On Monday the Telegraph reported that the husband of a woman who earlier this year allegedly stayed for “at least three nights” at the house of Kieran Conry, until recently Roman Catholic Bishop of Arundel and Brighton, is threatening to sue the Roman Catholic Church. Bishop Conry stood down at the weekend after admitting he had broken his vows of celibacy; and the anonymous husband, who has filed for divorce, is claiming that the bishop’s penchant for women was well-known among the Roman Catholic hierarchy and that its failure to take action led directly to the break-up of his marriage. His solicitor, Ms Clare Kirby of Kirby and Co, said that he was considering an action against the Church, although the case was “in its infancy”:
“My client was trying to deal with this confidentially and went to the bishop for help in reconciling his marriage after he became aware that the bishop was the third person in his marriage. I first wrote to the bishop on behalf of my client some months ago, asking him to respond, but heard nothing back. I wrote again, but all we got was a menacing letter from the bishop’s lawyers indicating the possibility of defamation proceedings.”
Alienation of affection is no longer a tort available to litigants in England and Wales. The common law action for damages for the tort of criminal conversation (aka “crim con”) was abolished in 1857 but survived in the divorce jurisdiction as a petition for damages for adultery per se and as part of the claim in a petition for dissolution on the ground of adultery – then that, too, was abolished by the Law Reform (Miscellaneous Provisions) Act 1970. But even if the wronged husband has a good cause of action against Bishop Conry himself (and Conry denies that the relationship was a sexual one), it is very difficult to see what cause of action he might have against the Roman Catholic Church corporately. Did the Church have some kind of amorphous “duty of care” towards the anonymous husband which it failed through negligence to discharge? And if it did not, what was the civil wrong?
There have been a number of recent cases featuring vicarious liability for the activities of errant clergy and religious: most recently Catholic Child Welfare Society & Ors v Various Claimants and The Institute of the Brothers of the Christian Schools  UKSC 56, in which the Supreme Court held that it was “fair, just and reasonable” that the Institute share vicarious liability for the abuse committed by some of its brothers. But the recent cases have been about vicarious liability in tort for very serious criminality – historic sexual and physical abuse – and it’s a far cry from that scenario to vicarious liability for the behaviour of one consenting adult in getting into bed with another consenting adult even if one of them happens to be married to someone else at the material time.
In Joel v Morison  EWHC KB J39 the basic rule about vicarious liability was expressed like this at para 5:
“The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable.”
So (not being litigation specialists, still less family lawyers) we can’t help wondering precisely what tort the Roman Catholic Church in England and Wales might be thought to have committed or even be vicariously liable for. We don’t know the full facts; but from what we do know, Bishop Conry appears to have been very much “on a frolic of his own”. It’s a genuine question: answers, please, in the comments box rather than on a postcard…
For the wider, non-legal, implications of Bishop Conry’s resignation on the Church’s attitude to clerical celibacy see this post by Abigail Frymann Rouch, Online Editor of The Tablet and for a theological reflection see Dame Catherine Wybourne’s post here.
“The bishop’s penchant for women was well-known among the Roman Catholic hierarchy.”
I would have thought rather a lot – very possibly even a majority – of Roman Catholic Bishops have a penchant for women. They just are advised not to act on it.
“My client was trying to deal with this confidentially”
It didn’t work. That leaves me wondering whether any claim or counterclaim pleaded will assert that either party owed the other a duty of care also to prevent news spreading of – er – what she did all over the bishoprick but allegedly failed to discharge it?
A case like this but with a more junior cleric as the miscreant could be said to put the vicar in vicarious liability.
OK, since you asked, this is how I would do it… (English/Welsh law)
In order to sue the employer under vicarious liability, you first have to prove that there is a tort committed by the employee.
In order for there to be a tort, there has to be a duty of care between the defendant and the claimant, and a (qualifying) harm to the claimant, which was due to a breach of duty on the part of the defendant. The harm must be reasonably foreseeable in the circumstances, and there must be no complete defence.
Duty of care: presumably you can argue that there is one between bishop and a member of the congregation in his diocese?
Harm: this is a difficult one. In England & Wales, you can only claim for mental harm alone if it’s parasitic on another qualifying claim (e.g. personal injury) or it’s a diagnosed mental/psychiatric/psychological condition (e.g. depression, PTSD). You can’t claim just because you’re upset or angry. Pure economic loss usually isn’t compensatable either, except in the setting of financial relationships.
