X v Y

Section 2(1) of the Crown Proceedings Act 1947 (10 & 11 Geo 6 cap 44) (‘the 1947 Act’) provides, “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.” “Agent”, when used in relation to the Crown, includes an independent contractor employed by the Crown; and “Officer”, in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the foregoing provision) includes a minister of the Crown and a member of the Scottish Executive (sec 38(2)). Section 2(5) provides, “No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.” Section 40(2) provides, “Except as therein otherwise expressly provided, nothing in this Act shall:– … (b) authorise proceedings to be taken against the Crown under or in accordance with this Act in respect of any alleged liability of the Crown arising otherwise than in respect of His Majesty's Government in the United Kingdom or the Scottish Administration”.

Section 1 of the Crown Suits (Scotland) Act 1857 (20 & 21 Vict cap 44) (‘the 1857 Act’) provides, “Every action, suit or proceeding to be instituted in Scotland on the behalf of or against His Majesty, or in the interest of the Crown (including the Scottish Administration), or on the behalf of or against any public department, may be lawfully raised in the name and at the instance of or directed against the appropriate Law Officer as acting under this Act.” Section 4A provides, “In this Act ‘the appropriate Law Officer’ means– (a) the Lord Advocate, where the action, suit or proceeding is on behalf of or against any part of the Scottish Administration, and (b) the Advocate General for Scotland, in any other case.”

A legal practitioner raised an action for damages based upon a series of assaults alleged to have been committed on 18 May, 5 July, 19 July and 24 August 2018 by the first defender, who was a sheriff. The alleged assaults were claimed to be individual delicts at common law and, when taken together, to amount to harassment under the Protection from Harassment Act 1997 (cap 40). The first and second alleged incidents were said by the pursuer to have taken place in the reception area of a court building and in the sheriff's chambers respectively; the third incident to have taken place on a train; and the fourth to have involved the first defender making a video call to the pursuer's mobile phone.

The pursuer served proceedings on the Lord Advocate on 16 July 2021, and on the Advocate General for Scotland on 14 March 2022.

On the issue of whether the Crown had vicarious liability for the conduct alleged against the sheriff (‘issue 1’), the Lord Advocate argued that there was insufficient relationship between the Scottish Ministers and a sheriff (‘the first stage’), and insufficient closeness of connection between that relationship and the wrongdoing (‘the second stage’). In any event, such liability would be inimical to judicial independence. The Advocate General adopted the Lord Advocate's position on the second stage, and reserved the right, should the case against him go to proof, to make submissions on the first stage and whether the sheriff is a Crown servant or agent, and if so, whether the alleged acts fell within the scope of discharging or purporting to discharge any responsibilities of a judicial nature vested in him.

On the issue of whether the pursuer's claim for vicarious liability was time-barred (‘issue 2’), the Lord Advocate argued that the first two alleged incidents as individual delicts were outwith the triennium but limitation in respect of alleged harassment would require to be determined after proof. The Advocate General argued that all of the alleged misconduct took place outwith the triennium and service on the Lord Advocate did not amount to a reason why an extension of time would be equitable under sec 19A of the Prescription and Limitation Act 1973 (cap 52).

On the issue of who would be the appropriate Law Officer to represent the Crown (‘issue 3’), the Lord Advocate argued that a sheriff was not part of the Scottish Administration and so the correct defender would be the Advocate General under sec 4A of the 1857 Act. The Advocate General argued that the Lord Advocate would be the appropriate Law Officer under the same provision. Moreover, the alleged liability did not arise in respect of the UK government in terms of secs 2 and 40(2)(b) of the 1947 Act.

Held that: (1) sec 2(1) of the 1947 Act plainly applied vicarious liability for tortious acts of Crown servants, and there would be no need for sec 2(5), excluding vicarious liability where responsibilities of a judicial nature were being discharged, if a judicial office-holder was not a Crown servant, and on that basis alone the pursuer was not bound to fail in her contention that a member of the judiciary was a Crown servant for that purpose (paras 25, 29); (2) sec 2(1) of the 1947 Act in effect provided that the Crown would have vicarious liability but only in the same way as others, and so the test of the relationship being akin to that between an employer and employee still required to be met; the key features of Crown and government involvement in the position and payment of sheriffs met this part of the test, and the independence of the judiciary did not negate that relationship (paras 27, 28); (3) whether there was a close connection between that relationship and the alleged incidents was fact specific; there was in the post of sheriff conferral of a degree of authority and control over practitioners such as the pursuer, and to that extent the relationship with the Crown went beyond merely providing the opportunity for the wrongful conduct, and allowed such an office-holder, in certain circumstances, to abuse the special position in which the Crown had placed him (paras 38, 39); (4) whether or not there was a sufficiently close connection between the alleged wrongful actions and the first defender's position as sheriff would require to be considered in light of the full factual evidence at proof, but in relation to the last two alleged incidents, there were no averments which could allow the test of a sufficiently close connection to be met, as the sheriff was not in some way entrusted by the Crown to behave in a particular manner on the train or in a video call and these events did not fall within even a broad view of his functions or field of activities and did not show abuse of the special position in which the Crown had placed him and were not fairly and properly to be regarded as done while acting in the ordinary course of his duties, and no relevant case was made out in delict or on the statutory ground of harassment in respect of those last two alleged incidents (para 41); (5) the Scottish Ministers (or Scottish Administration) were part of the Crown, and service on the Lord Advocate would suffice whether as representing the Crown or the Scottish Ministers, and it would be overly harsh to take the case against the Advocate General as time-barred when there had, if mistakenly, already been service on the Lord Advocate as representing the Scottish Ministers (paras 49, 52); (6) the claims in delict based on the first two alleged acts were time-barred, and there was no good reason for viewing it as equitable that they should be allowed to proceed (paras 51, 53); (7) whether a claim in relation to a course of conduct that was said to amount to harassment was time-barred in respect of vicarious liability because the only two events for which there could be vicarious liability occurred more than three years ago remained to be determined at proof (paras 50, 53); (8) the Scottish Administration and the UK government were manifestations of the Crown, or means by which the Crown operated, and were identified by sec 40(2)(b) of the 1947 Act as the only two parts of the Crown that could be sued in respect of the alleged liability of the Crown (paras 60, 62); (9) it would be strange in a devolved nation with its own legal system, with the Scottish Ministers paying the salaries of judicial...