From: Matthew
Hoyle <MHoyle@oeclaw.co.uk>
Sent: Friday 12
December 2025 09:28
To: Robert
Stevens; Peter Watts; Lionel Smith; ODG
Subject: Re: X v
Lord Advocate [2025] UKSC 44
Paragraph 23 explains what Rob and Jason have noted seems a
bizarre inability to explain part of the statute:
That paragraph is absolutely mind boggling to me. On what basis is
it permissible to just assume you can interpret the meaning of Act passed in
1947 by reference to the law of vicarious liability as it now stands? Compare
(although I disagree with the conclusion in print) Primeo Fund (in Official
Liquidation) v Bank of Bermuda (Cayman) Ltd and another [2023] UKPC 40. Lord
Leggatt there engaged in a very detailed review of the law as it stood in 1945
to determine the scope of the LR (Contributory Negligence) Act.
The proof of why this approach is wrong is Rob's analysis - you
simply start upsetting the statutory scheme and potentially disrupt key
statutory protections because you are using concepts in a way not consistent
with the way Parliament was using them and understood them.
Matthew
Hoyle
Barrister
One
Essex Court
This
message is confidential and may be privileged. If you believe you have received
it in error please delete this email and immediately inform the sender.
Regulated
by the Bar Standards Board.
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: Friday, December 12, 2025 9:09:33 AM
To: Peter Watts <pg.watts@auckland.ac.nz>;
Lionel Smith <lionel.smith@law.ox.ac.uk>;
ODG <obligations@uwo.ca>
Subject: RE: X v Lord Advocate [2025] UKSC 44
Plainly if the principal
procured the tort the principal will be liable, but that is true of
anyone who procures a tort (i.e. irrespective of an agency relationship).
I hesitate to disagree with Peter about
agency law, but I do not agree with this short statement. Procuring requires
inciting, inducing or persuading . By contrast if P authorises A to do an
action on his behalf, and A does that action on P s behalf, if that action is a
tort against X, P has committed a tort against X jointly with A. There is no
need to satisfy the narrower test of procurement. Although rare, you can also
have situations where P ratifies the unauthorised actions A took on P s behalf,
which will also render P a joint tortfeasor. The ratification cases are more
obviously not ones of procurement , time s arrow only going one way.
As Jason says, on vicarious liability
more generally, I remain unrepentantly of the view that it was explained, and
can still only be explained, on the basis of the Master s Tort theory, and
that the basket of policy concerns that the UKSC (and others) invoke to try and
explain it as a species of strict liability are (politely) unconvincing.
Under the Master s Tort explanation, the
employee s action is attributed to the employer, so that if that action
constitutes a tort, each is committing the same tort jointly (ie vicarious
liability is a species of agency law). Under the servant s tort theory, the
master isn t a tortfeasor at all, instead we re holding them strictly liable
for the torts of someone else for an array of policy reasons (loss spreading,
enterprise risk, deterrence etc etc).
The master s tort theory, unlike the
servant s tort theory, explains the central features of the doctrine. For
example
- Why it is
vicarious. None of the policy explanations, either singly or in
combination with any of the others, explains why liability is dependent
upon a tort committed by someone else
- Why there is no
causal requirement. The employer s liability is not dependent upon any
causal connection between the employment and the tort. Indeed, liability
cannot be avoided by showing beyond peradventure that the employee would
have committed the same tort regardless of having been employed. Exactly
the same is true of express authorisation. If I authorise you to punch X,
and you do so on my behalf, I am a tortfeasor even if you would have
punched X yourself anyway.
Once we accept the Master s Tort theory must be the
truth (and there are several other rules we all accept, such as how
contributory fault works, that I consider to be proofs) the old Salmond test of
scope of employment ( an unauthorised mode of an authorised act ) made perfect
sense. This is an extension of, and part of the same rule as, express
authorisation.
Partnership works in the same way, and the rules there
also can t be explained using the basket of policy concerns that are invoked to
explain vicarious liability. Partnership isn t a species of employment,
nor is it akin to employment. An employee is someone the employer has control
over. One partner has no control over another partner.
But, partners agree to act together. The acts of one
partner within the scope of the partnership agreement are attributed to all
other partners. If the acts of one is a tort, each jointly commits that tort.
Agreement, like authorisation, is a way in which we attribute one person s
actions to another. It is loose to say that this is an intimate relationship. I
am in an intimate relationship with my children but, thank God, that doesn t
mean under English law that their actions are attributed to me.
