Legal practitioner’s case against sheriff for harassment allowed proof after ruling that Lord Advocate was correct additional party

About this case:

• Citation:
  [2023] CSOH 17
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Clark

X, the pursuer, originally raised the claim for £120,000 against sheriff Y, the Scottish Ministers, and the Lord Advocate, but later abandoned her case against the second defender and added the Advocate General for Scotland as a fourth defender. It was argued generally for the Crown that it had no vicarious liability, but the Lord Advocate and Advocate General each argued that the other was the appropriate law officer to represent the Crown in this case.

The case was heard by Lord Clark in the Outer House of the Court of Session. McBrearty KC appeared for the pursuer, Springham KC for the third defender and Pirie KC for the fourth defender. No appearance was made by the first defender at this stage in proceedings.

Agent of the Crown

It was averred by the pursuer that the Y had assaulted her on four separate occasions across 2018, which constituted individual delictual acts at common law and also a chain of harassment under the Protection from Harassment Act 1997. These were that he had touched her cheek without consent in May 2018, hugged her and patted her firmly on the bottom in July 2018, attempted to place his hand on her right thigh later in July 2018, and attempted to FaceTime call her in August 2018 after she had reported Y’s conduct to her superiors. The first defender denied that he had assaulted the pursuer.

The pursuer’s position was that sheriffs were “servants or agents” of the Crown in terms of the Crown Proceedings Act 1947. The wrongful conduct of the first defender was closely connected with acts he was authorised to do, as on each occasion of harassment he had spoken to her in connection with a case she was currently involved in.

On behalf of the Lord Advocate it was submitted that there was an insufficient relationship to give rise to a vicarious liability, as the Scottish Ministers were prohibited from interfering with a sheriff’s exercise of their functions. Further, vicarious liability for the acts of members of the judiciary would be inimical to judicial independence, and if the alleged acts of the first defender were closely connected to the exercise of his functions there could be no liability on the part of the Crown.

For the Advocate General the submissions on vicarious liability of the Lord Advocate were partially adopted. However, the Crown’s alleged liability in the case did not arise in respect of the UK government, and under section 4A of the Crown Suits (Scotland) Act 1857, the appropriate party to represent the Crown was the Scottish Administration as represented by the Lord Advocate.

Not bound to fail

In his decision, Lord Clark began by observing: “In the submissions, I was not taken to any judgments in which the issue of whether a judge is a Crown servant has been discussed but there is one useful example: in Mackay and Esslemont v Lord Advocate (1937), Lord Robertson referred to ‘Servants of the Crown who hold judicial offices’. There is also some support for that view in academic writing, although I do not suggest that it is the prevailing view.”

He continued: “Section 2(1) of the 1947 Act plainly applies vicarious liability for tortious acts of Crown servants. There would be no need for section 2(5), excluding vicarious liability where responsibilities of a judicial nature are being discharged, if a judicial office holder is not a Crown servant. On that basis alone, I conclude that the pursuer is not bound to fail in her contention that a member of the judiciary is a Crown servant for the purposes of section 2(1).”

Addressing whether the Lord Advocate or Advocate General was the appropriate party in the issue of vicarious liability, Lord Clark said: “There was significant focus in the submissions for the Lord Advocate and the pursuer on the lack of involvement on the part of the Scottish Administration with judicial office holders. For example, the Lord Advocate averred and the pursuer admitted that: a sheriff is not employed by the Scottish Ministers; sheriffs are independent of the Scottish Ministers; a sheriff is not part of the Scottish Administration; whilst a sheriff is in office, the Scottish Ministers (including the Lord Advocate) have no role (and could not constitutionally have a role) in how that sheriff behaves or otherwise discharges their duties.”

He concluded: “It would be strange that in a devolved nation, with its own legal system, with the Scottish Ministers paying the salaries of judicial office holders and the First Minister recommending who is to be appointed, and being the person responsible for removal of a sheriff from office, and the UK government having no real interest or involvement (except in determining the amount of salary and pensions, as a reserved matter) that this claim does not arise against the Scottish Administration in respect of the Crown’s liability in this case.”

Lord Clark therefore held that the Lord Advocate was the correct party for vicarious liability purposes.