Tuesday, 17 July 2012

Catholic Bishops and Vicarious Liability for Priests - 2

The case of JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012) is a follow on from the same case in the High Court JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011)  which I blogged about last year

The issue in the case is whether the Portsmouth Diocese could be held Vicariously Liable for alleged Child Abuse occurring 40 years before (I'll return to that point later).  The Claimant alleges she was raped when she was 6 by a Priest of the Diocese.  The Catholic Church does not regard Priests as being its employees but rather as being "Office Holders" and usually in law there is no liability attaching to the acts of a Office Holder, this was for example the legal position as regards Police Constables and it was not until the Police Act 1964 (now s88 the Police Act 1996  )that Chief Constables were made vicariously liable for the wrongful acts of Police Constables under their command. However this act did not change the general legal point that office holders are regarded in law as not being employees and hence as not having an employer who can be held vicariously liable for their acts.

In many other cases involving allegations of sexual abuse by Catholic Clergy the relevant Diocese have not argued the vicarious liability point but agreed that the Court could approach the issue "as if" the Priest in question was an Employee; in this case however the Diocese decided to argue the issue as to whether the Diocese was legally liable and it was argued as a preliminary issue. The Court of Appeal obviously had reservations about this approach as Lord Justice Ward said in para 6
I am far from convinced that trying a preliminary issue is the best way to deal with questions of this sort. 

The Court was also aware that on the facts alleged the Diocese itself was not at fault and did express and indeed Lord Justice Davis noted in para 133 that the entire principle of Vicarious Liability raised questions about
the extent to which, as a matter of policy, an innocent defendant should (without fault) be made to bear responsibility for the wrongful acts of another.

However the Court did decide that even though a Catholic Priest was not an Employee of his Diocese or his Bishop nevertheless the Diocese was vicariously liable for the alleged acts of the Priest and it did accept that in this decision it was extending the legal concept of Vicarious liability.  The ruling has implications for all forms of voluntary organisations since it opens them to the possibility of being sued for the actions of non employees such as volunteers, school governors etc.

More worrying for me is the fact that in this case the Defendant is having to defend itself against allegations of abuse occurring 40 years ago at the hands of someone who is dead.  The allegations are entirely based on the evidence of the Claimant and the accused Priest was dead before the allegations were made. This  puts an impossible burden on any organisation to defend itself.

The Limitation Act 1980  is supposed to prevent claims being brought after six years but the Courts have interpreted it in such a way as to allow sex abuse claims to be brought decades after the alleged events and this makes having a fair trial impossible and circumvents the intention of Parliament when it passed the Limitation Act.  It opens Churches, the Boy Scouts, Barnardos and State Care Homes to the danger of unjustified legal claims in which the only evidence is unsupported allegations made against persons who are dead and unable to defend themselves or their reputation

It is ironic that this decision was made just a week before the High Court begins to hear a case against the UK Government for alleged misconduct in the Mau Mau uprising more than 50 years ago.  By allowing that case and the Portsmouth case to proceed the Courts have subverted the Limitation Act.  Parliament does need to have another look at the entire issue of limitation; surely there has to be a point where allegations are so old that it is simply wrong to allow them to proceed to trial.


Richard Scorer said...

Neil your report on this case is not quite correct. The allegations were made and indeed put to Father Baldwin before he died. If the allegations had only been made for the first time after his death , and if there was no other evidence to be put before the court other than the claimant's account, then it is highly likely that the case would have been dismissed on limitation grounds before it even got to this stage, since the prejudice to the defendant would have outweighed the other factors which fall to be considered under s33 Limitation Act.

Whilst there is a legitimate debate to be had about the difficulties which can arise in ensuring fair trials of historic allegations, it is misleading to suggest either that the courts are routinely entertaining compensation claims in resect of allegations against people who are now dead (they aren't) or that the courts have not grappled with the issues involved; see for example the case of GR -v- Wirral MBC in 2009 in which the Court of Appeal examined these very issues ( I acted for the claimant so declare an interest). In the Hoare decision in 2008 the House of Lords provided extensive guidance on this area and this has been developed in subsequent cases.

As Sedley LJ said in Ablett (2001) it is in the nature of child abuse that it produces fear and shame and these in turn produce silence, meaning that abuse allegations often only surface many years after the abuse has ceased. Doing justice between complainant and alleged abuser in these circumstances presents particular challenges for the legal system but in cases where the abuser has died before allegations surface and where there is no other corroborating material it is almost unheard of for successful claims to be brought.

Neil Addison said...

