X v Lord Advocate

Section 2(1)(a) of the Crown Proceedings Act 1947 imports the whole common law of vicarious liability, including its development beyond employment to relationships akin to employment. The Crown means the Sovereign acting in an official capacity, but liability under the Act must arise in respect of the United Kingdom Government or the Scottish Administration.

A Scottish sheriff’s relationship with the Scottish Government is not akin to employment. The Government neither controls the performance of judicial functions nor may interfere with them, because judicial independence and the separation of powers require the judiciary to remain independent of the executive. The Crown therefore cannot be vicariously liable for a sheriff’s delicts where the first stage of the common-law test is unsatisfied.

The appellant, a legal practitioner, alleged that a sheriff had assaulted and harassed her. For the preliminary issue, the allegations and the sheriff’s delictual liability were assumed, but remained factually undetermined. The appellant sought to hold the Crown vicariously liable, with the Lord Advocate representing the Scottish Ministers.

The Outer House held that the claim was relevant in relation to two incidents, although the assault claims were time-barred: X v Y [2023] CSOH 17. The Inner House allowed the Lord Advocate’s reclaiming motion and held that the relationship between a sheriff and the Scottish Government was not akin to employment: X v Brown [2024] CSIH 6.

The central questions were whether section 2(1)(a) of the Crown Proceedings Act 1947 imported the modern common law of vicarious liability and, if so, whether the relationship between the Scottish Government and a sheriff satisfied the first stage of that doctrine.

1. Appeal dismissed. Section 2(1)(a) of the Crown Proceedings Act 1947 is not a self-contained statutory code confined to wrongs committed by persons classified as Crown servants. It imposes on the Crown the common law of vicarious liability which would apply to a private person of full age and capacity. That includes the modern development under which the first stage may be satisfied by a relationship akin to employment. The always-speaking principle supported an interpretation capable of accommodating developments in the common law: paras 51–54.

2. In this context, “the Crown” means the Sovereign acting in an official capacity. Section 40(2)(b), however, limits liability under the 1947 Act to liability arising in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration. The relevant relationship was therefore that between the Scottish Government, as part of the Scottish Administration, and the sheriff: paras 32–49.

3. The modern common-law enquiry has two stages. First, the relationship between the defender and wrongdoer must be employment or akin to employment. Secondly, the wrongful conduct must be so closely connected with authorised acts that it can fairly and properly be regarded as occurring in the course of employment or quasi-employment. Both stages must be satisfied: para 21.

4. The relationship between a sheriff and the Scottish Government is not akin to employment. The Scottish Government has no control over the performance of a sheriff’s judicial functions. More fundamentally, judicial independence and the separation of powers require a sheriff to decide cases free from governmental interference or fear of interference, including cases involving the Government itself. Governmental responsibility for remuneration, appointment and the statutory removal process did not outweigh those considerations: paras 57–63.

5. Section 2(5) excludes Crown liability for conduct occurring while a person discharges or purports to discharge judicial responsibilities or responsibilities connected with executing judicial process. It does not imply that a judicial office-holder must otherwise be a Crown servant or that vicarious liability would otherwise exist. Conduct outside the exemption could attract liability only if both common-law stages were independently satisfied: para 56.

6. The Lord Advocate was the proper law officer because the alleged Crown liability arose in respect of the Scottish Administration, specifically the Scottish Government. Sections 1 and 4A of the Crown Suits (Scotland) Act 1857 therefore applied: para 50.

1. United Kingdom Supreme Court: Dismissed the appeal and affirmed the Inner House’s conclusion that the Crown could not be vicariously liable because the first stage of the common-law test was not satisfied: [2025] UKSC 44.

2. Inner House of the Court of Session: Allowed the Lord Advocate’s reclaiming motion and held that a sheriff’s relationship with the Scottish Government was not akin to employment. The appellant’s time-bar appeal consequently fell away: X v Brown [2024] CSIH 6; 2024 SC 309.

3. Outer House of the Court of Session: Held that the Crown-liability claim was relevant in relation to the first two alleged incidents, but that the assault claims were time-barred. It also held that the Lord Advocate was the appropriate law officer: X v Y [2023] CSOH 17; 2023 SC 235.