The High Court has refused an application to remove John Burke as a defendant in a personal injury claim alleging sexual abuse at CBS Crumlin school in Dublin between 1976 and 1978. The decision does not determine whether the alleged abuse occurred or whether Mr Burke is liable.
The plaintiff alleges that Brother Bowyers, a teacher who is now deceased, abused him while he was a pupil. The amended summons describes Mr Burke as the Christian Brothers’ agreed nominated representative and as responsible for the school’s supervision and for Brother Bowyers’ acts. The plaintiff also claims against the Minister for Education and Skills, Ireland and the Attorney General. The Congregation of Christian Brothers and Edmund Garvey, identified in the judgment as its Province Leader, were later joined as defendants.
Mr Burke sought to be removed, saying he had not agreed to represent the Congregation, had never been nominated by it and had no personal involvement with the school or teaching there. The plaintiff’s solicitor said the firm had been told during a December 2017 call to the Congregation’s European Province Centre that Mr Burke was the appropriate legal nominee. The judge said the dispute about the call did not need to be resolved: even accepting the plaintiff’s account, it did not establish that Mr Burke or the Congregation had agreed to his nomination.
Justice Hyland found that Mr Burke was not an agreed representative of the Congregation. The plaintiff had also not identified the members he was said to represent. The judge noted that there was considerable doubt about whether a person could represent a religious order in a tort claim in this way.
However, the court considered the Supreme Court’s decision in Hickey v McGowan and Cosgrove. That decision established that members of an unincorporated religious order could, in principle, be vicariously liable for abuse by another member, subject to the circumstances and membership at the time. Mr Burke acknowledged that he was a member of the Christian Brothers, and no evidence had been offered that he was not a member when the alleged abuse occurred. The trial judge would have to decide that question if liability were pursued.
The court concluded that Mr Burke could be a necessary defendant to allow the case to be fully decided and refused the application to remove him. It warned that the plaintiff risked being refused relief against Mr Burke if he remained sued only in the representative capacity the court had rejected. The judgment did not rule on whether any defendant was sufficient to establish vicarious liability, and suggested the plaintiff could consider seeking agreement on a nominated representative or joining other appropriate members.