A brother and sister suing Cardinal Sean Brady and another bishop arising from abuse suffered at the hands of clerical child abuser Brendan Smyth will have to prove that a settlement of a previous case does not prevent them from bringing their legal action.
The president of the High Court, Mr Justice Nicholas Kearns, has directed a trial on November 28th of a preliminary issue as to whether the previous settlement of proceedings brought by the siblings from Belfast was "the subject of a prior accord and satisfaction".
The pair are suing Cardinal Brady and the Bishop of Kilmore, Leo O’Reilly - as successor to the previous bishop of Kilmore, Francis McKiernan - alleging negligence over allegedly failing to take any or any adequate steps to ensure Smyth did not continue to perpetrate sexual assaults on them in the 1970s and 1980s.
Cardinal Brady is being sued in his personal capacity over his role as part-time secretary to Bishop McKiernan in 1975 during the investigation of complaints about Smyth, since deceased.
It is claimed he and McKiernan failed to report to gardaí that signed complaints had been made against Smyth regarding his assaults on other children arising from two meetings in 1975.
It is claimed the defendants owed a specific duty of care in circumstances where one of the children interviewed at the meetings identified the brother as being a potential victim of Smyth.
The case against both defendants was brought in 2011 in the High Court, 13 years after separate cases taken by the complainants in Belfast were settled.
In those Belfast cases, the siblings had sued Smyth's religious order, the Norbertines, of Kilnacrott Abbey, Ballyjamesduff, Cavan, for failing to take a number of steps, including warning parents about Smyth or stopping him from operating as a bona fide priest under the auspices of the order.
Yesterday, Rossa Fanning, for Bishop O’Reilly, asked the High Court to direct the hearing of a preliminary issue before the main proceedings against the two clerics goes ahead.
Counsel asked the court to first determine whether the two are barred from taking the action because of the Belfast cases in 1998. Although Cardinal Brady was not represented, he was supporting this application, counsel added.
Mr Fanning wants the court to rule whether that 1998 settlement means this latest case cannot go ahead. Counsel contends that settlement was stated to be “full and final” for all claims by the siblings relating to the abuse carried out by Smyth.
The court should also decide whether this action amounted to an abuse of process, fell outside the time periods set by the Statute of Limitations and/or should be struck out due to alleged inordinate and inexcusable delay.
Robert Haughton SC, for the siblings, said it was accepted the case relates to the same sexual abuse covered by the Northern Irish case, but contended the causes of action against these defendants was different from the action taken against the Norbertine order.
This arose because certain information came to light in 2010 through the media as to Cardinal Brady’s knowledge in 1975 and that information was effectively concealed from the pair before the 1998 settlement, counsel said.
It was also argued the settlement agreements indicated no intention to discharge the defendants from the claims in the current proceedings. They had received legal advice at the time they had no case against Cardinal Brady's predecessor, Cardinal Cathal Daly, the court was told.
It is claimed by the complainants that Cardinal Daly told a number of people who said they had been abused by Smyth their claims were not matters for him but for the Norbertines, and they should take them up directly with the order. The settlement of the Northern Irish cases did not represent the full monetary value of the siblings’ injuries, it is also alleged.