From: Lionel Smith <lionel.smith@law.ox.ac.uk>
Date: Friday, 12 December 2025 at 10:05 AM
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

 

 

It is an interesting decision.

 

Three observations:

 

1. 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).

 

2. 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.

 

3. 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?  

 

 

 

 

 

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.