No Crown liability for the torts of the judiciary: X v The Lord Advocate [2025] UKSC 44

Miles McCollum, pupil barrister at 12KBW, examines the latest Supreme Court judgment on vicarious liability – this time, the liability of the Crown for judicial officeholders.

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Background

The Supreme Court handed down its latest judgment on vicarious liability just before Christmas in a Scottish case, X v The Lord Advocate [2025] UKSC 44. The Pursuer, a solicitor, alleged that the First Defendant, a sheriff (i.e. judge) in the Scottish Sheriff Court, had harassed her over four incidents from May to August 2018.

The Lord Advocate, in her capacity as the legal representative of the Scottish Government, was added to the claim as the Second Defendant. The facts of the alleged assaults were assumed to be true for the purposes of the case, which concerned whether the Lord Advocate could be vicariously liable for the tortious acts of a sheriff. This case contained an added complexity arising from the principle that the Crown cannot be found liable in tort at common law (Macgregor v Lord Advocate 1921 SC 847). Instead, the right to claim against the Crown is provided for in statute by s.2 Crown Proceedings Act 1947 (the “1947 Act”) which reads:

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.

This provision provides the pathway through which vicarious liability is to be applied in this case. At first instance in the Outer House of the Court of Session, Lord Clark found that the Crown could be liable on the basis that: (i) judicial officeholders were “servants” of the Crown; and (ii) there was a relationship akin to employment between the Crown and the First Defendant. The Second Defendant successfully appealed on this issue to the Inner House of the Court of Session, which instead found that: (i) judicial officeholders were “officers” of the Crown rather than “servants”; and (ii) no relationship akin to employment existed. The Pursuer appealed to the Supreme Court.

Issues

The Supreme Court took the issues in the following order:

1. In what capacity is the Crown being pursued in this case?
2. Does the full breadth of the common law doctrine of vicarious liability apply to the Crown under s.2 of the 1947 Act?
3. Is there a relationship akin to employment between the Crown and judicial office-holders?

Judgment

Issue 1

The Supreme Court emphasised the importance of determining what relationship in particular was alleged to give rise to vicarious liability. Is a judicial officeholder a “servant” of the Crown or something else, and what manifestation of the Crown in particular is alleged to be liable? The Court laid out the position in greater detail than had been possible in the courts below, which can be summarised as follows:

1. The “Crown” only refers to the Sovereign in his official capacity [42].
2. The actions of the Sovereign in his official capacity include the actions of the Government of the United Kingdom and the Scottish Administration [43].
3. Judicial officeholders act on behalf of the Sovereign in his private capacity [45].
4. By s.40(2)(b) of the 1947 Act, liability of the Crown under the Act can only arise against the Government of the United Kingdom or the Scottish Administration acting on behalf of the Sovereign in his official capacity [43].
5. Therefore the relevant relationship to be considered in this case is between the Scottish Government and the First Defendant [49].

Issue 2

The Court confirmed that the effect of s.2(a) of the 1947 Act was to impose upon the Crown the common law doctrine of vicarious liability. In doing so, the Court rejected the submission of the Pursuer that s.2(a) creates a form of liability separate from this doctrine [53].

Issue 3

With little fanfare, the Court held that the relationship between the Scottish Government and the sheriff was not akin to employment for two simple and interconnected reasons [59]-[60]. The judiciary was independent of government as a fundamental constitutional principle, meaning the government did not have the requisite control over the judiciary in the execution of its functions. The fact that the judiciary was paid by the government did not change the result that vicarious liability could not be established.

Comment

The law on vicarious liability, which has been on the move for much of this century, has finally come to a rest and can reliably be summarised according to the principles set out in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15. Though the judgement of Lord Reed and Lord Burrows in X v The Lord Advocate [2025] UKSC 44 focuses primarily on the applicability of the doctrine in cases against the Crown, it will be of assistance to practitioners by offering another example of how the BXB principles are applied. Despite being a Scottish case, the decision sets out law which also applies in England and Wales.

This case is essential reading for practitioners in cases against the Crown as it clarifies the relative positions of the Crown, the government and judicial officeholders under s.2 of the 1947 Act. It will be relevant to personal injury practitioners as it precludes the possibility of vicarious liability claims against not only sheriffs, but likely all members of the judiciary who hold constitutionally protected positions. Further, the judgement can be noted for its routine application of the test for vicarious liability as set out in BXB. The times of change in this area of law are well and truly over and a rigorous consideration of the BXB principles will be essential in establishing vicarious liability against third parties in novel cases.

Miles McCollum, pupil barrister