Scotland Abuse Case Update: Vicarious liability in light of BXB v Trustees of the Congregation of the Jehovah’s Witnesses

Introduction

In X v Sheriff Brown and the Lord Advocate [2024] CSIH 6  the Inner House of the Court of Session considered the constituent elements of the test for vicarious liability following the decision of the Supreme Court in BXB v Trustees of the Congregation of the Jehovah’s Witnesses.

Background

The pursuer (claimant), a legal practitioner, alleged that she was assaulted by a sheriff (the first defender) on three separate occasions at common law and a further which she contends, together with the others, constituted a course of harassment in terms of s8 of the Protection from Harassment Act 1997.

In addition, the pursuer sued the Lord President as second defender, the Lord Advocate as third defender, and the Advocate General as fourth defender on the basis that they were vicariously liable.

The case was abandoned against the Lord President at an early stage.

Allegations

In brief summary, the allegations of wrongful conduct by the first defender were as follows:

1. Following a hearing before the sheriff, discharged due to technical difficulties, the pursuer encountered him in the reception area of the court building and she apologised for the technical difficulties. The sheriff is alleged to have told her not to worry and placed his hand on her face.
2. The pursuer was working in the course of her employment as a solicitor in the court building when the sheriff’s bar officer was told to bring her to the sheriff’s chambers. In the sheriff’s chambers he is alleged to have remarked on her “pretty face”, hugged her twice, lingering with his face on her shoulder the second time until she indicated her desire to leave, and then on her departure he patted her bottom twice as she went through a doorway.
3. On the train travelling to work, the sheriff sat down next to the pursuer and placed his hand on her inner thigh. She had to put her handbag on her lap as a barrier to him touching her further.
4. Following her reporting his conduct to the Judicial Office, she received a FaceTime call from the sheriff on her mobile phone. She did not answer it. A further complaint was then made to the Judicial Office.

Decision of The Outer House

The case was brought before the Lord Ordinary (Judge at First Instance) on the procedure roll (strike out hearing) in respect of three issues:

   (i)    the Crown’s potential to be held vicariously liable for the wrongdoings of a sheriff;

   (ii)   time-bar; and

   (iii)    which defender was the appropriate entity as representative of the Crown.

(i) The appropriate representative of the Crown

The first issue to sort out was, of course, who was the correct entity against which to bring the claim in vicarious liability.

The Lord Ordinary’s decision was that, on the basis of the Crown Suits (Scotland) Act 1857 and Crown Proceedings Act 1947: proceedings in Scotland against the monarchy, the interest of the Crown (including Scottish Administration), or any public department, should be directed to the ‘appropriate Law Officer’. This would be either the Lord Advocate where the proceeding is against any part of the Scottish Administration or the Advocate General in any other case.

The Lord Ordinary decided held that as the vicarious liability claim was against part of the Scottish Administration. Accordingly, the entity said to be vicariously liable for the sheriff (should VL be established) is the Scottish Government, and the fourth defender was let out of the action.

(ii) Time-bar

The claim was served on the third defender more than three years after the first two alleged assaults were said to have taken place – accordingly, the Lord Ordinary was of the opinion that these were time-barred and that there was no good reason put forward for the delay in litigating them.

The third and fourth incidents were found not to be time-barred.

(iii) Vicarious liability of the Crown for a sheriff’s wrongful conduct

The pursuer submitted that all that was necessary to confer vicarious liability was that the sheriff was a ‘Crown servant’ in terms of the Crown Proceedings Act 1947. The Lord Ordinary agreed that whether a judicial officer was a servant or agent of the Crown was a straightforward interpretation of that legislation and noted that section 2 of the 1947 Act also provided that the Crown is subject to liability in tort as if it were a private person.

It followed that the question of whether the relationship between the Crown and Crown servant was akin to that of an employer–employee (stage one). In order to answer this, evidence on the facts would have to be heard. The pursuer could not be said to be bound to fail at this stage.

In relation to stage two – was there a sufficiently close connection between the work the sheriff was authorised to do and the acts complained of, such that they could be regarded as being done in the ordinary course of his quasi-employment? The Lord Ordinary took a broad view, considering the role of a judicial office-holder and their degree of authority and control over those appearing before them and the wider profession – for example highlighting that an invitation to chambers would normally be accepted.