Breach of duty: there would have to be proof that the bishop had breached his duty. What if he and the wife claim that they were playing chess or discussing philosophy, or sub-atomic particle physics?
Assuming you can prove that they were, indeed, doing the horizontal tango, I would argue that moving the bishop’s alleged activities into the realm of tort depends entirely on the fact that he is a priest of the Roman Catholic church. If he was just some bloke, it wouldn’t be a problem – it’s not a tort for some bloke to have sex with another man’s wife, however embarrassing it might be for the husband.
On the other hand, part of the bishop’s conditions of service, as it were, is that he doesn’t have sex with anyone – male or female. This sets him apart from the general run of blokes.
In White v Bluett, ‘not complaining’ was not judged to be good consideration in a contract, but one could argue that ‘not complaining’ is not quantifiable, because how can you differentiate between a complaint and a justified remonstrance or enquiry?
On the other hand, in Hamer v Sidway (American) not smoking or drinking or swearing or gambling was regarded as good consideration in contract. Following this (since we don’t have a comparable English case, having distinguished White and Bluett), can we argue that ‘not having sexual intercourse’ (being quantifiable) is a qualifying activity, that the bishop had a duty – established by the rules of the RC church – to his parishioners not to engage in?
Assuming that you can prove a tort on the part of the bishop, we know that employers can be liable for torts and crimes committed by their employees either within the course of their jobs, or under circumstances where their job was significantly connected to the tort/crime. I think that if you manage to prove that what the bishop did was a tort, then vicarious liability is a lesser problem. Having sex is not usually a job-related activity, but in terms of Roman Catholic bishops, NOT having sex is part of the job description. Hence, if a Roman Catholic bishop is causes harm by having sex, you quite possibly could manage to make the RC church vicariously liable.
So, in conclusion, your problem may well be in the area of whether or not you can prove a qualifying harm. If you can, then you could possibly tapdance your way through all the rest.
Given that I’m not a highly-paid specialist in the area of tort (or religion), what do you think?
I think (not being a highly-paid specialist in the area of tort (or religion) either!) that that’s a pretty good try – but I’m not convinced that it’s possible to prove a qualifying harm in this particular case. In the recent cases relating to Roman Catholic institutions the pleas have related to vicarious liability for various criminal acts by people who might be regarded as the servants or agents of the Church. But consensual sex between two adults, neither of whom lacks capacity, isn’t criminal.
I suppose, deep down, I’m not sure to what extent a bishop has a justiciable secular duty of care to persons in his diocese – whatever the position may be under Roman Catholic canon law. And even if he does have one, I’m not sure how far it goes: was it a duty of care only not to have sex with the woman (if indeed he did so, which he denies) or did it extend as far as the husband?
“On the other hand, part of the bishop’s conditions of service, as it were, is that he doesn’t have sex with anyone – male or female”
It depends what you mean by “conditions of service”.
If you are referring specifically to the vows he took on being ordained priest, then this is not the case.
R.C. secular priests do not take a vow of sexual continence as such, they take a vow not to marry (i.e. celibacy in the strict sense, notwithstanding the popular use of the term to refer to sexual continence).
Of course, since the teaching of the R.C. Church is that sexual relations outside marriage are sinful, the bishop, as a consequence of this vow, cannot have sexual relations with another person without commiting a sin, and obviously a bishop (as indeed any Christian, ordained or lay) is obliged to refrain from sin.
I suppose one might argue that the duty of a bishop, and the promises made by him at his consecration, to defend the faith, etc. place a special obligation on him to refrain from sinning, but this has nothing to do with his priestly vow of celibacy. He is in precisely the same position as an Anglican bishop who commits adultery, and who will have made similar promises at his consecration. Yet the idea of anyone suing the Church of England over adultery committed by one of its bishops is manifestly absurd.
Thanks are due to Jen, for her scholarly observations on the legal ramifications of what allegedly took place vis-a-vis the claimant’s wife. It appears that she successfully removed the bishop’s breaches, but left him bound, because he had contracted, not to have sex with his body’s member (or with anybody).
The question is, will it stand up in court?
“What if he and the wife claim that they were playing chess” [Jen]
The divorce petition cites three nights spent, with only one bishop.
Chess would have required four knights, and four bishops, two of them white and two of them black. She might be out of the frying pan and into the fire, on that basis.
Not to mention any pawn that might have needed to be watched. Or comments such as, “you’ll be able to take me if I go there”, or, “Are you going to make a move?”, or, “You cannot go there. You’re exposing. Check.”
That’s enough doubtfully-tasteful chess references for one post – Ed.
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