Thursday, 10 November 2011

Catholic Bishops and Vicarious Liability for Priests

A recent case JGE v The English Province of Our Lady of Charity & Portsmouth Roman Catholic Diocesan Trust [2011] EWHC 2871 (QB) has aroused a lot of comment with the suggestion in various quarters that it has meant that Catholic Priests are now regarded as employees in law.

Personally I think it is rather less exciting than that and is not really that surprising.

What the case involved is an allegation, and it is important to remember that at present nothing has been proved, that the Claimant was sexually abused by a Priest between 1970 - 72. The Priest alleged to have done this is now dead and so could not be sued nor could he defend himself. The question for the High Court was whether the Diocesan Trust (in effect the Diocesan Bishop) could be vicariously liable for the acts of this Priest, assuming that the Claimant could prove her allegations. Normally Vicarious Liability applies to employers being liable for the acts of their employees but historically Catholic Priests have not been regarded in law as being employees of their Bishop instead they have been regarded as an "office holder". One of the important points about them not being employees is that a Priest cannot sue for unfair dismissal if he is removed from his Parish or is laicised (defrocked) under Canon Law.

The possibility of Priests being held to be Employees has been increasing over the years. In Percy v. Church of Scotland [2005] UKHL 73 the House of Lords held that a Minister of the Church of Scotland was in fact an employee not an office holder and so could sue on the grounds of unfair dismissal and sex discrimination. Similarly in the case of New Testament Church of God v Stewart [2007] EWCA Civ 1004 a contract of employment existed between an Evangelical Free Church and its Pastor. One of the differences between these case and that of a Catholic, or Orthodox Priest is that in Catholic and Orthodox Theology a Priest has specific sacramental powers and functions which only an ordained Priest can validly exercise. This is not the case in classic Protestant Theology hence the difference between the Church of Scotland Minister as an employee and the Catholic Priest as an office holder. (NB I appreciate I am oversimplifying the Theology but this is a legal Blog not a theological one)

In th JGE case the Judge accepted that Catholic Priests were office holders rather than being employees however he also accepted that notwithstanding the absence of an employee relationship it was still appropriate to hold the Bishop vicariously liable. This is because the concept of Vicarious liability has been enlarging in the UK and other Common law jurisdictions for a number of years. Prior to 2001 in general terms employers were only liable for acts of their employees that had been authorised and not for acts where the employee was, in the classic Victorian phrase "off on a frolic of his own". However in the case of Lister v Hesley Hall [2001] UKHL 22 the House of Lords accepted that a Boarding School (NB a secular school) could be liable for child abuse committed by one of its employees even though the acts of sex abuse were clearly well outside any acts authorised by the employer.

The test set by the House of Lords was whether it was, on the facts, "fair and just" to hold the School vicariously liable and the answer given was yes. In effect a similar question was asked in this case and once again the answer was yes. The Priest was not an employee of the Bishop but nevertheless it was right to hold the Bishop liable. The core principles are set out in paras 35-36 of the judgment

35 I am satisfied, as I have already noted, that the relationship between Father Baldwin and the Defendants was significantly different from a contract of employment; no real element of control or supervision, no wages, no formal contract and so on. But are those differences such that the Defendants should not be made responsible for the tortious acts of the priest acting within the course of his ministry? There are, it seems to me, crucial features which should be recognised. Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to do their work; to undertake the ministry on behalf of the Defendants for the benefit of the church. He was given the full authority of the Defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as representative of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the Defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused.

36 Why, one may ask, does it matter that some of the features of a classic contract of employment do not apply here? What is the relevance to the concept of vicarious liability, for example, of the lack of a formal agreement with terms and conditions; or of the manner of remuneration; or of the understanding that the relationship was not subject to adjudication by the secular courts? Those features may have relevance in a different context, but not to the question of whether, in justice, the Defendants should be responsible for the tortious acts of the man appointed and authorised by them to act on their behalf.

The decision is, as I have stated, not that surprising and had it been different and had the Court decided that Catholic Dioceses were not liable for abuse carried out by Catholic Priests then I suspect there would have been a demand for legislation which might have put Dioceses in an even more difficult legal position. As it is the case is clear that Priests are not employees in law which I suspect was the main point the Church was concerned about.

The case against the Diocese can therefore proceed but I do want to say as a lawyer that I am increasingly concerned by the Justice, or injustice, of Claimants being allowed to bring claims alleging acts decades ago by people who are now dead and unable to defend themselves. That seems to me to go against every principle of Natural Justice and ultimately will bring the law into disrepute.

4 comments:

Bob Hayes said...

Thank you for explaining the implications of this case. Incidentally, I fully endorse the sentiment of your closing paragraph.

Anonymous said...

Thanks for this helpful explanation, Neil.

I share your concerns and in particular I see no reason no reason for the disclosure of accused's name unless and until proven guilty. I do not see how the cause of justice is better served by releasing his name at this stage. If he is found not guilty irreparable damage will have been done to his name and any legacy that he may have, and it is less likely that any remedial action would be taken.

Tobias Stanislas Haller said...

Thank you for this. Here in the US a similar expansion to the principle of "respondeat superior" has taken place to include the provision of a context in which a tort might occur, rather than limiting the range to tortious performance of specific duties. For clergy is seems especially important to acknowledge that the position or office in and of itself creates some expectations and provides an ambit for action not precisely spelled out in the "job description." Thanks for setting out the thinking on the English side of the question.

Anonymous said...

From Chris Morley
I disagree with some of your analysis and conclusions.

You said: "The decision is .... not that surprising ... and had the Court decided that Catholic Dioceses were not liable for abuse ... by Catholic Priests then I suspect there would have been a demand for legislation which might have put Dioceses in an even more difficult legal position.
... it is ... clear that Priests are not employees in law which I suspect was the main point the Church was concerned about."

Rather than attempt to change the law, what would have happened instead is that JGE would simply have appealed to the Appeal Court and would have won (on your own assessment of the law), and because the Catholic Archdiocese of Birmingham had accepted, in a similar case, that it was vicariously liable for sexual abuse by its priest.
The Portsmouth diocese could, like Birmingham, have simply conceded it was in principle vicariously liable, while denying their priest was an employee. The High Court in fact easily accepted the fact that the priest was an office holder, like CoE clergy.
It looks instead more likely that Portsmouth diocese was seeking to evade the principle of vicarious liability and so escape potential liability for paying any compensation.

You also say:
"I do want to say as a lawyer that I am increasingly concerned by the Justice, or injustice, of Claimants being allowed to bring claims alleging acts decades ago by people who are now dead and unable to defend themselves. That seems to me to go against every principle of Natural Justice and ultimately will bring the law into disrepute."

However the courts allow such exceptional cases to proceed to trial, in the interests of justice, because reporting sexual abuse while still a vulnerable child is almost unknown.
That seems to be a way of justifying letting churches, schools and other institutions off the legal hook entirely for child sexual abuse. That really would bring the law, justice and churches and other institutions responsible for caring for vulnerable children into serious disrepute and be an unacceptable scandal to most of the public.

It will be for the High Court to carefully take into account the absence, due to death, of her alleged rapist and abuser. The bishop claims the priest worked on the other side of the diocese at the time and had no contact with her. We may assume he has evidence to prove this defence, or he would not have made such a claim.
And the Court will look critically at the reliability of the claimant's evidence in the context of the very long passage of time.