He drew a distinction between the first two incidents and the second two. He concluded that following evidence, as the first two alleged assaults occurred on court premises, the pursuer was not bound to fail. However, as the other two incidents which were not on court premises, the Lord Ordinary held that the pursuer was bound to fail to satisfy the stage two test on these.

The Lord Ordinary’s Court Order

On the findings above, the Lord Ordinary’s interlocutor ought to have dismissed the pursuer’s case regarding vicarious liability for all of the common law wrongs: the first and second on the basis they were time-barred, and the third and fourth because the pursuer was bound to fail on the stage 2 test. Averments regarding the incidents forming a course of harassment in regard to the statutory-based claim could remain.  

However, the interlocutor did not exclude from proof averments in terms of the third and fourth incidents in relation to vicarious liability, for either common law delicts or the statutory harassment claim.

Reclaiming (Appeal)

Both the pursuer and the third defender reclaimed (appealed).

The third defender’s appeal was based on the assertion that the Lord Ordinary had erred in law in three aspects:

(i)   In finding the stage one test met

The third defender argued that the Lord Ordinary erred in considering the status of the sheriff and not sufficiently considering the nature of the relationship between a judicial office-holder and the Crown. It was submitted that the Crown did not exercise control over judicial office-holders. Judicial officers were in the category of “true independent contractors”.

• References in authorities such as BXB v Trustees of the Congregation of the Jehovah’s Witnesses to the place of a tortfeasor in a “hierarchy” or “organisation”, or to the putative party’s degree of “control” had to be read in the light of the constitutional position of judicial office-holders. The principle of judicial independence is a cornerstone of a democratic society, operated in accordance with the rule of law.
• There was no vestigial level of control by the Scottish Government over judicial office-holders.
• The work of judicial office-holders was not “in furtherance of the aims” of the Scottish Government.
• Appointment, although formally made by the monarchy was not a typical recruitment process, nor was removal from office.
• If judicial office-holders were akin to employees of the Scottish Government, they would feel beholden to it and behave accordingly, eroding judicial independence.

(ii)   In holding that the stage two test was met in respect of the first two incidents

• Alleged delicts all related to personal matters and were in pursuit of the sheriff’s own private ends.
• The Lord Ordinary had wrongly focused on his status and not the close connection of the delictual acts and what he was authorised to do. The pursuer had failed to plead the nature of the close connection.

And

(iii)   In failing to uphold the time-bar plea in respect of the harassment claim

• If there was no vicarious liability for the common law delictual claims relating to the third and fourth alleged incidents, then the chain of harassment must have ended at the second incident. The common law claims against the third defender in respect of the first and second incidents were time-barred, and accordingly, the statutory harassment claim must also be time-barred.

The pursuer’s appeal

The pursuer accepted that the mere fact judicial office-holders were servants of the Crown did not automatically determine there was vicarious liability. Both stages of the test set out in BXB are required to be satisfied. However, the pursuer still argued that judicial officer-holders and the Crown had a relationship akin to employment (in satisfaction of stage one) for the following reasons:

• The use of the term “servant” was a strong indicator that being a Crown servant is akin to employment.
• Judicial office-holders are appointed by the monarch, swear an oath to him and administer justice in his name.
• Judicial office-holders are paid a salary.
• They were integral in the Crown’s administration of justice and “overall regulation of society” – all for the benefit of the Crown and the public at large.
• Though there was no control over the exercise of judicial functions, there was a level of administrative control by senior judges in deciding where office-holders would sit, what type of cases they would hear and how many.
• There was a defined process for their appointment, discipline and removal.

The pursuer’s arguments in respect that stage two was satisfied included:

• The authority conferred upon judicial office-holders extended beyond their interactions on the bench, and this was an incident of their quasi-employment.
• Deference was expected and received from legal practitioners. Even outside the courtroom, legal practitioners would be disinclined to disagree with judicial office-holders for fear of antagonising them.
• Though the third and fourth incidents occurred way from the courthouse, they ought to be viewed in the context of the first two incidents which did take place in the courthouse, and they formed part of a course of conduct which flowed from those.
• Accordingly, the pursuer could not be said to be bound to fail to establish a close connection, and a proof ought to have been allowed to proceed.

