The legal strategy being adopted by the Christian Brothers when they are being sued for alleged historical sex abuse is putting people “through the wringer”, according to a solicitor with more than two decades of experience representing claimants taking cases against religious orders.
It is only the Christian Brothers who exercise their legal right not to put forward a person who will act as a nominee for the purposes of such litigation, according to Kathrin Coleman, senior solicitor with Coleman Legal. Taking this position creates huge complications and expense for people wanting to bring the Brothers to court.
The strategy contrasts with that adopted by other religious groups, such as the Spiritans and the Carmelites, orders that are currently in the news in relation to historical allegations of sexual abuse in their schools and that are as a result seeing a significant number of new legal proceedings being lodged.
“I am dealing with the Spiritans. It is very straightforward. They nominate somebody straight away who agrees to accept service of the proceedings,” said Ms Coleman. “It is only the Christian Brothers really who put us through the wringer.”
Asked about the strategy being adopted by the congregation in court proceedings, the Christian Brothers said in a statement that it fully respects the rights of all parties in litigation to progress and argue their case in accordance with the law.
“The congregation continues to view mediation and non-adversarial voluntary agreements as the optimum means of achieving resolution, without the stress of a court appearance. In light of ongoing proceedings before the courts the congregation cannot comment further at this time.”
In 2017, in a case called Hickey vs McGowan where a claimant was seeking damages against the Marist order, the Supreme Court made it clear that “unincorporated associations” such as religious orders cannot themselves be sued as they do not have a distinct legal personality separate from their members. The court also said the surviving members of an order at the time of an alleged abuse could be found to be vicariously liable for any damages that were awarded.
Since that ruling, the Christian Brothers has adopted the legal position of choosing not to put forward a nominee who can act in court proceedings as a representative of the order, something that other congregations agree to do. The organisation has also made claimants go to court to get an order instructing it to name the members of the order at the time of the alleged abuse who are still alive. This process can involve so much time, effort and legal expense that some would-be claimants have decided to discontinue their claims, according to Ms Coleman.
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“It is phenomenal trying to get everybody served [with legal papers] and the costs involved [are significant]”, she said. “Unfortunately, a lot of firms can’t take the cases on because the clients can’t pay and it is too high in terms of outlay for anybody to take on. So it makes [the Christian Brothers] a little bit untouchable.”
In a case against the Christian Brothers due to be mentioned in court on Monday, the judge will be asked to add 117 new defendants to the proceedings after the court had earlier instructed the congregation to disclose the names of all the brothers who are still alive and who were members at the time of the alleged abuse.
In another case against the Christian Brothers currently making its way through the courts, 162 brothers have been named as defendants, including 13 who the claimant has been told live abroad. Every defendant has to be served with court papers and is entitled to appoint their own solicitor.
“One victim spent between €15,000 and €20,000 just serving the summonses,” according to Damian O’Farrell, an independent councillor for Clontarf on Dublin City Council, who successfully sued the Christian Brothers for historical sex abuse in a case that began in the late 1990s and ended 10 years later. His case did not involve his having to deal with the legal strategy since adopted by the congregation, but he is in contact with a number of claimants who are dealing with the new situation as they pursue claims arising from alleged abuse in their schools.
“I’d know several victims who are going through this process,” said Mr O’Farrell. “I’m in my late 50s and they would be all be that age…This is called a double abuse, what the Christian Brothers are doing. When you go to the person or the organisation that has abused you, and they treat you very poorly.”
In his advocacy work, Mr O’Farrell has had dealings with the Catholic Archdiocese of Dublin. “I dealt with the former Archbishop Diarmuid Martin. People always say, ah they are all the same. But they are not all the same. You have no idea of the difference between dealing with the Brothers and dealing with the Archdiocese. No idea. It’s chalk and cheese.”
“They are not reacting in a civilised fashion, the Brothers. There is no remorse. I would see that as proper remorse, to facilitate somebody to [take their case] in a fair fashion. Not just say ‘Sorry’. Remorse for me is more than just saying ‘Sorry’. Words are very cheap.”
Mr O’Farrell believes the order is acting as it is because its members are traumatised by what has emerged over recent times about what some of their colleagues were doing.
“They are in shock and they probably need counselling. And then, on another level, they covet money. Any dealings I’ve ever had with them, they have always talked about money.”
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Another legal issue that arises from religious orders being unincorporated associations is that they cannot hold property. To get around this, unincorporated associations often have a member hold their property for them in trust, or else they establish an incorporated entity for the sole purpose of holding property in trust. Often the property is held in trust for stated objectives associated with the activities for which the association was established. This in turn raises the question as to whether a person who wins damages against the members of a religious order can seek to recover the award from the property associated with the order if that property is held in trust.