And this account also explains the Crown Proceedings
Act, which the UKSC cannot do. The Act says
Subject
to the provisions of this Act, 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:
(a)in respect of torts committed by
its servants or agents;
.
Provided that no proceedings shall lie against
the Crown by virtue of paragraph (a) of this subsection in respect of any act
or omission of a servant or agent of the Crown unless the act or omission would
apart from the provisions of this Act have given rise to a cause of action in
tort against that servant or agent or his estate.
On the servant s tort theory, that proviso makes no sense (as the UKSC
admits). Under the servant s tort theory, the employer can only be liable if
the employee is liable, so there is no need for any proviso. But as Glanville
Williams explained, sometimes the employee may not be liable because they have
an immunity that is personal to them but the employer can still be liable. An
example is the immunity a husband had for torts to his wife. If the husband was
acting in the course of his employment in injuring his wife, his employer was
still liable because the *acts* of the husband are attributable to his
employer: Broom v Morgan [1953] 1 QB 597. Under the modern view that is of
course inexplicable, but much more central features of the doctrine than that
are also inexplicable.
This became very important when Crown immunity was abolished in 1947,
because many agents of the Crown (eg judges) themselves have personal
immunities from committing various torts (eg defamation when giving a court
judgment). If the proviso did not exist, these immunities could be bypassed by
suing the Crown.
Notice that the entire section makes no sense on the servant s tort
theory. On that theory the liability of the employer/Crown isn t for a tort at
all. Compare the opening words of the section ( in tort ).
Is the case wrong under the law as it was understood in 1947 (which made
perfect sense and has been mucked up since)? Indeed, how should it have been
decided today?
First, judges aren t just acting for themselves, they re acting for the
State. If they commit a tort in the course of acting for the State, the State
should be liable. It was that immunity for the Crown that the 1947 Act was
intended to remove.
But, second, for those acts that judges carry out on behalf of the State
(eg judges giving judgments) they themselves always(?) have an immunity. So,
you can t sue the Crown either.
Here the alleged assault that was carried out was not an act done as a
judge. It wasn t an unauthorised mode of an authorised act so you can t sue
the Crown for that either.
But, two of the three alleged assaults occurred in the court building.
Under the law as it was in 1947 (in England I don t know about Scotland)
occupiers who invited people on to premises assumed a duty that care would be
taken of them. (ie there was a non-delegable duty to invitees). So, the Crown
should have been liable in 1947 after the passing of the Crown Proceedings Act
like any other occupier who has invited another on to the premises. It
shouldn t matter a damn that the assault was deliberate, that is a fortiori
from their having been carelessly injured (cf the HCA s appalling decision in
NSW v Lepore, which is currently being sought to be reversed).
But, alas, in 1957 the Occupiers Liability Act was passed, and that
legislation foolishly abolished the distinction between invitees (to whom
responsibility was assumed) and licensees (to whom responsibility was not
assumed and who had only their vanilla Donoghue v Stevenson rights). I
assume the Occupiers Liability Act (Scotland) Act 1960 leads to the same
position.
So, after 1957 that claim doesn t work. It should. The Crown ought to be
liable for the assaults of people to whom it has assumed responsibility by
inviting them into court rooms.
RS
.
From: Peter Watts <pg.watts@auckland.ac.nz>
Sent: 12 December 2025 03:38
To: Lionel Smith <lionel.smith@law.ox.ac.uk>;
ODG <obligations@uwo.ca>
Subject: Re: X v Lord Advocate [2025] UKSC 44
I
have no contribution to make at this point on the possible vicarious liability
of the Crown for acts of judges and other state officials. But in response to
Lionel s assumption that vicarious liability applies to the principals of
agents, I think this is wrong. Agency is not a status for the purpose of the
operation of vicarious liability (the car cases are anomalous and
mis-reasoned). An agent is either an employee or an independent
contractor (putting aside gratuitous actors). With most torts (but cf negligent
misstatement) a principal is vicariously liable only for the acts of employees
or those akin thereto. The principal is not so liable for the acts of agents
who are independent contractors. Plainly if the principal procured the
tort the principal will be liable, but that is true of anyone who procures a
tort (i.e. irrespective of an agency relationship).
As
for the vicarious liability of partners, I think that this turns not on agency
but on the fact that partners, as co-owners of the business, are in an even
more intimate relationship than employment. It might be thought odd to be
vicariously liable for the acts of employees but not those of co-managers of
the business. Peter.
