The trust that now owns the schools formerly owned by the Christian Brothers is being included as a defendant in cases where men are suing the congregation for historical child abuse, High Court records show.
The Christian Brothers has adopted a strategy in recent years that has made it difficult and expensive for plaintiffs to progress cases seeking vicarious damages for historical sex abuse. No other congregation pursues such a strategy.
Some legal firms have decided that as part of their response to this their clients should include the trust that owns the congregation’s former schools as defendants in their cases, a number of solicitors have told The Irish Times.
The Edmund Rice Schools Trust was established in 2008 and since then ownership of 96 primary and post primary schools has been transferred to it by the Christian Brothers. The latest financial results for the trust show that in the year to August 2023 it received a donation of €291,669 from the congregation to support its operations and had property at year’s end worth €133 million.
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It also received a donation from the congregation of playing fields worth €2 million which, according to the accounts, “are to be used for the benefit of the Edmund Rice tradition”. Edmund Rice founded the Christian Brothers in the early 1800s.
The trust, in a statement, said that following the taking of advice it was not in a position to confirm the number of historical abuse cases in which it has been named as a defendant.
“The Edmund Rice Schools Trust unequivocally condemns any form of child abuse and is committed to the highest standards of child protection; we encourage anybody who has a child protection complaint or concern to report it to the relevant authorities,” it said.
A solicitor with a practice outside Dublin who is involved in litigation with the Christian Brothers on behalf of several men seeking damages for historical child sex abuse said the circumstances of each case dictated whether the trust was included as a defendant. In all cases where the trust had been added as a defendant, he said, the abuse occurred prior to the establishment of the trust.
“I have a bee in my bonnet about these cases, because of the manner in which [the Christian Brothers] are dealing with them,” the solicitor, who did not wish to be named, said. “They refuse to co-operate. I’ve never experienced it anywhere other than with the Christian Brothers.”
The Christian Brothers, like most religious congregations, is an unincorporated association, meaning it does not exist as a distinct legal entity that can be sued. Most religious congregations put forward a nominee who can be sued on its behalf for the purposes of litigation, but the Christian Brothers has adopted a policy of not doing so.
The Law Reform Commission is working on a report on unincorporated associations and litigation, part of which is to suggest a potential “roadmap” for politicians should it be decided to change the law to allow litigants access to property placed in trust by such entities.
Because of the strategy adopted by the Christian Brothers, plaintiffs have to sue all the living members of the congregation who were members at the time of the alleged abuse. In order to secure the names of the people it must sue, the plaintiffs have to go to court to get an order instructing the congregation to provide the names of the members alive at the time of the alleged abuse, and then have to serve papers on each of these men individually.
In one case that has come to the attention of The Irish Times, a man who is suing the congregation for historical child sex abuse has had to move solicitors as the firm that was initially acting for him has accumulated significant legal costs pursuing the action and wants to be paid. However, the man cannot afford to pay the firm and so moved to a new legal firm.
Late year Ken Grace secured a public apology from the Christian Brothers and an undisclosed settlement, after initiating proceedings in 2019 seeking vicarious damages from the congregation arising from the abuse he suffered as a student in Westland Row secondary school in the 1980s. The abuser, Paul Hendrick, a former principal at the school, is in jail having pleaded guilty to abusing Mr Grace.
Mr Grace had to sue about 120 brothers individually, including the current Provincial of the European Province, Br Gibson, and his predecessor, Br Edmund Garvey, in order to progress his case.
In November, after most of the brothers who had been served with papers had been the subject of judgments in default after failing to make an appearance, and following multiple appearances before the court where legal representatives of Brs Gibson and Garvey said they were only before the court in their personal capacities, counsel for the two brothers said they were entering no defence and that the solicitors who were acting for them, Frank Buttimer and Co, were willing to go into mediation on behalf of all the defendants in an attempt to settle the matter.
The following month, Mr Justice Tony O’Connor was told the matter had been settled and costs could be awarded against the two brothers. An apology on behalf of the congregation was then read to the court.
During one sitting, counsel for Mr Grace said the strategy being pursued by the brothers was designed to put people off pursuing such cases. “What a horrible agenda, what a distasteful, despicable agenda,” he said.
In other cases before the High Court, the Christian Brothers are pursuing the same strategy as that pursued with Mr Grace. These include cases where the men seeking damages are doing so in cases of abuse where the perpetrator of the abuse has been jailed by the criminal courts for the crime.
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