From: Jason W
Neyers <jneyers@uwo.ca>
Sent: Thursday
11 December 2025 15:36
To: obligations
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)
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