The High Court is to be asked to enter judgment in default against more than 100 members of the Christian Brothers later this month in a case where a man is seeking damages from the congregation for historical sex abuse.
The development is a significant one in a case where the abuser, who cannot be named for legal reasons, has pleaded guilty in the criminal courts to sexually assaulting the plaintiff, but the civil case against the congregation, which was initiated four years ago, has been complicated by the legal strategy being adopted by the Christian Brothers.
The congregation has declined to put forward a nominee to be sued on its behalf. Most congregations defending such proceedings provide a nominee, though they are not obliged to do so. If a congregation does not put forward a nominee, a plaintiff has to sue all of the members of the congregation at the time of the event for which damages are being sought.
In September 2021 the plaintiff got an order that the congregation provide the names and address of all of its members in between dates in 1979 and 1984. Earlier this year he got another order, adding 118 new defendants to the case.
On Wednesday Mr Justice Tony O’Connor said he would hear an application on May 24th for judgment in default against 103 defendants who he was told have now been served with legal papers but have not entered an appearance.
Other members of the congregation including brothers who live abroad, or who have not yet been served, remain as defendants in the case. Andrew Nugent BL, for the plaintiff, told Mr Justice O’Connor his client was told that one defendant, Br John Gibson, had an address in Arbour Hill Prison, in Dublin, but when papers were served on him they were returned marked “released”. “We don’t know where he is. It appears certainly he is no longer in Arbour Hill Prison.”
The head of the Christian Brothers in Ireland, Br David Gibson, who is one of the defendants in the case, was represented in court on Wednesday in his personal capacity. Conor Rubalcava BL, for Br Gibson, objected to the application that legal papers for Br John Gibson and another defendant, Br William Ryan, be sent to his client by way of service. However, the judge granted the application.
He also granted an application from Mr Nugent that Br David Gibson be ordered to disclose any information he had about grants of probate or letters of administration in relation to 14 brothers who were on a list supplied to the plaintiff in 2021 but who are now known to be deceased.
This order, which was also resisted on behalf of Br David Gibson, is needed so the brothers’ estates can be made defendants in the action. Failure to do so can affect the level of damages received by the plaintiff if he is successful.
Br Gibson is being represented by Frank Buttimer solicitors, of Cork. Mr Nugent told the court that solicitor Philip Treacy, of Coleman Legal, for the plaintiff, received a communication in April from defendant Br James Dormer, saying legal correspondence about Bro Ryan could be sent to Buttimers in Cork.
In opposing the order in relation to Brs John Gibson and William Ryan, Mr Rubalcava said it didn’t seem right, in the balance of justice, that Br David Gibson should be put in the position of receiving the papers on behalf of co-defendants.
Mr Nugent said there was an issue of procedural fairness in the case. It was four years to the month since the proceedings were issued “and we still don’t have matters off the ground”.
Mr Justice O’Connor said he would also hear an application on behalf of Br David Gibson on May 24th that the plaintiff be ordered to enter into mediation. He said he was trying to progress the case and get it out of a “procedural morass”.