Legal Actionability of 'Societal Revulsion over Despicable Behaviour': Grooming, JWE v LGBT Youth Scotland and the Actio Iniuriarum

By Jonathan Brown - posted 10 February 2026

The case of JWE v LGBT Youth Scotland [2026] CSOH 6 has already attracted comment on this blog from one eminent expert in Scots law. It is with some trepidation that the present author ventures to share his own observations on Lord Braid’s recent opinion. Nonetheless, given that the case of JWE does raise a novel question of some considerable import, further comment is warranted, particularly as I do not share Professor Brodie’s ‘scepticism’ over the ‘wisdom of… [the] recognition of “grooming” as an independent actionable wrong’.

While Brodie is no doubt correct in observing that calls to recognise such are principally concerned with ‘expressing societal revulsion over despicable behaviour’, it does not follow from this that such calls do not involve ‘the identification of a gap in the legal framework’. There is in fact a significant gap in the protection afforded to the dignitary interests of legal subjects in (big C) Common law jurisdictions, one which the recognition of an independent wrong of ‘grooming’ might partially solve.

With that said, the issues that exist in Common law jurisprudence should not be of any concern to Scots lawyers. Scotland is not a Common law jurisdiction and has neither a law of tort nor torts. Within the mixed jurisdiction of Scotland – drawing on the Civilian heritage of the actio iniuriarum – it ought to be possible for a pursuer to claim reparation in respect of any instance of ‘grooming’, notwithstanding the fact that counsel in JWE ‘identified no authority which demonstrated the existence of a duty not to groom another person, or a duty not to introduce another person to exploitative environments and sex work’ (JWE, para.11). The Scots law of delict, contra the English law of torts, has ‘always been represented, and correctly so, as founding more upon principles than upon precedents’ (D. Neil MacCormick, General Legal Concepts (Reissue), (Stair Memorial Encyclopaedia 2008), para.11). As Lord Ross put the matter in Micosta S.A. v Shetland Islands Council 1986 S.L.T. 193, at 198, ‘there is no such thing as an exhaustive list of named delicts… If the conduct complained of appears to be wrongful, the law of Scotland will afford a remedy even if there has not been any previous instance of a remedy being given in similar circumstances’.   

Against this background, by virtue of the broad ‘intellectual superstructure’ of the law of delict, the recognition of ‘grooming’ as a distinct wrong should be readily possible (a significant part of the reason for this being that ‘grooming’ generates ‘societal revulsion’). Any ‘gap’ in the jurisprudence of Common law systems has, or ought to have, no bearing on the law of Scotland as it should be a simpler affair for the Scottish courts to recognise ‘grooming’ as an actionable ‘wrong’ than it is in the Anglo-American world.

As Lord Hope of Craighead observed in commenting on the foundational matter that distinguishes Scots delict, as an organising category, from the Anglo-American law of torts, it is inarguably the case that ‘the creation of a new tort is a bold, some would say an irresponsible, exercise – not to be undertaken lightly. To embrace something new within the concept of delict is so much easier’. While the English law of torts stands, arguably, as a freestanding category in its own right and clearly grew up incrementally through developments made in case law, ‘with us… delict is a part of the law of obligations. It is a broad concept, embracing all civil claims for reparation which lie outside the area of contract’ (Lord Hope of Craighead, ‘The Strange Habits of the English’ in Hector L. MacQueen (ed.), Miscellany VI, (Stair Society, 2009), at 317).

The Scots concept of ‘obligations’ is inescapably Roman in character. Erskine put the matter most plainly in observing that ‘an obligation may be defined in our law, as it was in the Roman, as a legal tie, by which one is bound to pay or perform something to another’ (Erskine, Institute, 3, 1, 2). (Institutional writers before and after his time shared the same view and expressed it in similar terms.) The Scots law of delict, then, broadly denotes the topic of law concerned with the imposition of legal ties between persons in instances of ‘wrongdoing’, entitling the party wronged (who stands as ‘creditor’) to successfully pursue the wrongdoer (who stands as ‘debtor’) in a civil claim of reparation, so obtaining compensation for the wrong inflicted. Just as the governing concept of ‘obligation’ is foundationally Roman, so too is it the case that ‘the Roman law principles are still the main basis of delictual liability in Scots law’ (D. M. Walker, The Law of Delict in Scotland, (W. Green, 1981) at 31).

