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.