Case Summary – Vicarious Liability of the Crown for Acts of a Judicial Office-Holder

Factual and Procedural Background

The appeal concerns whether the Crown is vicariously liable for delicts allegedly committed by a member of the Scottish judiciary. The pursuer, a legal practitioner who is anonymised by order of the court, is both the pursuer and appellant. The first defender is a sheriff (a judicial office-holder) who, at all material times in 2018, sat in that judicial office. Following separate fitness-for-office proceedings before a tribunal constituted under the Courts Reform (Scotland) Act 2014, the sheriff was later removed from office by the First Minister in June 2024. The second defender (and respondent to this appeal) is the Lord Advocate, sued as representing the Scottish Ministers (i.e. the Scottish Government as part of the Scottish Administration).

The pursuer alleges four incidents in 2018:

• First incident (18 May 2018): At court, after a case before the sheriff could not proceed due to technical difficulties, the pursuer encountered the sheriff in a reception area, apologised, and the sheriff allegedly placed his hand on her cheek without consent.
• Second incident (5 July 2018): While the pursuer was at court in the course of her work, the sheriff summoned her to chambers via a bar officer. Once the bar officer left, the sheriff allegedly hugged the pursuer without consent, used inappropriate terms such as “your pretty face”, and again hugged her, allowing his face to linger on her shoulder until she signalled a wish to leave. The pursuer felt unable to leave due to the sheriff’s status and the secure setting. As he escorted her towards an exit, he allegedly patted her firmly on the bottom as she passed through a door. She then ran to the public area.
• Third incident (19 July 2018): On a train, the pursuer was approached by the sheriff, who said he had been looking for her, sat next to her, and allegedly placed his hand on the inner thigh of her right leg. She moved her bag onto her lap to prevent further contact. This conduct was also without consent.
• Fourth incident (24 August 2018): After the pursuer reported the sheriff’s conduct to her superiors and lodged a complaint with the Judicial Office on 7 August 2018, the sheriff allegedly made a FaceTime call to her phone. She did not answer and reasonably believed the call was in response to her complaint, prompting a further complaint to the Judicial Office.

It is not disputed in the appeal that, assuming the alleged facts to be true, the sheriff’s conduct in the first three incidents amounted to assaults for which he would be liable in delict, and that the four incidents taken together arguably constitute a course of conduct amounting to harassment under the Protection from Harassment Act 1997. For the purposes of this appeal, it is assumed that the sheriff is liable in delict for assault and for harassment; however, the sheriff denies the allegations, and the factual question of whether he actually committed these delicts remains undecided.

The proceedings before the Supreme Court concern only the relevance of the pursuer’s claim that the Crown is vicariously liable for those delicts, i.e. whether the claim is bound to fail in law.

In the Outer House of the Court of Session, the judge held that, leaving aside time bar, the claim for vicarious liability against the Crown was relevant in respect of the first two incidents but not the third and fourth. The judge further held that the vicarious liability claims in assault were time-barred under the Prescription and Limitation (Scotland) Act 1973, but that the harassment claim was not. The judge also ruled that the Lord Advocate was the appropriate law officer to represent the Crown in this litigation, because the alleged liability arose “in respect of” the Scottish Administration, specifically the Scottish Government, which has responsibilities for judicial appointments, removals and remuneration.

In the Inner House, the Lord Advocate reclaimed (appealed) on the vicarious liability issue, and the pursuer appealed on time bar. The Inner House allowed the Lord Advocate’s appeal, holding that the claim for vicarious liability was bound to fail at stage 1 of the vicarious liability test (relationship akin to employment). Consequently, the pursuer’s time‑bar appeal fell away, though the Inner House indicated that, if required, it would have allowed her appeal on that issue. The pursuer now appeals to the Supreme Court solely on the vicarious liability issue.

