Vicarious liability - the latest from the UK Supreme Court

On 10 December 2025, the UK Supreme Court (UKSC) handed down their judgment in X v The Lord Advocate. This is their most recent consideration of the application of vicarious liability.

Two criteria must both be met for the doctrine of vicarious liability to apply -

1. the nature of the relationship between the two parties must either be one of employment, or one that is sufficiently similar or “akin” to employment that it justifies treating it the same way. The relationship criterion is not however met when the wrongdoer is truly an “independent contractor” and not subject to a sufficient degree of direction or control by the other person or organisation, and
2. there must be a sufficiently close connection between that relationship and the wrongdoing.

In X v The Lord Advocate, the focus for UKSC was on part one of the two-part test, nature of the relationship.

The factual context was alleged wrongdoing by a Scottish sheriff. The specific question for UKSC was whether “the Crown”, represented in this case by the Lord Advocate as a member of Scottish Government, “employs” (in the vicarious liability sense) a sheriff. UKSC’s answer to that question is no, on the basis (with emphasis added) that - 

• “59. … there is no control by the Scottish Government over the performance by sheriffs of their judicial functions”, and
• “60. … it is a constitutional principle, resting on the separation of powers, that the judiciary is independent of government”.

Therefore, the Lord Advocate and Scottish Government are not vicariously liable for wrongdoing (if there has been wrongdoing) by a sheriff. 

Although the specific question and answer in this case does not change the law on vicarious liability and may be considered confined to the position in law of the judiciary only, two points can be drawn from the judgment more widely -

• The doctrine of vicarious liability is the same, in both terms and application, in Scotland as in England. Lord Burrows made this point in the judgment: “21. … It is common ground that the same law applies in Scotland”. Hence Scots law is aligned with UKSC’s previous explanation of English law in BXB v Trustees of the Barry Congregation of Jehovah's Witnesses [2023] UKSC 15.
• The significance of “control” in vicarious liability cases when considering the nature of the relationship criterion. At the end of paragraph 60, UKSC note that “… the Scottish Government can tell a sheriff neither what to do nor how to do it.” 

This case also stands as another example of the many cases in which vicarious liability must be considered carefully and in the context of the particular facts and circumstances of the case. Sheriffs are appointed by the monarch on the recommendation of the First Minister of Scotland, and the First Minister can, after due process, remove them. The Scottish Ministers (government) are responsible for paying sheriffs. In the final analysis, though, the relationship was not sufficiently akin to employment for vicarious liability purposes given the lack of day-to-day control over a sheriff’s activities and, fundamentally in this case, because government and judiciary are independent under the British constitutional doctrine of separation of powers. 

While the second part of the vicarious liability test, on “connection”, was not engaged as a disputed issue of law in this case (though it may later have been engaged as a disputed issue of fact if the case had been allowed to continue), it is notable that questions of the “employer’s” control over an “employee” are also often raised when exploring the (alleged) wrongful or negligent conduct and its proximity (or otherwise) to “employment” duties in the context of assessing whether there is a sufficiently close connection. That said, UKSC made clear in BXB that each part of the two-part test must be considered separately. Our point is that “control” can be a relevant factor for both parts of the test. 

As ever with issues of vicarious liability, decisions can be highly fact-sensitive in the individual case. It follows that we may well see more cases on the doctrine come before UKSC as lawyers continue to reckon, in individual cases, with the changing landscape brought about by decisions on it in recent years.    

A link to the UKSC judgment in X is here. A link to their previous judgment in BXB is here.