X AGAINST SHERIFF JOHN ALBERT BROWN AND THE LORD ADVOCATE

Factual and Procedural Background

The Plaintiff, a legal practitioner, brought an action for damages against four Defenders, including a sheriff (First Defender), the Lord President (Second Defender), the Lord Advocate (Third Defender), and the Advocate General for Scotland (Fourth Defender). The Plaintiff alleged that the First Defender assaulted her on three occasions and harassed her on four occasions, in breach of section 8 of the Protection from Harassment Act 1997. The First Defender denied these allegations. Complaints were made to the Judicial Office for Scotland and the police, leading to investigations and tribunal proceedings concerning the First Defender's fitness for office. The Plaintiff sought to establish that the Crown (represented by the Third and Fourth Defenders) was vicariously liable for the First Defender's conduct. The Second Defender was later removed from the action. The Lord Ordinary initially held that the Third Defender was the appropriate law officer representing the Crown and considered issues of vicarious liability and time-bar. Both the Plaintiff and Third Defender appealed certain aspects of the Lord Ordinary's decision.

Legal Issues Presented

1. Whether the Crown may be vicariously liable for delicts committed by a sheriff when not exercising judicial functions but which have a close connection to those functions.
2. Whether the relationship between the Crown and a sheriff is akin to employment for the purposes of establishing vicarious liability (stage 1 test).
3. Whether there is a sufficiently close connection between the sheriff's alleged wrongful conduct and his authorized judicial acts to impose vicarious liability (stage 2 test).
4. Whether the claims against the Crown are time-barred under section 17 of the Prescription and Limitation (Scotland) Act 1973.
5. Which law officer (Third or Fourth Defender) is the appropriate representative of the Crown in this action.

Arguments of the Parties

Third Defender's Arguments

• Judicial independence is fundamental and requires that judicial office-holders not be treated as employees or servants of the Crown.
• The Crown (Scottish Government) does not exercise control over judicial office-holders, and the judiciary is not an organisation with a hierarchy akin to employment.
• Judicial office-holders are "true independent contractors" rather than employees or akin to employees.
• The alleged delicts were personal acts unrelated to judicial functions, so the stage 2 "close connection" test is not met.
• The statutory harassment claim is time-barred because the chain of harassment ended with the second incident, which occurred more than three years before service on the Crown.

Plaintiff's Arguments

• Judicial office-holders, while not employees, are sui generis and their relationship with the Crown is akin to employment for purposes of vicarious liability.
• Judicial office-holders are Crown servants in a broad sense, appointed by the monarch and integral to the Crown's administration of justice.
• There is a level of administrative control by senior judges, and the Scottish Government funds salaries and pensions, supporting the akin to employment relationship.
• The alleged assaults and harassment occurred in contexts closely connected to the First Defender's judicial role, satisfying the stage 2 test.
• The third and fourth incidents form part of a course of conduct linked to the judicial office-holder's authority and should not be excluded at this stage.
• The court should exercise discretion under section 19A to allow the time-barred claims to proceed given the delay was due to focus on disciplinary processes and lack of funding, with no prejudice to the Crown.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first clarified that the claim against the Third Defender was on behalf of the Scottish Government as part of the Scottish Administration, which was not challenged. The critical question was whether sheriffs, as judicial office-holders, are akin to employees of the Scottish Government for vicarious liability purposes.

The Court acknowledged the two-stage test from BXB: stage 1 examining the nature of the relationship, and stage 2 assessing the closeness of the connection between wrongful acts and authorized duties.

It found that sheriffs are not employees nor true independent contractors but sui generis. Importantly, the Scottish Government exercises no control over judicial office-holders in their judicial functions, and the judiciary is institutionally independent from the executive. This lack of control and the constitutional principle of judicial independence weigh heavily against characterizing sheriffs as akin to employees.

The Court rejected the argument that judicial office-holders are Crown servants for the purposes of the Crown Proceedings Act 1947 and noted that financial arrangements, such as payment of salaries and pensions by the Scottish Government, were designed to preserve judicial independence rather than indicate an employment relationship.

The Court emphasized that treating judicial office-holders as akin to employees would undermine judicial independence by creating dependencies and perceptions of influence by the executive.

Consequently, the Court held that the Plaintiff was bound to fail the stage 1 test, rendering her vicarious liability claims against the Crown irrelevant and liable to dismissal.

For completeness, the Court observed that had stage 1 been satisfied, the stage 2 test would require detailed factual inquiry, particularly regarding the first two incidents occurring in the courthouse and their connection to judicial duties. The Court also noted that the third and fourth incidents could be part of a course of harassment linked to the earlier incidents, but these matters were not determinative given the failure at stage 1.

Regarding time-bar, the Court agreed with the parties that the common law delictual claims relating to the first two incidents were time-barred but would have allowed the Plaintiff's appeal to exercise discretion under section 19A to permit late proceedings, given the absence of prejudice to the Crown and the Plaintiff's focus on disciplinary proceedings prior to litigation funding.

Holding and Implications

The Court ALLOWED the Third Defender's reclaiming motion and DISMISSED the action against the Third Defender. The Plaintiff's reclaiming motion was refused.

The direct effect is that the Plaintiff's claim for vicarious liability against the Crown, represented by the Third Defender, fails because judicial office-holders are not akin to employees of the Scottish Government, primarily due to the constitutional principle of judicial independence and the absence of control by the Crown. No new precedent was established beyond affirming the primacy of judicial independence in this context. The Plaintiff remains able to pursue claims directly against the First Defender, but the Crown will not be vicariously liable for his alleged misconduct.