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Christian Brothers accused of tactics to deter and deny victims

The President of the Law Reform Commission and retired chief justice, Mr Justice Frank Clarke, has said it will recommend the law be changed to stop the use of a legal technicality by religious orders to deter and delay victims taking civil cases for compensation in the courts for historical child sexual abuse.

The Christian Brothers is accused of using a 2017 Supreme Court judgment to block child abuse victims successfully suing it in the courts. It is refusing to put forward someone to represent it as a defendant, leaving victims with no organisation to sue. Because religious orders are what is known as unincorporated associations, which cannot be sued because they are not a corporate body or person, the approach is perfectly legal, and is the current law as it stands.

However, while the courts cannot force an order to nominate a representative defendant, they have the choice to do so, as other unincorporated associations often do, but the Christian Brothers has chosen not to.

Mr Justice Frank Clarke speaking to Prime Time

It's one issue of a number the Law Reform Commission has put out for public consultation this spring before it makes recommendations to the Government for reforms. But already, its President, Mr Justice Clarke has told Prime Time that the Commission will be recommending changes to address that.

"The fact that you might be able to rely on technical defences doesn't mean you have to rely on them", he said. "I think Orders have choices to make about how they defend cases."

He also says the Commission will provide the Government with a roadmap to get at assets held in trust by Orders to cover damages awards to victims if that is a policy the Government decides to pursue.

Damien O'Farrell

One former Christian Brothers’ pupil, Damian O’Farrell, who got a conviction against his abuser and a settlement from the Order after a decade-long fight, says he now wants to speak for victims affected by the Orders’ legal tactic.

"I think it's cold, hard business for the Order", he said. "I think that's the way they look at it". But it was instead, "double abuse of victims", he said.

The Christian Brothers have over half-a-million former pupils in Ireland. It is embedded in Irish education.

Between 1975 and 1978, as a schoolboy, Damian O’Farrell experienced several incidents of abuse.

But he accepts he was 'one of the lucky ones'. He got a conviction of his chief abuser, and, after a decade long legal struggle, he got a settlement from the Order.

But out of 870 allegations of sexual abuse against Christian Brothers up to 2013, only a small number were prosecuted, just a dozen were convicted, and few victims went on to take a civil case for damages.

And now, there is a bigger obstacle in the path of victims — and it’s the law.

In 2017, the Supreme Court, ruling on another historical abuse case involving a different Catholic religious order, the Marists, held that because a religious order is not a corporate body, it cannot itself be sued and therefore, unless it agrees to put forward a defendant to represent it, victims must take a case against every Brother who was a member of the Order at the time of the abuse.

"It’s a very difficult situation, very unwieldy, but that is the law as it stands", said Cathy Smith S.C.

Christian Brothers Province Centre

Orders have a choice. They could nominate someone to represent them, but the Christian Brothers has chosen not to.

"The fact is, the law does not oblige the Order to nominate somebody. So, from a legal perspective, there's nothing incorrect about that", Cathy Smith said.

As a former Provincial leader, Superior General and trustee of the Christian Brothers, Edmund Garvey is a defendant in most of the 30 High Court historical abuse cases Prime Time looked at. He retired in June last year.

The text of a letter sent on 29 February, 2019, when he was still Leader of the Order’s European Province, shows the approach it is taking. It said Edmund Garvey had confirmed he had not authorised the use of his name as a nominee for the Christian Brothers.

It said: "Edmund Garvey has confirmed that he has not authorised the use of his name in the above proceedings as a nominee on behalf of the Christian Brothers", and it added that it was a matter for the Plaintiff – the victim – to identify and sue "the appropriate defendant or defendants".

The letter emerged in a High Court case. In that instance, Ms Justice Niamh Hyland ordered Brother Garvey, as Province Leader, to disclose the names and addresses of those who were members at the time of the alleged assaults. But that was just one case.

In a more recent case, where the High Court granted an order for the names, 162 Christian Brothers are now listed as co-defendants. These must all be separately served legal papers.

Brother Garvey’s response to queries from Prime Time was that he was no longer Provincial Leader, or a member of the Order’s congregational leadership team.

The current Provincial Leader, Brother David Gibson, issued a statement on behalf of the Order.

It said it was not in a position to comment on matters that are the subject of current and ongoing legal proceedings, but that it provides the names of relevant Brothers "where there is a lawful basis" to do so.

"This simply requires a court order, on foot of which the names are provided", it said.

To victims though, a court order is at significant cost of delay and of money.

Damian O’Farrell said that even with an order and the relevant names, "you have to serve summonses against all those and that could cost you up to €20,000".

Barrister, Cathy Smith, speaking to Prime Time

Barrister Cathy Smith said that people in those circumstances were "confronted with obstacles and difficulties that many other plaintiffs don't have to deal with", and that, in effect and in practice, "that creates huge obstacles for access to justice for victims of child sexual abuse."

The approach is not just a problem for victims though. It affects all Christian Brothers who were members at the time of the alleged abuse.

Under law, they can be vicariously liable through association, which means they could be held partly responsible.

