harm done by C to B.

Lord Braid treated Mitchell v Glasgow City Council as foundational but emphasised what it also affirms: liability for third‑party wrongdoing can arise in certain circumstances, and those circumstances are not closed. He noted:

Lord Reed’s observation (following Lord Goff’s analysis in Smith v Littlewoods Organisation Ltd [1987] AC 241) that examples are “capable of extension”.
Lord Hope’s illustrative categories (not exhaustive), including: the defender creating a source of danger; supervision/control (with Dorset Yacht Co Ltd v Home Office [1970] AC 1004 as exemplar); and assumption of responsibility within the scope of duty (illustrated by R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 and Stansbie v Troman [1948] 2 KB 48).
Lord Scott’s emphasis that the “additional feature” transforming omission into duty may be found in (i) the defender’s positive part in the “train of events”, or (ii) the parties’ relationship (including employment contexts).
Lord Rodger’s point that where the defender’s own act provides the opportunity for third‑party injury, the act being wrongful is “at least a start”.
Baroness Hale’s formulation: there must be a “particular reason” to regard X as having assumed responsibility for protecting Y from Z.

The pursuer’s reliance on Dorset Yacht Co Ltd v Home Office supported the proposition that third‑party criminality does not necessarily break the chain where it is the “very kind of thing” likely to happen as a result of the defender’s wrongful act.

The defender cited N v Poole 2020 AC 780 to resist any inference of assumed responsibility. Lord Braid did not decide assumption of responsibility definitively; he held the issue could not be resolved against the pursuer as hopeless on the pleadings.

Influence on outcome: Mitchell v Glasgow City Council framed the problem (general rule and exceptions), but Lord Braid used the same case to underline that (i) categories are not closed, and (ii) a pursuer may proceed where there are pleaded “additional features” making it “readily understandable” that the defender bears responsibility to protect from third‑party deliberate harm.

(C) “Grooming” as a delict

The pursuer’s argument that grooming should be actionable drew support from Irish authority: Walsh v Byrne [2015] IEHC 414. However, Lord Braid also noted that doubt had been expressed in McDonald v Conroy [2020] IECA 239 regarding whether a stand‑alone tort of grooming exists and what its elements are.

Lord Braid further noted an alternative conceptual route: “grooming” as a modern analogue of the delict of seduction, discussed in Murray v Fraser 1916 SC 623, which in turn quoted Lord McLaren in Cathcart v Brown (1905) 7F 951 for the proposition that seduction required some “fraud or deceit”.

Influence on outcome: The court did not determine whether Scots law recognises a free‑standing delict of grooming. Crucially, the defender accepted that existence/content of the alleged duties and whether the facts fit them could only be determined after evidence. Accordingly, the grooming case was allowed to proof without creating a definitive new delict at this stage.

3.2 Legal Reasoning

(A) Safeguarding duty: relevancy conceded

The defender admitted owing duties of care (contesting only breach/implementation). Lord Braid held the safeguarding averments relevant for proof: the dispute is evidential (what policies existed, were they adequate, were they enforced), not suitable for disposal at debate.

(B) Grooming: left open, but not excluded

Lord Braid did not declare grooming to be a recognised Scots delict. The procedural point was narrower: the defender accepted that duty-existence and breach could not properly be resolved without evidence. The court therefore allowed the grooming case to proceed.

(C) Vicarious liability: “close connection” cannot be rejected as hopeless on these pleadings

Applying the two‑stage test, the sole controversy was close connection. Lord Braid identified factors that could support vicarious liability on the pleadings, including:

Some alleged grooming acts occurring at the defender’s premises.
The defender’s enterprise involving services to “vulnerable young people”, arguably creating and materially increasing the risk of such wrongdoing.
The relationship enabling trust/access which the wrongdoer allegedly exploited.

Factors pointing away (e.g., acts occurring off‑premises) did not justify striking out the case. The evaluative nature of the inquiry required evidence.

(D) Scope of duty and third‑party criminal acts: pleaded “positive acts” and proximate safeguarding relationship make the case arguable

This was the central contested point. The defender characterised the third‑party abuse as too remote and outside any duty: strangers, no control, and intervening criminal acts.