Legal Issues Presented

1. Whether, on a proper interpretation of section 2(1)(a) of the Crown Proceedings Act 1947, the Crown can be vicariously liable in delict for wrongs committed by a Scottish judicial office‑holder, and whether that provision incorporates the modern common law doctrine of vicarious liability (including relationships “akin to employment”) or is confined to “servants or agents” in a narrower, self-contained statutory sense.
2. What “the Crown” means for the purposes of vicarious liability under the 1947 Act, in particular whether the relevant liability must arise “in respect of” His Majesty’s Government in the United Kingdom or the Scottish Administration, and whether the Scottish Government is the relevant manifestation of the Crown in this case.
3. Whether, applying the modern two‑stage test for vicarious liability, the relationship between the Scottish Government (as part of the Scottish Administration) and a sheriff is “akin to employment” at stage 1, such that the Crown could in principle be vicariously liable for the sheriff’s alleged assaults and harassment.
4. Consequently, whether the pursuer’s case that the Crown is vicariously liable is relevant (i.e. has a real prospect of success) or is bound to fail in law.

Arguments of the Parties

Appellant’s Arguments

• Primary construction of section 2(1)(a): Counsel for the pursuer argued that section 2(1)(a) of the Crown Proceedings Act 1947 defines exhaustively the class of persons whose delicts can give rise to vicarious liability of the Crown. On this view, the provision does not track subsequent developments in the common law doctrine of vicarious liability (such as the extension to relationships “akin to employment”), but instead makes the Crown vicariously liable only for delicts of its “servants or agents”.
• Automatic satisfaction of stage 1: On that primary approach, if a judicial office‑holder is a “servant of the Crown” within the meaning of the Act, stage 1 of the vicarious liability test (existence of employment or a relationship akin to employment) would automatically be met, even if, at common law, the relationship would not be categorised as one of employment or quasi‑employment.
• Judicial office‑holder as Crown servant: The pursuer contended that a Scottish judicial office‑holder should be treated as a “Crown servant” for these purposes. Support was said to come from:
  • The way in which the 1947 Act tends to elide “officer” and “servant” (for example in the interpretation section), which has been understood by commentators as making these categories co‑extensive for practical purposes in that statute.
  • Academic commentary suggesting that officers of the Crown are, in substance, servants for the operation of the Act.
  • A dissenting judgment in a Privy Council case, where it was suggested that a Crown servant may perform functions of the Crown (including judicial functions) even if they are independent of, and not under the control of, the government in performing those functions.
• Alternative submission – relationship akin to employment: If the primary submission on the self‑contained scope of section 2(1)(a) were rejected, the pursuer argued in the alternative that, applying the modern common law test, the relationship between the sheriff and the Scottish Government is in fact “akin to employment”, so that stage 1 of vicarious liability is satisfied.