Ms Smith said that because the Christian Brothers had not provided legal representation as a collective, it would be left to individual members of the Order to represent themselves or to engage a solicitor or barrister.

"Many of these individuals may be in nursing homes, elderly, may not be in a position to do so, so it's very difficult for them", she said.

Damian O’Farrell said victims are dismayed at the situation that puts them in, but it is in the Order’s gift to stop it happening. "Some of those Order members have been very good, very good servants to education in this country", he said. "Is this what they deserve? Is that the way his leadership team are treating him?"

There is another problem for victims under the current law. Of at least 30 listed High Court cases, most victims and their lawyers have themselves selected leadership figures from the Order as co-defendants. But following that 2017 Supreme Court judgment, under the Civil Liability Act, unless they sue all members at the time of the abuse, awards of damages could be reduced for every Brother they do not sue.

"Where there are a number of parties who may have been responsible there are implications for a plaintiff who does not sue all of those parties", Cathy Smith S.C. said. "In practice what it means is an award of compensation can be reduced significantly."

Damian O’Farrell says victims regard what is now happening in the courts as compounding their abuse.

The Supreme Court recognised the law was potentially "unjust" and pointed to the need for reform.

The Law Reform Commission has looked at it and its proposals are now out for public consultation.

Anything from GAA clubs to residents’ groups can be unincorporated associations, and the Commission looked at all of that.

It's President, retired Chief Justice, Frank Clarke explained: "If there's an insurance policy in place for someone who gets injured on a club premises, no one worries about the technicalities. It's agreed that Mr. X or Ms. Y can be sued and the insurance company would pay up if the case is successful."

"So, on a sort of consensual basis, those things are easily dealt with."

However, when unincorporated bodies, such as in the case of the Christian Brothers refuse to nominate a representative, the law is technically but definitively on their side.

"The problem is that these bodies are not regarded in law as a thing in themselves. We think of them as a thing. We hear of this Order or that Order or that club, and we think of it as an entity. But the law doesn't recognise that", Mr Justice Clarke said.

The Law Reform Commission believes there is a straightforward fix. "I think you have to have a law in place that forces a situation where there's a named defendant who will be responsible if the case is successful", the retired chief justice said. "And I'm sure we'll be making recommendations that will make that a lot clearer."

Part of those recommendations would be "requiring people to name someone who can be sued" he said.

He also has concerns that victims’ cases are being inordinately delayed. He said it was clearly "wholly unsatisfactory" that victims with good cases could not get redress within a reasonable period of time. "As the old phrase goes, justice delayed is justice denied."

He agreed that it is entirely open to the Orders to change their approach to the cases.

"The fact that the law allows you not to do something doesn't mean that you can't do it if you choose to do it", he said. "So, the fact that you might be able to rely on technical defences doesn't mean you have to rely on them." He said religious orders "have choices to make about how they defend cases."

"Obviously, if there's a real dispute about whether the abuse happened in the first place, people are entitled to defend themselves. But people don't have to rely on technicalities."

However, the Christian Brothers told Prime Time it continues to view mediation and non-adversarial voluntary agreements as the optimum means for victims to pursue.

But Damian O’Farrell says victims want the Brothers to act now to change its approach. He said what the Order was visiting on victims was "just unconscionable", and he directly appealed to it "to do the Christian thing."

The Law Reform Commission is also looking at religious orders’ assets — because even if other issues are sorted, victims believe property and assets of orders are beyond their reach, held in trusts.

The reason, Cathy Smith explained, is that because an order is not an incorporated association, it cannot hold property in its own right, so it must be held in trusts.

The President of the Law Reform Commission, Mr Justice Frank Clarke, said that the trustees of such trusts, "hold the property on trust for the body. But trust deeds can say all sorts of things about how the trust property is to be used."

The Commission has looked at Australia, where a change of law has made religious assets held in trusts available for court awards of compensation for historical child abuse.

Mr Justice Clarke said that "getting behind trust assets, and in particular charitable assets" was "a harder question that needed more consideration, and the question arose as to whether legal change should go so far as to allowing property left for specific charitable purposes, to be made available to pay awards in damages to victims.

"I think that's a policy question which ultimately the state would have to ask itself", he said. "But we will certainly set out a roadmap about how that can be done if that policy choice is made."

He suggested that constitutional rights were at issue when it came to victims’ cases. "Well, if you have been wronged, if you have been abused and you're finding it difficult to get a remedy in terms of actually collecting the compensation to which a court has found you to be entitled, then in my view, that is a problem with access to justice", he said.

For victims, while justice is delayed and denied, abuse lingers. Damian O’Farrell said that as the public hear the recent revelations concerning the Spiritans, they hear of ‘historical abuse’.

"That's a very unfortunate term, ‘historical abuse’", he said. "That's like something happened in the 70s and the 80s and that was the end of it. That's not the end of it at all. It's enduring."

"Abuse is enduring; it's all the time. It's all the time for these victims. It doesn't go away. It affects your family life, it affects your work life, it affects your potential. You’ll never, ever meet the person that you were going to be before it happens."

He has called on the Christian Brothers and other Orders not to wait for a court or a law to tell them to do the right thing.

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