Lord Braid’s reasoning proceeded as follows:

General principle acknowledged: the law is cautious about imposing liability for harm caused by third‑party criminals.
But categories are not closed: Mitchell v Glasgow City Council (and the authorities discussed within it) recognise multiple situations in which liability can arise, and these examples are not exhaustive.
Not an “omission” case on the pleadings: the pursuer’s pleaded case is not merely that staff failed to warn him, but that SG actively groomed him and encouraged/engineered his entry into adult venues, allegedly for the purpose of sexual encounters with adults.
Proximity and safeguarding context: unlike a bare landlord/tenant relationship, the pursuer pleads a relationship in which it is “the defender’s duty to safeguard” him while attending the youth group.
Opportunity and foreseeability of the “very kind of thing”: on the pleadings, the introduction to adult venues is said to have provided the opportunity for sexual assault and exploitation. Where the wrongful act allegedly exposes a vulnerable child to a known risk environment, the subsequent criminal act may be within the scope of the duty (subject to proof).
Procedural threshold: at debate the test is whether the pursuer is “bound to fail”. Given the authorities and the pleaded “additional features”, the pursuer was not bound to fail. Evidence was required.

The result is not a final holding that the defender is liable for the third‑party abuse; it is a holding that the claim is legally relevant enough to be proved.

3.3 Impact

Wider scope-of-duty arguments in abuse litigation (procedurally): The decision signals that, where a pursuer pleads active facilitation (e.g., grooming and deliberate introduction to risky adult settings), courts may be reluctant to strike out claims for downstream third‑party abuse as inevitably irrelevant.
Sharper focus on “omission vs positive act”: Framing matters. Pleadings that characterise conduct as affirmative facilitation may avoid early disposal even where the ultimate harm is inflicted by strangers.
Vicarious liability remains evidence-led: For youth organisations and charities, the judgment underscores that “close connection” is likely to turn on how roles, trust, premises, boundaries, and enterprise risk operated in practice.
Grooming as a potential delict remains open in Scots law: While not decided, the court’s willingness to allow proof keeps open doctrinal development—either by recognising grooming as actionable, treating it as part of established wrongs (e.g., deceit/abuse of trust), or addressing it through causation and scope-of-duty principles.
Safeguarding governance implications: The pleaded criticisms (policies, training, enforcement, staff boundaries) mirror the standard of care increasingly expected of organisations working with vulnerable young people; litigation risk may extend beyond on-premises incidents to foreseeable consequences of boundary violations.

4. Complex Concepts Simplified

Debate / relevancy / “bound to fail”: A preliminary hearing on whether the pleadings disclose a legally sound case. The court does not decide whose facts are true; it asks whether, even if proved, the case could succeed.
Probation / proof: “Probation” means evidence being allowed to be led on an allegation. A “proof” is the trial-like evidential hearing in the Court of Session.
Vicarious liability: A defender can be liable for wrongs committed by an employee (or someone “akin to an employee”) if the wrongdoing is sufficiently closely connected to what the person was authorised to do.
Close connection: Not a mechanical checklist. Courts evaluate whether the wrongdoing is fairly treated as occurring “in the course of employment”, considering role-created trust, opportunity, enterprise risk, time/place, and the nature of the acts.
Scope of duty: Even if there is negligence, the defender is only liable for harms that fall within the purpose and reach of the duty breached. This is distinct from (though related to) factual causation.
Novus actus interveniens: An intervening act (sometimes a third party’s criminal act) that may break the chain of legal responsibility—though it will not necessarily do so if it is the “very kind of thing” made likely by the defender’s wrongdoing.
Assumption of responsibility: A situation where the defender has, by relationship or undertaking, taken on a protective responsibility for the pursuer, making it fair to impose a duty.
Omissions vs positive acts: The law is generally less willing to impose liability for mere failures to prevent harm than for acts that create or materially increase risk. This case proceeds on pleaded “positive acts” (grooming/introduction), not mere inaction.

5. Conclusion

[2026] CSOH 6 is a significant procedural marker in Scottish civil abuse litigation. Lord Braid held that, where a youth organisation is said to owe safeguarding duties and its worker is alleged to have actively groomed a vulnerable child and introduced him to adult venues, a claim for losses arising from subsequent third‑party sexual abuse is not necessarily irrelevant at debate. The authorities—particularly Mitchell v Glasgow City Council and the cases it discusses—do not confine liability to a closed set of exceptions, and the pleaded “additional features” here (proximity, safeguarding context, and alleged affirmative facilitation) warranted proof.

The judgment does not finally establish liability, nor does it definitively recognise grooming as a stand‑alone Scots delict. Its core significance lies in allowing these contested questions—vicarious liability, the content of duties, and the scope of responsibility for third‑party criminal acts—to be tested on evidence rather than struck out on the pleadings.