Respondent’s Arguments

The opinion does not contain a distinct, itemised summary of the respondent’s legal submissions separate from the court’s own analysis.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Macgregor v Lord Advocate 1921 SC 847	Illustration that, prior to 1947, the Crown was immune from liability in delict in Scotland, as in the English law of tort.	Used to explain the historical background and purpose of the Crown Proceedings Act 1947, which removed Crown immunity in tort and delict.
BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15; [2024] AC 567	Authoritative statement of the modern two‑stage test for vicarious liability: (1) relationship of employment or akin to employment; and (2) close connection between that relationship and the wrongful act.	Relied on as setting out the applicable common law test for vicarious liability, accepted as equally applicable in Scotland.
R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255	Modern approach to statutory interpretation: ascertain the meaning of words in light of their context and the purpose of the provision.	Cited as part of a series of authorities establishing the contextual and purposive approach to interpreting section 2 of the 1947 Act.
News Corp UK & Ireland Ltd v Revenue and Customs Commissioners [2023] UKSC 7; [2024] AC 89	Reaffirmation of the contextual and purposive method of statutory interpretation and detailed discussion of the “always speaking” principle.	Used to support the view that, so far as statutory wording allows, section 2(1)(a) should be read as accommodating subsequent developments in the common law of vicarious liability.
R (N3) v Secretary of State for the Home Department [2025] UKSC 6; [2025] 2 WLR 386	Example of the Supreme Court reiterating the modern approach to statutory interpretation.	Cited, together with other recent authorities, to reinforce the interpretative framework applied to the 1947 Act.
Darwall v Dartmoor National Park Authority [2025] UKSC 20; [2025] AC 1292	Further recent authority on purposive, contextual statutory construction.	Formed part of the line of cases underpinning the interpretative methodology applied to section 2 of the 1947 Act.
Ranaweera v Ramachandran [1970] AC 962 (PC)	Contains a dissenting judgment suggesting that a Crown servant performs functions of the Crown, including judicial functions, even if independent from governmental control.	Invoked by the pursuer (via secondary material) as supporting the proposition that judicial office‑holders can be “servants of the Crown” notwithstanding their independence.
Town Investments Ltd v Department of the Environment [1978] AC 359	Includes a dictum equating “the Crown” with “the government” for the purpose of discussing executive powers and Crown immunity from the application of statutes.	Discussed to clarify that this dictum, dealing with executive powers and the rule that statutes do not bind the Crown absent clear words, cannot simply be transplanted into the distinct context of tortious or delictual liability under the 1947 Act.
Cooper v Hawkins [1904] 2 KB 164	Example of the rule that statutory provisions do not bind the Crown or its servants unless clearly expressed, resulting in an acquittal for a Crown employee on a speeding offence.	Cited to show how the traditional rule that the Crown is not bound by statutes extended to servants of the Crown, and to distinguish that context from the 1947 Act’s regime for civil liability.
M v Home Office [1994] 1 AC 377	Establishes that ministers can be personally liable for unlawful acts and should not be equated with the Crown itself for tortious liability; discusses the role of courts in enforcing the law against the executive.	Used to emphasise the crucial distinction, preserved by the 1947 Act, between the legal personality of the Crown and that of its officers and servants, and to support the proposition that wrongful acts of ministers are not automatically acts of the Crown.
Adams v Naylor [1946] AC 543	Criticised the pre‑1947 practice of nominating defendants to be sued in place of the Crown, highlighting deficiencies in that system.	Cited as part of the historical explanation for why Parliament enacted the 1947 Act to create a direct route for civil claims against the Crown.
Royster v Cavey [1947] KB 204	Further example illustrating shortcomings in the pre‑1947 practice of suing nominated defendants instead of the Crown.	Used, together with Adams v Naylor, to explain the legislative context leading to the Crown Proceedings Act 1947.
British Medical Association v Greater Glasgow Health Board 1989 SC (HL) 65; [1989] AC 1211	Considered whether proceedings against a health board constituted “proceedings against the Crown” under the 1947 Act, and highlighted the importance of section 17’s mention of authorised government departments.	Relied on for the proposition that section 17 of the 1947 Act, though not directly applicable in Scotland, helps identify the sort of proceedings Parliament envisaged as being “against the Crown”, thereby informing the scope of the Act.
