The pursuer, a legal practitioner in Scotland, alleged that on three occasions, two of which took place in a court building, she was assaulted by the first defender, a member of the Scottish judiciary holding the office of sheriff, and that the four assaults taken together comprised harassment under the Protection from Harassment Act 1997. She brought proceedings in the Court of Session claiming damages against the first defender but also, pursuant to sections 2(1)(a), 40(2)(b) and 43(b) of the Crown Proceedings Act 1947, against the Lord Advocate as second defender as the representative of the Crown in litigation in Scotland on the basis that the Crown would be vicariously liable for the first defender’s delicts if proven at trial. The Lord Ordinary found that a sheriff was a “Crown servant” within section 2(1)(a) of the 1947 Act; that although a sheriff did not have a contract of employment with the Crown, their relationship had the same incidents so as to be “akin to employment” for the purposes of the established “stage 1” test for vicarious liability; and that two of the acts complained of would have met the “stage 2” test, namely that the wrongful conduct was so closely connected with acts that the sheriff was authorised to do that it could fairly and properly be regarded as done by him while acting in the course of his quasi-employment, albeit they were time-barred. On appeal the Inner House, reversing the stage 1 test decision, held that judicial office-holders were not Crown servants but officers of the Crown whose role was not akin to employment and so any claim that the Crown was vicariously liable for the first defender’s alleged delicts was bound to fail and the stage 2 test did not arise.
On appeal by the pursuer—
Held, appeal dismissed. On its true construction section 2(1)(a) of the Crown Proceedings Act 1947 permitted the recovery by injured persons of damages from the Crown, being the Sovereign in his official capacity, by way of vicarious liability for acts or omissions of servants of the Crown in tort or, by virtue of section 43(b), in delict and which, by virtue of section 40(2)(b) of the 1947 Act had arisen in respect of His Majesty’s Government in the United Kingdom or the Scottish Administration, which term included the Scottish Government. Section 2(1)(a), however, imported the common law on vicarious liability, which extended beyond torts or delicts committed by servants or agents to include torts or delicts committed by those who were in a relationship akin to employment. Since a sheriff was not an employee of the Crown with a contract of employment, a pursuer would have to establish that there had been a relationship between the appropriate body through whom the Sovereign in his official capacity was acting and the sheriff which was akin to employment. The relevant relationship here was that between the Scottish Government, which had responsibility for the payment of the salaries of judicial office-holders and for their appointment and removal, and the sheriff. Given the lack of any control by the Scottish Government over the performance by sheriffs of their judicial functions, coupled with the constitutional principle, resting on the separation of powers, that the judiciary was independent of government, the relationship between the sheriff and the Scottish Government was not akin to employment for the purposes of deciding stage 1 of the vicarious liability inquiry. That was so notwithstanding that the Scottish Government might be said to be the ultimate source of sheriffs’ remuneration, allowances and pension benefits. Accordingly, the pursuer was bound to fail at stage 1 of the vicarious liability inquiry and the Crown was not vicariously liable for the alleged delicts of the sheriff (paras 21, 29, 37–38, 48–49, 51–54, 57–61, 63).
Kenny McBrearty KC and Adam McKinlay (instructed by Livingstone Brown, Glasgow) for the pursuer.
Ruth Charteris KC, Solicitor General for Scotland, Kay Springham KC and Dominic Scullion (instructed by Scottish Government Legal Directorate, Edinburgh) for the Lord Advocate.