From: Lionel Smith <lionel.smith@law.ox.ac.uk>
Date: Friday, 12 December 2025 at 15:07
To: ODG <obligations@uwo.ca>
Subject: Re: X v Lord Advocate [2025] UKSC 44
Thank you Haim, Jason, and Neil.
I am no tort lawyer, nor a legal historian, but this might be
interesting for those who are. I was recently looking into C19 decisions on
public trusts whose trustees were performing functions of government but which
were not charitable trusts inasmuch as the property held in trust was not
given, but rather raised under statutory authority. The majority view, as I
understand it, following the resolution of some earlier debates by the decision
in Attorney-General v Dublin (City) (1827) I Bligh NS 312, 4 ER 888
(HL), was that these were public non-charitable trusts (although by the turn of
the C20 some judges were already starting to use the expressions public trust
and charitable trust as synonymous, as they had at the start of the C19 and
perhaps before). (For those who find all this surprising, as I did, see: J
Barratt, Public Trusts (2006) 69 MLR 514; C Mitchell, Public Trusts,
1750-1850 in D Foster and C Mitchell (eds), Essays on the History of Equity (Hart
2026) forthcoming but available at https://ssrn.com/abstract=4495395;
and, for a recent example of a public non-charitable trust, R (on the
application of Day) v Shropshire Council [2023] UKSC 8.)
In relation to these public trusts performing functions of government,
some cases held that the trustees were immune from vicarious liability, but
this seems to have been rejected, with contrary cases overruled, in Mersey
Docks Trustees v Gibbs (1866) LR 1 HL 93. When I read that case, I
assumed that the earlier idea that there should be no tort liability for such
trustees (who were always acting under statutory authority) was a kind of
read-over from Crown immunity. But if that was right, the immunity described by
Jason in his point (3) should not have survived the Crown liability
legislation. Indeed, with the greatest respect for a great judge and not having
read the decision, I find the passage quoted by Jason from Dixon J hard to
follow. In every case, there will surely be someone between the tortfeasor
and the Crown who was exercising a discretion and responsibility which rests
upon him in virtue of his office or of some designation under the law , even if
it is a Minister of the Crown. Is the doctrine that Jason describes only
applicable when the office-holder him- or herself commits the tort (and if
instead it is their subordinate, the Crown can be liable)? That would be a bit
strange.
As for Neil s point, surely an agency relationship attracts vicarious
liability independently of an employment relationship, and partners are mutual
agents in relation to the business of the partnership?
Cheers,
Lionel
From:
Jason Neyers <jneyers@uwo.ca>
Date: Thursday, December 11, 2025 at 09:36
To: ODG <obligations@uwo.ca>
Subject: ODG: X v Lord Advocate [2025] UKSC 44
It is an
interesting decision.
Three
observations:
- I have some sympathy for the plaintiff s argument that servant of
the Crown might have a different and wider meaning than the modern law of
vicarious liability stage 1 (especially in light of the independent
discretion doctrine that had developed in response to this liability, more
on this in 3).
- Discussion of the Proviso to Section 2(1)(a) at [55]: The
court can t seem to find any reason for the proviso, but it seems fairly
obvious to me that it was inserted because the juridical foundation of
vicarious liability (was it the attribution of torts or acts, ie servant s
tort vs master s tort theory?) was still at the time (and might still, see
Stevens, be) up for grabs.
- I found it interesting that there was no discussion of the
(very) traditional independent discretion doctrine in relation to
vicarious liability and the Crown: As Dixon J. noted in Field v.
Nott (1939), 62 C.L.R. 660 (H.C.A.) at 675:
When a public officer, although a servant of
the Crown, is executing an independent duty which the law casts on him, the
Crown is not liable for the wrongful acts he may commit in the course of his
execution. As the law charges him with a discretion and responsibility which
rests upon him in virtue of his office or of some designation under the law, he
alone is liable for any breach of duty.
The rule had been applied in many cases, Little
v. The Commonwealth (1947), 75 C.L.R. 94 (H.C.A.); Fowles v. Eastern and
Australian Steamship Co., [1916] 2 A.C. 556 (P.C.); Esso Petroleum Co.
v. Hall Russell & Co., [1989] 1 A.C. 643 (H.L.), see Kneebone, The
Independent Discretionary Function Principle and Public Officers (1990) 16
Monash Univ. L. Rev. 185. Perhaps there is some UK-specific reason (such
as a statutory provision) why it no longer applies, or perhaps because the
court concluded that Judges are never Crown servants it was thought totally
irrelevant?