Though Professor Walker overstates the matter in saying that ‘liability in cases of delict, with few [present author’s emphasis] exceptions is referable to the concepts of injuria [sic] or damnum injuria datum’ (Walker, Delict, at 31), there is an essential truth in the fact that the ‘generality of the right of reparation’ has long been stressed in Scots law and that these twin Roman concepts have an ongoing and outsized role to play in governing delict in Scotland (see T. B. Smith, A Short Commentary on the Law of Scotland, (W. Green, 1962), at 654). As the Inner House of the Court of Session put the matter in CG v Glasgow City Council 2011 S.C. 1, many cases which arise in delict – particularly those concerned with sexual abuse – are at their core concerned with ‘affront and degradation’ rather than ‘physical injury’ or the recovery of damages for loss caused by wrongdoing (at para.30). In such cases, the ‘despicable behaviour’ of the defender lies at the very heart of the pursuer’s claim and the feeling of ‘societal revulsion’ which the wrongful conduct engenders is unquestionably relevant to the determination of the recoverability of compensation. The actions arising out of cases of this kind can be located under the umbrella of the actio iniuriarum, received into Scots law from Roman law at an early stage in Scotland’s legal development.

It is regrettable – and indeed, the Inner House itself appeared to regret – that in CG ‘the pleadings [did] and indeed the discussion before us did, not explore the jurisprudential basis of the claim for damages for deliberate physical and sexual abuse, and whether the claim might be related more to the actio injuriarum than the lex acquilia [sic]’ (at para.30). Had the court been afforded the opportunity to explore and clarify the law relating to iniuria in Scotland, it undoubtedly would have recognised that – being that ‘the essence of the actio iniuriarum is of unwarranted interference with the person’ (per McCallum v Morrison [2023] SAC (Civ) 23 at para.31) – serious forms of sexual assault (including the most serious of all, rape) are species of iniuria within the ‘intellectual superstructure’ of the Scots law of obligations. The essence of the ‘wrong’ in cases of rape, sexual touching, ‘upskirting’, the sharing of non-consensual pornographic images of an ex-partner, stalking, harassment and so many other sexually-motivated wrongs is the contumelious disregard for the dignity of the person (so often, but not necessarily as JWE itself indicates, a woman) which demonstrates that the wrongdoer sees the victim as nothing more than a means to their own ends at best, or an obstacle to be dominated at worst. Indeed, it is not without reason that Walker and McLean each describe the named delict of rape as a ‘pure actio injuriarum [sic]’ (Walker, Delict, p.498; Alasdair MacLean, ‘Autonomy, Consent and the Body in Delict’ in Joe Thomson (ed.), Delict, (W. Green, 2007), para.11.79) – though in that case the matter is overstated as rape, unlike other forms of sexually wrongdoing, necessarily involves interference with a person’s physicality.

While there is little doubt that reparation for negligently-inflicted ‘loss’ (damnum) ‘is certainly the most familiar, and has probably become the most commonly litigated aspect of the modern law of delict’ (Brian Pillans, Delict: Law and Policy, (W. Green, 2014), para.11.01), liability for iniuria – in the specialised sense of ‘affront’ – retains an ongoing relevance in modern Scots law. ‘So common is litigation based on negligence founded on the Aquilian idea of wrongfully caused loss, it is sometimes forgotten that assault owes much to the actio injuriarum and that proof of physical injury or loss is not required’ (William W. Stewart, Reparation: Liability for Delict, (W. Green, 2003), para.A5-003), however it is in fact well-settled that ‘loss’, or demonstrable physical or psychiatric harm, is immaterial in a claim predicated on affront. The distinction between the remedy for iniuria and that emerging from a claim of damnum injuria datum was well-summarised by Temporary Judge MacAulay QC. As he put the matter in Stevens v Yorkhill NHS Trust 2006 S.L.T. 889, at para.63: ‘solatium for “hurt feelings” caused by affront based upon the actio iniuriarum is a different animal to the solatium that can be awarded to a claimant for physical or psychiatric injury. Prima facie the threshold for recovery for hurt feelings is lower than that for psychiatric injury’.