Thanks Richard for this thoughtful response. You may know more about specifics of the case than I do but the reports themselves refer to Father Baldwin as being dead and the reports I have read indicate that he was dead before the allegations were made. Whichever is true the fact is that the Defendant employer is having to defend a case in the absence of the alleged perpetrator and most of the potential witnesses.

I don't accept that the Courts have grappled with the issues in the cases you mention. For those who want to read them the GR case is [2009] EWCA Civ 827 (29 July 2009) http://www.bailii.org/ew/cases/EWCA/Civ/2009/827.html whilst Hoare is [2008] UKHL 6 (30 January 2008) http://www.bailii.org/uk/cases/UKHL/2008/6.html

Regarding claims brought after death I refer to Raggett v The Society of Jesus Trust 1929 for Roman Catholic Purposes & Anor [2009] EWHC 909 (QB) http://www.bailii.org/ew/cases/EWHC/QB/2009/909.html which was approved of by the Court of Appeal in [2010] EWCA Civ 1002 (27 August 2010) http://www.bailii.org/ew/cases/EWCA/Civ/2010/1002.html

In the High Court case it was alleged that the abuse occurred at the hands of a Father Spencer who died 31 December 2000 (para 47). The first allegation made by the Claimant was in 2005 (paras:53 - 57)

And before anyone feels that my concern in this case is directed solely at late allegations of Clerical abuse I would make the point that I first became concerned years ago when I represented a Teacher (State School) who was accused of Rape and Assault on a Girl 20 years previously with no evidence other than her allegation. He was acquitted but the experience destroyed him personally and professionally.

As for your reference to "abuse allegations often only surface many years after the abuse has ceased" this was the point used by Mrs Justice Swift in the Raggett case but it is in my view a completely circular point. In a Court evidence is required to substantiate an allegation but in the case of alleged Child Abuse this is being reversed and the allegation is being used to substantiate the evidence.

Richard Scorer said...

In Raggett, although Spencer had died by the time the allegation was made there was extensive corroborating evidence in the form of explicit letters written by Spencer and witness evidence from other pupils at the school at the material time who witnessed sexual misconduct by him. Without this corroboration the claim would undoubtedly have been dismissed on limitation grounds.

The implication of your position Neil seems to be that one should impose a fixed time limit on claims so that no claim can be brought in any circumstances after a fixed period; this of course was precisely the position which existed prior to the Hoare decision in relation to direct assault ( and indeed vicarious liability) claims and which caused so much injustice to Hoare's victims until the House of Lords changed the law. Some claims brought many years after the event will be weak, some will be meritorious- the court needs to have the ability to decide based on the merits of the case. Otherwise you simply reward the abuser who is most effective at silencing his victims - the more horrifying the abuse , the longer the victim may take to disclose and thus, a fixed unextendable limitation period rewards the perpetrator.

You refer to a case in which you acted in which a false allegation destroyed a man's career. That can undoubtedly happen in this area and we should always be alive to the risks of that particularly as child abuse cases can be emotive and the emotiveness of the subject matter can cloud a dispassionate analysis of he evidence. But it is also wrong to deny justice to genuine victims and to me the only answer can be to analyse individual cases on their merits rather than imposing blanket rules and this is, sensibly, what the courts seek to do.

Neil Addison said...

Yes I do believe that there should be a fixed time limit and that is what Parliament imposed in the Limitation Act. It is that Act which I said that the Courts are subverting.

As for Raggett the letter is described in the judgment and hardly qualifies as "explicit" and the "corroborating evidence" suffers from the same criticism that I have made about the evidence from the Claimant.

You refer to Justice but I do not believe that Justice in any meaningful sense is served by legal cases going back so many years.

Neil Addison said...

In addition re the case of Hoare. The Lady was raped in 1989 and Hoare was properly tried and convicted. he won £7 million in the National Lottery in 2004 which is hardly fair but that is after all the essence of a Lottery.

The Lady then sued for, in effect, a share of the Lottery winnings and you say it would have been unjust for her not to be allowed to sue him. However what about the other victims of Rape whose rapists do not win the Lottery is it not equally unjust that they go uncompensated simply because they happen to be unlucky enough to have been raped by someone who is not lucky enough to win the Lottery ?

I can understand why the Lords in Hoare felt they wanted to help her but "hard cases make bad law" and Hoare was a case of bad law which has had dangerous knock on effects

Anonymous said...

There must be many organisations who will be concerned about this strange judgement. Local authorities who place children into foster homes and adoption agencies (to name just two) will surely now be liable for criminal acts of those who have been given responsibility for the child. That sounds absurd just as this case is. Have I got this wrong?