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
From: Abraham, Haim <haim.abraham@ucl.ac.uk>
Sent: December 11, 2025 6:33 AM
To: obligations <obligations@uwo.ca>
Subject: X v Lord Advocate [2025] UKSC 44
Dear all,
I hope this email finds you well.
The UK Supreme Court handed down a decision in X v Lord Advocate [2025]
UKSC 44, in which it provides a detailed analysis of the vicarious liability of
the Crown for alleged battery and (sexual) harassment committed by a Scottish
judge against a solicitor.
The key paragraphs of Lord Reed and Lord Burrow s judgment are, in my
view, 41-63, and I include them below.
Both the interpretation of the Crown for the purposes of the Crown
Proceeding Act, and approach Stage 1 of the vicarious liability analysis, are
narrow.
The five incidents test hasn t been clearly applied fully, and instead
the focus was on control and separation of powers, resulting in a decision that
Stage 1 couldn t be established in cases such as this.
In my view, other factors in this case could lead to the opposite
conclusion, particularly the source of judicial powers, the provision of means
to exercise these powers, and the risks created on and off premises given the
nature of the dynamics.
Some of the key paragraphs:
41. That description of the Crown, and the characterisation of it as a
corporation sole, indicate that in some contexts, at least, the Crown simply
means the Sovereign in his official capacity
42. ... The effect of that provision was that, unless a contrary
intention appeared (and there is none), references to the Crown in the 1947 Act
were to be construed as referring to the Sovereign for the time being
43. However, if it is correct that the Crown is referring to the
Sovereign acting in his official rather than personal capacity, one still has
to recognise that the Sovereign s official capacities are wide-ranging. It is
at this point in the analysis that the parameters of the 1947 Act, as laid down
in section 40(2)(b), are crucial. Section 40(2)(b) lays down that the liability
of the Crown must arise in respect of His Majesty s Government in the United
Kingdom or the Scottish Administration. This is of critical importance because
the Crown possesses functions and powers which do not concern His Majesty s
Government in the United Kingdom or the Scottish Administration.
44. Some powers and functions of the Crown fall outside those categories
for territorial reasons. So, for example, the Crown could not be sued under the
1947 Act in respect of a nuisance allegedly arising out of the use of a
military base in West Germany: Trawnik v Lennox [1985] 1 WLR 532. Other
illustrations include R v Secretary of State for the Home Department, Ex p
Bhurosah [1968] 1 QB 266, concerned with the Crown in right of Mauritius,
Franklin v Attorney General [1974] QB 185 and Mutasa v Attorney General [1980]
QB 114, concerned with Southern Rhodesia, R v Secretary of State for Foreign
and Commonwealth Affairs, Ex p Indian Association of Alberta [1982] QB 892,
where the relevant liabilities were held to be in respect of the Crown in right
of Canada, and R (Quark Fishing Ltd) v Secretary of State for Foreign and
Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529, where it was held that
the Secretary of State had acted on behalf of the Queen in right of South
Georgia and the South Sandwich Islands. This territorial limitation was even
more important in 1947, when the Sovereign was the head of an extensive empire
owing a single allegiance.
45. Other powers and functions of the Crown fall outside those
categories because, although they relate to the United Kingdom, they are not of
an executive character (and hence do not arise in respect of His Majesty s
Government in the United Kingdom or the Scottish Administration ). An example
is the Crown s function as a legislator: every Act of Parliament states that it
was enacted by the King s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and temporal, and Commons, in this present
Parliament assembled . Constitutionally, the Crown s commission is also the
source of all judicial authority, although the monarch cannot personally
execute any judicial office: Prohibitions del Roy (1607) 12 Co Rep 63; 77 ER
1342. Section 40(1) and section 40(2)(b) reflect the constitutional role of the
judiciary in relation to the monarch in his or her private capacity and as the
head of the executive.
48. Accordingly, in essential agreement with the views of the lower
courts on this issue although it will be clear that we have regarded it as
important to explore this issue in much greater depth than was possible in the
lower courts the vicarious liability imposed on the Crown, that is the
Sovereign in his official capacity, by section 2(1)(a) of the 1947 Act is a
liability arising in respect of the Government of the United Kingdom or the
Scottish Administration. As we have explained at para 18, the Scottish
Administration includes the Scottish Government but also includes other
office-holders. Vicarious liability can therefore arise under the 1947 Act in
respect of the acts or omissions of the Scottish Ministers (who form the
Scottish Government), junior ministers (who do not form part of the Scottish
Government, but are part of the Scottish Administration), and other
office-holders, together with the staff of all of the foregoing.