Though the above passage serves well to distinguish the remedy for iniuria from the claim of solatium arising out of damnum injuria datum, the categorisation of “hurt feelings” as the root of a claim for actio injuriarum is unfortunate and might give the misleading impression that actiones iniuriarum are concerned with mere unquantifiable trivialities. This is not the case. The root of the action is not mere emotional distress, falling short of psychiatric injury, but rather ‘affront’ in a more specialised sense (of which, see Niall R. Whitty, ‘Overview of Rights of Personality in Scots Law’, in Niall R. Whitty and Reinhard Zimmermann, Rights of Personality in Scots Law: A Comparative Perspective, (Dundee University Press, 2009), para.3.2.10). The actio iniuriarum in Roman law was concerned with the protection of the ‘personality’ of individual legal subjects – ‘who a person is’ rather than ‘what a person has’ (see Whitty and Zimmermann, Rights of Personality in Scots Law: A Comparative Perspective, para.1.2.1). In like vein, the received Scots action based on affront is concerned with safeguarding the dignity of legal subjects and affording reparation where a delinquent wrongdoer acts with a contumelious disregard of the pursuer’s right(s) of personality. Again, as MacAulay QC put the matter in Stevens, ‘English law, with its different legal history may not recognise the existence of such a [general claim], but that does not impact upon the position in Scotland’ (at para.62).

Unlike in England, where it is fair to say that ‘before 1932 the law of torts had developed without any structure’ (James Edelman, Fundamental Errors in Donoghue v Stevenson), in Scotland ‘by the beginning of the Nineteenth century a general principle of liability for damnum injuria datum was developing… based on ‘fault’ [culpa] and encompassing both intentional and unintentional acts’. The net effect of this was that many named delicts were ‘superseded by the general action for reparation based on culpa’ (Pillans, Delictual Liability, at para.5.01). A great many of those named delicts which were not superseded by this general action retained their character because they had a basis in liability for affront (iniuria) rather than in damnum injuria datum (‘loss caused by wrong[ful acts/omissions]) and, indeed, as some ostensibly nominate delicts such as ‘assault’ emerged in the Nineteenth century, against the general trend, that ‘process of emergence [took] place within a continuing understanding that [the claim] is a species of iniuria’ (see John Blackie, ‘Unity in Diversity: The History of Personality Rights in Scots Law’ in Whitty and Zimmermann, Rights of Personality in Scots Law: A Comparative Perspective, , at para.2.3.2(b)).

Like ‘assault’ and ‘rape’, the named delict of ‘seduction’ is also a species of iniuria and this has consequences for the hypothesis that ‘grooming [may] perhaps [be] no more than a modern-day application of [this] delict’ (JWE at para.12). Professor Brodie expressed his scepticism of the potential link, as per the available case law it seems ‘seduction’ is ‘only committed where the wrongdoer obtains “sexual relations with a virgin” by illegitimate means’ (citing Walker, Delict, at 698 – it should be noted, however, that Walker’s claim that ‘it is essential that the pursuer was a virgin when seduced’ do not in fact appear to be borne out by the relevant Scots sources or case law – see Walker v M’Isaac (1857) 19 D. 340; Chloë Kennedy, Inducing Intimacy: Deception, Consent and the Law, (Cambridge University Press, 2024, at 129-130)). As Stewart put the matter, ‘while there is an established body of law’ governing the relevance of ‘seduction’ claims, ‘these rules appear to be anachronistic’ (Stewart, Reparation, at para.A5-017). Viewed as a specific freestanding wrong, it is consequently difficult to disagree with Brodie’s suggestion that a ‘radical overhaul’ would be required to render a seduction claim relevant in the present day. Yet these imagined difficulties fall away when ‘seduction’ is appropriately recognised as a named instance of iniuria, rather than a specific named wrong akin to a particular tort. Rather than being governed by inflexible and rigid precedential rules, ‘seduction’ should rather be viewed as predicated upon flexible principles which are capable of being adapted to accommodate novel forms of wrongdoing.

The history of the named wrong of ‘seduction’, in Scotland, itself demonstrates this. Per Guthrie Smith’s Law of Reparation, ‘the wrong consists, in the words of scripture, in “having dealt deceitfully with [the victim]”’ (T&T Clark, 1864, at 51) and as late as the 5^th edition of Glegg on Reparation ‘intention to deceive’ was described as ‘an essential element’ of the clam (J. Lindsay Duncan, Glegg’s Law of Reparation in Scotland, (W. Green, 1955), at 133). Yet in 1920 – although there was in fact no allegation of ‘fraud or deceit’ – the Court of Session allowed a case to proceed to proof following an allegation that a woman’s employer ‘had taken advantage of his position as master, and, by assurances that his affection for the pursuer was sincere, had succeeded in seducing her’ (MacLeod v MacAskill 1920 S.C. 72, at 73). While there is little doubt that ‘taking advantage of [a] woman’s dependency as when she is in the man’s employment’ can be construed as an ‘affront’ to her, in the specialised sense of iniuria, it does not fit within the established precedential categories of liability for ‘seduction’ as an ostensible nomen iuris (hence why Lord Dundas was ‘reluctant’ to allow the case to proceed). Nonetheless, because ‘seduction’ is principally a species of iniuria, it is inherently flexible: it is fundamentally capable of developing to afford remedy in new situations, provided that conformity to the core principles of any actio iniuriarum can be made out by the pursuer.