Trawnik v Lennox [1985] 1 WLR 532	An illustration of the territorial limitation of the 1947 Act; the Act did not apply to liabilities arising from a military base in Germany.	Cited as an example of Crown functions that fall outside the scope of “His Majesty’s Government in the United Kingdom or the Scottish Administration” and thus outside the 1947 Act’s regime.
R v Secretary of State for the Home Department, ex p Bhurosah [1968] 1 QB 266	Example of Crown liability arising in right of another territory (here, Mauritius).	Used to illustrate that some Crown capacities, in respect of overseas territories, fall outside the liability covered by the 1947 Act.
Franklin v Attorney General [1974] QB 185	Case concerning Southern Rhodesia, illustrating another territorial capacity of the Crown.	Cited as part of the demonstration that the Crown may act in capacities other than “in right of His Majesty’s Government in the United Kingdom or the Scottish Administration”.
Mutasa v Attorney General [1980] QB 114	Also concerned with Southern Rhodesia, further illustrating different territorial capacities of the Crown.	Reinforced the point that liabilities arising in respect of some overseas territories are not liabilities “in respect of” the UK Government or the Scottish Administration.
R v Secretary of State for Foreign and Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892	Held that certain liabilities were in respect of the Crown in right of Canada.	Used as an example of Crown liability arising in a non‑UK capacity, underscoring the limited scope of the 1947 Act.
R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529	Held that the Secretary of State acted on behalf of the Crown in right of South Georgia and the South Sandwich Islands.	Cited to show that acts of UK ministers can be done in a Crown capacity distinct from “His Majesty’s Government in the United Kingdom”, again illustrating the multiplicity of Crown capacities.
Calvin’s Case (1608) 7 Co Rep 1; 77 ER 377	Early authority illustrating the concept of the Crown acting in different capacities.	Referred to in support of the idea, later reflected in modern statutes, that the Crown has multiple, distinct capacities.
Case of the Duchy of Lancaster (1561) 1 Plow 212; 75 ER 325	Recognises the distinction between the Sovereign’s private capacity and public capacity, including in relation to the Duchy of Lancaster.	Used to support the proposition that the Crown can act in private and public capacities, a distinction preserved in the 1947 Act.
Case of Sutton’s Hospital (1611) 10 Co Rep 23; 77 ER 960	Authority treating the Crown as a corporation sole, a legal entity with perpetual succession.	Cited to support characterising the Crown as a corporation sole, consistent with the interpretation that “the Crown” in the 1947 Act refers to the Sovereign in an official capacity.
Attorney General v Köhler (1861) 9 HL Cas 654; 11 ER 885	Also recognises the Crown as a corporation sole.	Used, along with other historic authorities, to underpin the analysis of the Crown’s legal personality and capacities.
In re Mason [1928] Ch 385	Notes that in some respects the Crown differs from other corporations sole.	Cited to acknowledge nuances in treating the Crown as a corporation, while still supporting the core point that the Crown is a corporate legal person.
Willion v Berkley (1561) 1 Plow 223; 75 ER 339	Recognises the distinction between the monarch’s private capacity and public office.	Supports the conceptual separation between the Sovereign as a private individual and as holder of a public office from which executive, legislative, and judicial powers flow.
Prohibitions del Roy (1607) 12 Co Rep 63; 77 ER 1342	Establishes that all judicial authority is derived from the Crown’s commission, though the monarch cannot personally exercise judicial office.	Cited to explain that judicial power is commission-based and distinct from the Crown’s executive functions, relevant to the scope of liability under the 1947 Act.
Gilham v Ministry of Justice [2019] UKSC 44; [2019] 1 WLR 5905	Held that a district judge was not a “worker” nor in Crown employment for the purposes of whistle‑blower protection; emphasised fragmentation of responsibility for the judiciary and the constitutional separation of powers.	Relied upon as persuasive support for the conclusion that judges are not in a conventional employment relationship and that the constitutional context (judicial independence and separation of powers) weighs against treating them as employees or quasi‑employees.
Various Claimants v Barclays Bank plc [2020] UKSC 13; [2020] AC 973	Clarified that the concept of a “worker” under employment legislation is distinct from the test for vicarious liability, though the broader constitutional context may still be relevant.	Cited to acknowledge that the issue in Gilham (worker status) is different from vicarious liability, while confirming that constitutional considerations discussed there are also relevant to the vicarious liability analysis.