The wave of scandal and calls for redress that rocked the Catholic Church in Ireland in recent years was part of an international phenomenon and brought into focus in a number of jurisdictions the legal nature of religious orders and how church property is usually held in trust. Arising from this and the 2017 Supreme Court case involving the Marists, the Law Reform Commission is currently working on a report on the legal issues surrounding unincorporated associations generally, including religious orders.
The complications in relation to suing unincorporated associations can arise in two ways, according to the president of the commission, former chief justice Frank Clarke.
“One is the difficulty of suing 100 or 200 people. There are ways around that, but if people don’t make it easy, it can be difficult. And then what if you win, assuming you successfully bring a case against an unincorporated association, what is there to meet your claim? There is not much use winning if you cannot get recompense in real terms.”
As part of an ongoing consultation process, the commission is looking at how it could be made easier to take an unincorporated association to court and sue for damages.
“One of the ideas we have put out there is that there would be an obligation to nominate somebody to avoid that procedural difficulty of having to serve the plenary summons on 400 different people,” the former chief justice said.
You could argue that if the abuse happened in education and trust property was held for purposes of education, then the wrong happened within education, so why shouldn’t that property be available?— Former chief justice Frank Clarke
In a paper produced as part of an ongoing consultation process, the commission also raised the issue of whether property held in trust should be accessible to pay the damages awarded to a claimant who brought an historical sexual abuse case. In Canada and Australia, the legislatures, having examined the topic, went in sharply contrasting directions.
In Australia, in the wake of a case involving the Catholic Church where a claimant lost, the law was changed insofar as it concerned redress for historical institutional abuse, the former chief justice said: “Legislation was introduced to make it easier to bring cases and to get at trust property. Curiously, in Canada, there was a case where the opposite happened. The courts found you could get at the trust property and the legislature introduced legislation to prevent that happening. So, you had two international examples going in almost opposite directions.”
An argument can be made that property that has been placed in a trust for a specific reason, for instance education, should be ringfenced and used only for that reason. On the other hand, it could also be argued, said the former chief justice, that any damages arising from wrongs committed in the course of exercising that remit should be accessible to a successful claimant.
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“You could argue that if the abuse happened in education and trust property was held for purposes of education, then the wrong happened within education, so why shouldn’t that property be available?”
It is expected that the commission will produce its report next year. The Oireachtas will then have to consider what legislative changes it might introduce. (The report will concern unincorporated associations generally, and not just religious orders.) The former chief justice does not believe that new law directed at court procedures would be restricted to cases taken after the law was introduced. A retrospective application of the law on trust property might present more difficulty “but then there would be very little point, I suppose, in legislating for being able to get behind trusts unless it was retrospective”. The Australian change in the law was specifically in relation to historical abuse. “I think if the Oireachtas was persuaded that that was the way to go, it would be have to be retrospective.”
Because of the huge role it played in the running of schools and residential institutions in the Republic during the 20th century, the Christian Brothers has been hugely affected by the wave of controversy, State inquiries, court actions and redress claims that have followed from revelations of physical and sexual abuse. As part of this process, the congregation has made substantial payments to the State-run redress scheme, and continues to do so. It also continues to face claims for damages before the courts.
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Figures published by the Charities Regulator state that in the year to the end of August 2021 the Congregation of the Christian Brothers European Province – Republic of Ireland had income of €7.3 million and expenditure of €6.2 million. The source of the income is not disclosed other than stating that donations were responsible for €3.6 million, and “other sources” for €3.3 million. Central government, local authorities and public bodies were responsible for smaller amounts. Total assets owned by the province were worth €66 million, and liabilities were €7 million, according to the published figures.
In 2008, the brothers established a trust named after the congregation’s founder, the Edmund Rice Schools Trust. During the year after it was established the order transferred primary and secondary schools with a value of approximately €400 million to the trust, the trust said at the time. The playing fields associated with the schools were not transferred, but playing fields are now being transferred to the trust in a deal with links to the redress scheme.
According to the Department of Education, the transfer involves an arrangement whereby the State will receive 50 per cent of the proceeds of any future sale of the properties by the trust. The valuation being put on the property being transferred is €127 million.
The latest filed accounts for the Edmund Rice Schools Trust show that it had 96 schools at the end of August 2022. During the year it received a grant from the congregation of €249,998 to support its operations.
The congregation has an Irish company called Richmond Newstreet that has assets that are used for projects in India and countries in Africa and Latin America. According to its accounts for 2021, this company produced a surplus of €2.9 million and had an investment fund with a value of €22.6 million at year’s end.