A man suing for damages over alleged sexual assaults by a Christian Brother has obtained a High Court order requiring the congregation’s Irish province leader to give him the names and addresses of all members of the order at the time of the alleged assaults who are still alive.
The order was sought to pursue vicarious liability claims after the province leader, Brother Edmund Garvey, declined to act as legal nominee of the congregation for the purpose of defending the man’s proceedings.
The man initiated civil proceedings in 2019 against a particular brother over alleged assaults on dates between August 1st, 1979 and December 31st, 1984.
He alleges he was assaulted by the defendant brother, a teacher, while he was a pupil at a school run by the congregation and also at properties under its control. He also took the case, in an intended representative capacity, against Brother Garvey, as vicariously liable for any wrongdoing of another member of the congregation.
Brother Garvey declined to act as representative and also failed to disclose to the man, for the purpose of pursuing claims of vicarious liability, names and addresses of all individual brothers who were members of the congregation at the time of the alleged assaults and are still alive.
In a pre-trial application, the man sought orders requiring Brother Garvey to defend the proceedings in a representative capacity and to give him the names and addresses of the individual members of the congregation between the relevant dates.
No jurisdiction
In a judgment this week, Ms Justice Niamh Hyland said she had no jurisdiction to order Brother Garvey to defend the proceedings in a representative capacity.
She said the court cannot order an unwilling defendant to act in a representative capacity on behalf of other unnamed and identified defendants.
However, the judge ruled she could make an order, under the court’s inherent jurisdiction, requiring Brother Garvey to provide the man with the names and addresses of all members between the relevant dates who are still alive.
Arising from a Supreme Court decision, the plaintiff cannot sue the Christian Brothers as they are an unincorporated body but, individually, members of the congregation are capable of vicarious liability for any wrongdoing of another member, if they were members during the relevant period, she noted.
One or more brothers could act as representatives for the congregation in these proceedings but have declined to do so, she said. That meant, if the plaintiff wished to sue the congregation for the alleged wrongs, the only way he can do so is to sue the brothers individually under the doctrine of vicarious liability. To do so, he must have their names and addresses, she said.
Prejudiced
The order sought is appropriate and the circumstances warrant it because the man requires the information sought to prosecute his claim and is likely to be prejudiced without it, she said.
It was not argued that the information is not within the procurement of Brother Garvey, no reason has been given to justify withholding it and the interests of the brothers whose names are sought, including their right to privacy, will not be adversely affected by the order, she held.
“It is not as if the brothers were part of some secret society whose members never expected to have their identity disclosed.”
A situation such as this, where the province leader is refusing to identify his fellow members of the congregation during a particular time period, despite the fact they were clearly identifiable as Christian Brothers, is “rare indeed”.
The order was in the interests of justice and allowing Brother Garvey to withhold the information would be unfair to the plaintiff and contrary to the interests of justice, the judge concluded.