In addressing the issue of time-bar, the pursuer submitted that the Lord Ordinary ought to have exercised his discretion in terms of s19A of the Childhood and Limitation (Scotland) Act, given that there was no forensic prejudice to the Crown. There was no issue of lost evidence or stale claims. The pursuer, on the other hand, would be prejudiced by proceeding only against the sheriff as it was unknown if he had the means to meet a successful claim. At the procedure roll hearing, further information which was not available to the Lord Ordinary was also presented in support of the submission that the court should exercise discretion in respect of allowing the common law claims against the third defender to proceed in respect of the first two incidents though brought late.

Decision of The Iner House (Appeal Court)

If there is vicarious liability it could only be on the part of the Scottish Government.

The judgment of Lord Burrows JSC in BXB v Trustees of the Barry Congregation of the Jehovah’s Witnesses sets out a helpful summary of the modern law of vicarious liability, including the two-stage test. Furthermore, the test invokes legal principles that in the vast majority of cases can be applied without considering the underlying policy implications. The same two stages apply to cases of sexual abuse as they do to other cases of vicarious liability.

The relationship between the sheriffs and the Scottish Government

They are not employees, nor are they true independent contractors. They are most aptly described as sui generis. Whether judicial office-holders are Crown servants or not is contentious. In the Outer House’s opinion, because of the absence of control over them, they are not Crown servants for the purposes of the 1947 Act. They are officers of the Crown.

In any event, it is unnecessary to decide whether they are servants or agents because section 2(5) of that legislation applies to a range of persons who may or may not be judicial office holders.  

The Scottish Courts and Tribunal Service (SCTS) is a body corporate independent of the Scottish Government. It is the SCTS which has the function of ensuring the provision of officers required for the purposes of the Scottish Courts and the judiciary of those courts. Sheriffs are paid by the SCTS. Levels of salary and allowances are a reserved matter for the Treasury. Pensions are governed by statute, but payable from the Scottish Consolidated Fund by the Scottish Government. These financial arrangements – carefully put in place in order to preserve judicial independence – are very different from those in a normal employer/employee relationship.

The Scottish Government has no control over how sheriffs perform their judicial functions, nor does it exercise control over the judiciary as an institution.

Various entities detached from the Scottish Government have roles in the process of recruitment and appointment of judicial office-holders and, similarly, effective control over discipline and removal from office lies with bodies independent of the Scottish Government.

Though there is a hierarchy of seniority among the judiciary (such as the Lord President being head of the Scottish judiciary and the sheriffs principal exercising control over matters such as court allocation), such control is exacted by senior members of the judiciary, and not the Scottish Government.

The absence of any effective control by the Scottish Government is deliberate and based on constitutional principles – the operation of the rule of law, judicial independence, and the separation of powers.

Judicial independence is particularly important and fundamental to our constitutional law – both the individual judge’s adjudicative independence and the judiciary’s independence from the legislature and the executive.

Treating judicial officer-holders as akin to employees of the Scottish Government and thus rendering the Scottish Government liable for them (where the stage two test is met) would undermine judicial independence.

The lack of control by the Scottish Government and the importance of maintaining judicial independence are factors which weigh heavily against finding that judicial officer-holders are akin to employees. These factors outweigh any which it suggested point the other way.

Resultant judgment

The case ought to have been dismissed at first instance as against the third defender, as the pursuer was bound to fail the stage one test. Vicarious liability could not have been established against the third defender.

Conclusion

This case underlines the importance of clearly defining the entity against which a claim in vicarious liability is brought so that the true nature of the relationships can be examined in terms of the stage one test.

Whether a relationship “akin to employment” can be established depends very much on the application of the various factors set out in BXB, and it is interesting how those are weighed in terms of more unusual relationships.

Judicial independence is fundamental to our constitutional law and the risk of eroding that by conferring liability on the Scottish Government for acts or omissions of judicial office-holders is too great.

For more information, please contact:

Stephanie Papa - Solicitor

Email: SPapa@keoghs.co.uk