Trustees, clergy and vicarious liability

The law of England and Wales regards the Roman Catholic Church as an unincorporated association with no legal personality; therefore, each diocese usually establishes a charitable trust to enable it to own and manage property and otherwise conduct its financial affairs in accordance with secular law. In JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012) the defendant Trust was just such a charity.

From 1970 the claimant, then aged 6½, spent two years in a children’s home run by the Sisters of Charity. She alleged that she was beaten by the nun in charge of the home and claimed damages from the Sisters of Charity. She also claimed that she was raped by a priest of the Diocese of Portsmouth, one Father Baldwin – now dead. She contended that Baldwin was in the service of the Diocese and subject to its direction and control and, therefore, that the Diocese was vicariously liable for the injury and damage that she suffered.

The Diocese denied that it had ever managed, operated or been responsible for the church and said that, in any case, Baldwin had not become its parish priest until after the claimant had left the children’s home. In short, neither it nor the Bishop had had any power to remove Baldwin from the priesthood or to move or remove him from office against his will other than in accordance with due process under the Code of Canon Law (which required proof of a “grave cause”). Nor could either of them issue individual directions, because the requirements appertaining to any particular office were set out in the canon law applying to the office concerned. A bishop could only issue guidelines for his diocese as a whole:  individual oversight was exercised through quinquennial parish visitations. In canon law, each parish was a separate legal entity: any property belonged to the parish rather than the diocese and the position of parish priest was analogous to a corporation sole.

Clergy were stationed in parishes by the bishop by mutual agreement. No formal letters of appointment were issued and there were no terms and conditions other than those imposed by canon law. Priests received neither stipend nor financial support from the diocese: parishes supported their own parish priests – almost exclusively through charitable donations collected at Mass – and for tax purposes priests had at all material times been regarded as office holders not been subject to the PAYE regime for income tax.  Mgr Gordon Read told the Court that

“The office of parish priest is in the gift of the bishop and is not something that is advertised or can be applied for. The priest is not free to choose where to go but must accept the direction he is given. On the other hand, once he has been appointed he has great freedom in how he carries out the responsibilities attached to his office” (para 10).

The central question for decision in JGE was whether or not the Bishop employed Baldwin and, if not, whether their relationship was akin to employment.  Disputes about vicarious liability centred on two questions: whether there was a true employer/employee relationship and whether the tortfeasor was acting within the scope of his employment or whether he was on “a frolic of his own” (para. 21). Though it was common ground that a priest was not an employee, an examination of the recent cases on clergy employment indicated that in deciding whether or not there was a contract of service between a minister of religion and his Church:

  • each case had to be judged on its own particular facts;
  • there was no general presumption of a lack of intent to create legal relations between the clergy and their church;
  • a factor in determining whether the parties must be taken to have intended to enter into a legally binding contract would be whether or not there was a religious belief held by the Church that there was no enforceable contractual relationship; and
  • it did not follow that the holder of an ecclesiastical office could not be employed under a contract of service.

In the present case, Ward LJ was completely satisfied that was no contract of service: “indeed there is no contract at all” (para 30) and therefore Baldwin had been neither the servant nor the employee of the Bishop. However, Viasystems (Tyneside) v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, [2006] QB 510 (which involved liability for the tortious acts of an “employee” bound in contract to one employer but “loaned” by that employer to another for the purpose of carrying out a particular piece of work)

“… had gone a long way to acknowledge that, for the purposes of establishing vicarious liability, the tortfeasor did not have to be an old-fashioned employee … The actual contract of employment was treated as no more than an irrelevant distraction. Function triumphed over form” (para 60).

In the opinion of Ward LJ the decision of the Court of Appeal in Viasystems had extended the conventional boundaries of vicarious liability in cases akin to employment: therefore, the appeal should be dismissed.

Also dismissing the appeal, Davis LJ said that it was a difficult case and he could see the force of the arguments both ways; however, he concluded that:

“… the time has come emphatically to announce that the law of vicarious liability has moved beyond the confines of a contract of service. The test I set myself is whether the relationship of the bishop and Father Baldwin is so close in character to one of employer/employee that it is just and fair to hold the employer vicariously liable” (para 73).

On that basis, the relationship between a Roman Catholic diocesan and a parish priest could be regarded as sufficiently akin to “employment” as properly and fairly to give rise to vicarious liability. The fact that the Bishop was not, and could not be, Baldwin’s employer in law was not decisive.

Tomlinson LJ dissented and would have allowed the appeal.

Leave to appeal to the Supreme Court was refused. In an Addendum to the three judgments, Ward LJ explained that, rather than deal with a case decided as a preliminary issue, the Supreme Court might prefer to deal with a judgment at the conclusion of a fully-contested trial. Moreover, the SC was to hear Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & Ors on 23 July and would be better able than the CA to judge whether JGE raised other issues that it might wish to hear.

Comment: In a subsequent press statement, the Diocese of Portsmouth said that, in view of the fact that the case posed “complex questions of law of real public importance” it was seeking advice on a potential appeal to the Supreme Court. Said the Diocese:

“This case is not, and has never been, about seeking to avoid or delay the payment of compensation to victims with valid claims. The Diocese has for years been offering support to clerical abuse victims, and the law rightly allows victims to sue for damages on grounds of negligence, or, of course, to seek redress from the actual perpetrators of the abuse.

This case is about fundamental legal principles involving the very nature of civil society and religious freedom. It would be disastrous if, in seeking to provide redress for victims of harm, the law put intolerable new pressures on the voluntary sector. This judgment shows further thought and scrutiny are required before clarity in this regard can be established”.

For my part, I am unconvinced that, strictly speaking, the judgment engages religious freedom in any wide or fundamental sense – but it certainly has major implications for voluntary organisations generally, not just for faith-communities or for the Roman Catholic Church in particular. Given that, following Viasystems, Ward and Davis LJJ took a conscious decision to widen the reach of vicarious liability, charities generally are going to have to be much more careful about whom they appoint as volunteers – let alone as paid staff – and how they supervise them. Even regular CRB checks may not be enough – and, besides, vicarious liability is not just about sexual or physical abuse.

The outcome of the hearing on 23 July may give us further guidance; but in my opinion, for what it is worth, it is to be hoped that the Supreme Court grants leave to appeal in JGE and considers the whole matter in the round – a view shared by Rosalind English on the UK Human Rights Blog.

****************************

Leave to appeal to the Supreme Court was subsequently refused. Neil Addison commented that  one of the probable reasons for the refusal was the fact that the appeal dealt with a preliminary issue. Ward LJ had said  in the Court of Appeal that he was “… far from convinced that trying a preliminary issue is the best way to deal with questions of this sort”. 

Leave a Reply

Your email address will not be published.