49. In the present proceedings, the focus must be on the Scottish
Administration, and more specifically on the Scottish Government, as a
constituent part of the Scottish Administration. That is because it is the
Scottish Government that has responsibility for the payment of the salaries of
judicial office-holders and, through the First Minister, has responsibility for
the appointment and removal of judicial office-holders. In other words, as
regards the relationship with judicial office-holders, the Sovereign in his
official capacity acts through the Scottish Government. We therefore consider
that it is the relationship between the Scottish Government and judicial
office-holders that needs to be focussed on in considering the vicarious
liability of the Crown in this case.
51. Returning to the primary submission advanced on behalf of the
pursuer, while not necessarily disagreeing with what Mr McBrearty has argued on
the meaning of Crown servant , we fundamentally disagree with his suggested
interpretation of section 2(1)(a) (see para 30 above). On the correct
interpretation, section 2(1)(a) is not self-contained. Rather the common law,
and hence the modern development in the common law, of vicarious liability is
relevant and important.
53. Focusing on section 2(1)(a), therefore, the words effect the purpose
of imposing on the Crown the law on vicarious liability in delict or tort. The
purpose is not, as the pursuer submits, to impose on the Crown only a limited
part of that law and nor is it to deem aspects of that law (ie the first stage
of vicarious liability) as being automatically satisfied where the wrongdoer is
a Crown servant.
54. It follows from this correct interpretation that all the law on
vicarious liability, that would apply if the Crown were a private person,
applies to the Crown; and that includes the development of the common law at
stage 1 to embrace a relationship that is akin to employment. That one should
include that development is supported by the principle of statutory
interpretation that a statute is always speaking (see para 23 above). In so
far as the words permit it, an interpretation that embraces developments in the
common law is in general to be preferred to one that excludes such a
development by treating the interpretation of the statute as frozen in time.
58. That alternative submission also fails. There are two compelling and
linked reasons why the relationship between a sheriff and the Scottish
Government is not akin to employment. 59. First, there is no control by the
Scottish Government over the performance by sheriffs of their judicial
functions. The judiciary itself determines listing matters (ie where and when a
sheriff sits and which cases he or she hears). At the extreme, there is a
statutory procedure, laid down in sections 21-25 of the Courts Reform
(Scotland) Act 2014, for the removal from office of a sheriff by the order of
the First Minister as being unfit for office. But that requires a report from a
specially convened tribunal recommending removal from office, and the order is
subject to the negative procedure before the Scottish Parliament.
60. Secondly, and most crucially, it is a constitutional principle,
resting on the separation of powers, that the judiciary is independent of
government. A sheriff must be free to decide a case without any interference or
the fear of interference by the Scottish Government ... Accordingly, the
Scottish Government can tell a sheriff neither what to do nor how to do it.
62 Although the question whether a person is a worker within the
meaning of the Employment Rights Act 1996 is different from the question
whether the stage 1 test of vicarious liability is met, as Lady Hale made clear
in Various Claimants v Barclays Bank plc [2020] UKSC 13; [2020] AC 973, para
29, the constitutional context to which Lady Hale referred in Gilham v Ministry
of Justice is important in both contexts.
Best,
Haim
Dr Haim Abraham
Assistant Professor
UCL
Faculty of Laws, University College London
E:
haim.abraham@ucl.ac.uk W: https://www.ucl.ac.uk/laws/people/haim-abraham Twitter:
@HaimAbraham
UCL
Faculty of Laws | Bentham House| 4-8 Endsleigh Gardens | London | WC1H 0EG
New Book: Tort
Liability in Warfare: States' Wrongs and Civilians' Rights (Oxford University Press,
2024)
|
|
|
|
|
You're receiving this message because you're a member of the obligations group from The University of Western Ontario. To take part in this conversation, reply all to this message. |
|
|
|
View group files | Leave group | Learn more about Microsoft 365 Groups |
|
|
Disclaimer
The
information contained in this communication from the sender is confidential. It
is intended solely for use by the recipient and others authorized to receive
it. If you are not the recipient, you are hereby notified that any disclosure,
copying, distribution or taking action in relation of the contents of this
information is strictly prohibited and may be unlawful.
This email has been scanned for viruses and malware, and may have been
automatically archived by Mimecast, a leader in email security and cyber
resilience. Mimecast integrates email defenses with brand protection, security
awareness training, web security, compliance and other essential capabilities.
Mimecast helps protect large and small organizations from malicious activity,
human error and technology failure; and to lead the movement toward building a
more resilient world. To find out more, visit our website.