In MacLeod, the pursuer’s sexual integrity was interfered with through the defender’s contumelious abuse of his power. In 1920s Scotland, as in 2020s Scotland, this sort of abuse of power can be said to engender a feeling of ‘societal revulsion’, so justifying a claim of reparation on the grounds that the defender has committed iniuria by affronting the pursuer’s dignity. The historical baggage which weighs down the name of ‘seduction’ should not obscure the prospective utility or suitability of the claim in the conditions of modern life.

Although all available precedents concerning ‘seduction’ concern female victims, it is not difficult to imagine situations in which a man in junior employment is predated upon by a senior colleague, of whatever gender, in the 21^st century. It seems to be an unfortunate constant of the human condition that abusers, given some position of power, will attempt to exercise that power for their base sexual gratification and the law must be capable of responding to afford protection to victims. MacLeod demonstrates that Scots law is capable of doing this. What relevance, then, does the above have for the recognition of ‘grooming’ as a discrete wrong in Scots law?

Immediately, it must be recognised that giving a precise name to the conduct which leads to availability reparation is of less import in Scotland than recognising that the conduct is wrongful and so the victim deserves remedy: recall the judgment of Lord Ross in Micosta. With this in mind, it must be recognised that in any instance of grooming, the groomer manifestly violates the dignity of the victim. As demonstrated in JWE, ‘grooming’ involves a person in a position of power forming a relationship with a vulnerable person with a set design: the design of rendering them pliable to abuse (whether sexual in nature or not). Whether a groomer acts intending to do so, or is merely reckless as to the possibility of this, is immaterial; grooming, by essential definition, seeks to obviate the ability of the victim to refuse unwarranted sexual (and other harmful) advances. This is, patently, an affront – in that specific sense of Scots law – to the dignity of the victim.

That ‘grooming’ is seen to be ‘despicable’ by society is manifest; thus, instances of ‘grooming’ can be said to amount to iniuria and so logically ought to be reparable by means of an actio iniuriarum. This high-level claim has been said to be available ‘where the injured party had no other legal remedy’ by way of a particular named action, but the actio iniuriarum itself is not of ‘very limited application’ as the Sheriff at first instance in McCallum v Morrison 2022 S.C.L.R. 509 erroneously claimed (at para.52). Rather, iniuria – and the action to claim reparation in instances thereof – is a core (if, unfortunately, practically neglected) component of the Scots law of delict which lies at the root of actions which are concerned with ‘affront and degradation’ rather than physical or psychiatric ‘damage’.

Whether the familiar named delict of ‘seduction’ is stretched to encompass instances of ‘grooming’, or ‘grooming’ is to emerge as a nomen iuris in its own right, is in one sense immaterial: in either case, it appears that ‘grooming’ falls under the umbrella of iniuria. Consequently, it seems apparent that the conduct which amounts to what can be descriptively and colloquially termed ‘grooming’ ought to give rise to a right of reparation in Scots law. This would not, contra the position in the Common law world, involve a ‘very considerable change in the law’, but only the recognition of the all-too-often overlooked fact that in Scotland  ‘solatium for… affront based upon the actio injuriarium’ is available due to the essential structure of the law of delict (Stevens, at para.63). While there might be structural reasons for refusing to recognise ‘grooming’ as a discrete wrong within the law of torts, explaining the Irish courts’ ‘circumspection’ on appeal in McDonald v Conroy [2020] IECA 239, there are no such structural reasons for so refusing within the Scots law of delict. Indeed, if anything, given that ‘grooming’ unquestionably evokes feelings of ‘societal revulsion’ in the Twenty-First century, it seems that there is a strong impetus for identifying the wrong as a particular, named, species of iniuria and for affording victims solatium independent of any other possible heads of claim.

The author would like to thank Professors Douglas Brodie and Kenneth Norrie for their very helpful comments on an earlier draft of this blog post. Mistakes remain the author’s own.