Court’s Reasoning and Analysis

1. Interpretation of section 2(1)(a) of the Crown Proceedings Act 1947

The Supreme Court treated the construction of section 2(1)(a) as the core issue. It accepted that the provision is concerned with the vicarious liability of the Crown in tort/delict but rejected the pursuer’s contention that section 2(1)(a) forms a self‑contained code limited strictly to “servants or agents”.

The Court examined the structure of section 2. Subsection (1) sets out three broad heads of liability: (a) vicarious liability for torts committed by servants or agents; (b) employer’s liability to servants or agents; and (c) duties attaching to ownership, occupation, possession or control of property. Subsection (2) addresses liability for breach of statutory duty. For each head, the Act provides that the Crown shall be subject to “all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject”.

From this, the Court inferred that section 2(1)(a) has the purpose of subjecting the Crown to the general law of vicarious liability in respect of torts and delicts, rather than freezing or redefining that law in purely statutory terms. The provision assimilates the Crown’s position to that of a private person in the same situation. The Court therefore rejected the idea that the statute automatically satisfies stage 1 of the vicarious liability test whenever the wrongdoer is a “servant of the Crown”, or that developments in the common law (such as the “akin to employment” doctrine) are irrelevant.

Applying the “always speaking” principle of statutory interpretation, and the modern purposive approach, the Court considered that, so far as the words permit, legislation such as section 2(1)(a) should be construed to track subsequent developments in the common law of vicarious liability. There was nothing in the language of the provision to suggest an intention to exclude such development. Thus, the modern two‑stage test from the BXB decision—requiring a relationship of employment or quasi‑employment at stage 1—forms part of the analysis under section 2(1)(a).

The Court also addressed two ancillary aspects of section 2:

• The proviso to section 2(1)(a): Relying on contemporary commentary, the Court noted that the proviso appears to have been inserted largely out of caution, for example to ensure that where a defence such as act of state prevents a cause of action against the servant, the Crown also benefits. In modern law, it is hard to envisage a tort or delict having been committed by a servant or agent without a corresponding cause of action against that person or their estate.
• Section 2(5) (judicial functions): This subsection excludes Crown liability for anything done or omitted while a person is discharging, or purporting to discharge, responsibilities of a judicial nature, or responsibilities connected with the execution of judicial process. The Court accepted that the alleged conduct in this case fell outside that exclusion but emphasised that this does not imply that vicarious liability would otherwise automatically exist. Rather, section 2(5) reflects the principle that, since the Crown cannot interfere in the discharge of judicial functions, it cannot be vicariously liable for acts done in the performance of those functions. The provision also applies to individuals who are not judicial office‑holders but may exercise judicial-type responsibilities. The Court considered it a non sequitur to infer, as the Outer House had done, that the very existence of section 2(5) proves judicial office‑holders are “servants of the Crown” for stage 1 purposes.

2. Meaning of “the Crown” and relevant capacity

The Court then examined what “the Crown” means in the context of the 1947 Act. It reviewed historical authorities and statutory provisions indicating that:

• The Crown is best understood, for these purposes, as the Sovereign in an official (public) capacity, rather than in a personal or private capacity. This is supported by historic case law treating the Crown as a corporation sole, and by earlier interpretation legislation which equated references to “the Crown” with references to the Sovereign for the time being.
• The Crown can act in multiple capacities—for example, in right of His Majesty’s Government in the United Kingdom, in right of the Scottish Administration, in right of overseas territories, and in the Sovereign’s private capacity. Modern statutes, including the Scotland Act 1998 and provisions of the 1947 Act itself (such as section 40), explicitly recognise such distinctions.

Crucially, section 40(2)(b) of the 1947 Act restricts the liabilities for which proceedings may be brought under the Act to those arising “in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration”. Some Crown functions are therefore outside the Act’s scope for territorial reasons (e.g. Crown acts in right of overseas territories), and others because they are not of an executive character (e.g. legislative functions, or judicial functions understood as constitutionally distinct from the executive).

The Court held that, in line with this structure, the vicarious liability of the Crown under section 2(1)(a) is a liability arising “in respect of” the UK Government or the Scottish Administration. In Scotland, the Scottish Administration includes the Scottish Government, other specified office‑holders, and their staff. In practice, as regards the relationship with judicial office‑holders—appointments, removals and remuneration—the Sovereign acts through the Scottish Government, which is thus the relevant emanation of the Crown in this case.

The Court agreed with the Outer House (and the unchallenged conclusion below) that the appropriate law officer to be sued was therefore the Lord Advocate, because the alleged liability arises in respect of the Scottish Administration, and more specifically in respect of the Scottish Government.

3. Stage 1 of vicarious liability: Relationship between sheriff and Scottish Government

Having determined that the modern law of vicarious liability applies and that the relevant capacity of the Crown is in right of the Scottish Administration, the Court turned to stage 1 of the vicarious liability test: whether the relationship between the sheriff and the Scottish Government is “akin to employment”. It was common ground that the sheriff is not an employee in the ordinary contractual sense and does not have a contract of employment.

The Court identified two “compelling and linked” reasons why the relationship is not akin to employment:

1. Lack of governmental control over judicial performance: The Scottish Government has no control over how sheriffs perform their judicial functions. Matters such as listing (where and when a sheriff sits and which cases they hear) are controlled by the judiciary, not by ministers. While there is a statutory mechanism for removal from office on grounds of unfitness—requiring a tribunal report and an order by the First Minister subject to parliamentary procedure—that is an extreme and exceptional safeguard, not a manifestation of ordinary employer‑type control over day‑to‑day performance.
2. Constitutional principle of judicial independence: It is a fundamental constitutional principle, grounded in the separation of powers and reflected in the Constitutional Reform Act 2005 and the Judiciary and Courts (Scotland) Act 2008, that the judiciary is independent of government. Those with responsibility for the judiciary or administration of justice, including the First Minister, the Lord Advocate, Scottish Ministers and members of the Scottish Parliament, must uphold that independence. A sheriff must be free to decide cases without interference or fear of interference by the Government, including in cases where the Government or its officers are parties. Consequently, the Government cannot instruct a sheriff what to do or how to do it.

The Court concluded that these features are fundamentally inconsistent with an employment‑like relationship. The fact that sheriffs’ remuneration, allowances and pensions are ultimately funded from public funds controlled by the Scottish Government does not outweigh the absence of control and the overriding requirement of independence.

The Court drew support from the decision in Gilham v Ministry of Justice, where a judge was held not to be a “worker” or in Crown employment for whistle‑blowing protection purposes. That case highlighted the fragmentation of responsibilities for the judiciary and the constitutional separation between the judiciary and the executive. Although the statutory “worker” test is distinct from the vicarious liability enquiry, the Supreme Court considered that the constitutional context identified in Gilham is equally relevant here and reinforces the conclusion that judges are not in an employment or quasi‑employment relationship with the executive.

Accordingly, the Court agreed with the Inner House that the relationship between a sheriff and the Scottish Government is not akin to employment, and that stage 1 of the vicarious liability test is not satisfied. It followed that the Crown cannot be vicariously liable for the sheriff’s alleged delicts under section 2(1)(a) of the 1947 Act.

Holding and Implications

Holding: The Supreme Court held that section 2(1)(a) of the Crown Proceedings Act 1947 incorporates the general common law of vicarious liability, including the requirement that, at stage 1, there be a relationship of employment or akin to employment between the defender and the wrongdoer. On the correct interpretation of that provision, and considering the constitutional context of judicial independence and the lack of executive control over judicial performance, the relationship between a sheriff and the Scottish Government is not akin to employment. As a result, the Crown cannot be vicariously liable for the sheriff’s alleged assaults and harassment. The pursuer’s claim for vicarious liability is therefore DISMISSED as bound to fail at stage 1 of the vicarious liability enquiry.

Implications for the parties: The effect of the decision is that the pursuer cannot proceed against the Crown (sued via the Lord Advocate) on a vicarious liability basis for the alleged delicts of the sheriff. The appeal is dismissed, and the sheriff’s personal liability for the alleged assaults and harassment, which remains disputed on the facts, is unaffected by this ruling.

Broader implications: The opinion clarifies that, under the Crown Proceedings Act 1947, the Crown’s vicarious liability in Scotland is anchored to the modern common law doctrine and that judicial office‑holders in Scotland are not in a relationship akin to employment with the executive branch. The judgment emphasises the centrality of judicial independence and the absence of governmental control as determinative factors. The opinion focuses on resolving the issues in this appeal; it does not purport to establish any wider general rule beyond the application of existing constitutional and vicarious liability principles to the facts and statutory framework considered.