Various Claimants v The Catholic Child Welfare Society and Others

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Kerr,Lord Carnwath,Lady Hale,Lord Phillips,Lord Wilson
Judgment Date21 November 2012
Neutral Citation[2012] UKSC 56

[2012] UKSC 56

THE SUPREME COURT

Michaelmas Term

On appeal from: [2010] EWCA Civ 1106

before

Lord Phillips

Lady Hale

Lord Kerr

Lord Wilson

Lord Carnwath

The Catholic Child Welfare Society and Others
(Appellants)
and
Various Claimants (FC) and the Institute of The Brothers of the Christian Schools and Others
(Respondents)

Appellant

George Leggatt QC

Nicholas Fewtrell

(Instructed by Hill Dickinson LLP)

Respondent

Patricia Leonard

(Instructed by Jordans Solicitors)

Respondent

Lord Faulks QC

Alastair Hammerton

(Instructed by Wedlake Bell LLP)

Heard on 23 and 24 July 2012

Lord Phillips (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath agree)

Introduction
1

In 1680, in the city of Rheims, Jean-Baptiste De La Salle founded an Institute known as the Brothers of the Christian Schools ("the Institute"). The members of the Institute are lay brothers of the Catholic Church. They are now to be found in many countries, including the United Kingdom. Their Rules, approved by Papal Bull in 1724, provided that

"they should make it their chief care to teach children, especially poor children, those things which pertain to a good and Christian life."

That has remained the mission of the Institute and the mission and "apostolate" of each brother. This appeal is concerned with the legal implications of acts of physical and sexual abuse committed, or alleged to have been committed, by brothers who were, or should have been, pursuing that mission at a residential institution at Market Weighton for boys in need of care called St William's ("the school")

2

The Institute is, in civil law, an unincorporated association of its members. It has, however, corporate features, including a hierarchy of authority. Steps have been taken on behalf of the Institute to create legal bodies that are capable of owning property and entering into legal relations in pursuance of the Institute's mission. Some of these are reflected in the identity of the individual defendants who have been described collectively as "the De La Salle Defendants". Expert evidence was given as to the nature and status of the Institute as a matter of canon law. These matters have not been explored before this Court. The preliminary issue with which this Court is concerned is

"whether the Institute is responsible in law for the alleged acts of sexual and physical abuse of children at St William's committed by its members."

To a large extent this preliminary issue has been canvassed as if the Institute were a corporate body having separate legal identity. I shall refer to "the Institute" as if this were the case, although it will be necessary in due course to grapple with the nature of the Institute.

3

This appeal requires this Court to review the application of the principles of vicarious liability in the context of sexual abuse of children. Unhappily this is today not an unusual context and it is one in which vicarious liability has received recent consideration not merely by other courts in the United Kingdom, but at the highest level in Canada and Australia.

4

The claims in this group action are brought by 170 men in respect of abuse to which they allege that they were subjected at St William's between 1958 and 1992. The claims are brought against two groups of defendants. The first group consists of "the Middlesbrough Defendants". They took over the management of the school in 1973 and inherited, under statute, the liabilities of the managers of the school before that date. They, or those they represent, concluded contracts of employment with the brother teachers. They were held at first instance to be vicariously liable for acts of abuse by those teachers and no longer challenge that liability. By this appeal they seek, however, to challenge the judge's finding, confirmed by the Court of Appeal, that the second group of defendants, the De La Salle Defendants, were not also vicariously liable for the acts of abuse committed by members of the Institute. The claimants are content to look to the Middlesbrough Defendants for their relief and anxious not to risk liability in respect of the costs of the appeal to this Court. Accordingly they have played no part in the appeal.

5

This case is almost a carbon copy of McE v De La Salle Brothers [2007] CSIH 27; 2007 SC 566, in which a similar preliminary issue was tried. In that case a single pursuer claimed damages in respect of physical abuse to which he had been subjected by Brother Benedict, a De La Salle brother, while at a school in Scotland. The claim was however a test case as there were pending some 150 additional cases where abuse was alleged at the hands of brothers at that school. The Court of Session held that there was no basis upon which the allegation of vicarious liability on the part of the Institute could succeed and the claim was accordingly dismissed.

The facts
6

No significant challenge has been made in respect of the facts found by the judge of first instance, His Honour Judge Hawkesworth QC, sitting as a judge of the High Court and these have formed the basis of the Statement of Agreed Facts and Issues.

The Institute
7

The head of the Institute is the Superior General in Rome, elected by the General Chapter of the brothers, which is itself made up of elected representatives of all brothers. For the purposes of administration the Institute is divided into districts called Provinces, each headed by a "Provincial". At different times there has been a London Province, an English Province and a Great Britain Province. Within a province the brothers live in communities, each headed by a Director.

8

The brothers are bound together by lifelong vows of chastity, poverty and obedience and by detailed and very strict rules of conduct ("the Rule"). The Rule has its origin in the rules approved by the Pope in 1724, but these were amended from time to time. During the period to which this action relates the relevant rules were the Common Rules of 1947. The vow of obedience carries the obligation to obey the superiors of the Institute, including the Provincial and the Director of the community. Each brother undertakes to "go wherever I may be sent and to do whatever I may be assigned by the [Institute] or its superior"'

9

The Rule is highly particular and governs all aspects of the life and conduct of a brother including such matters as the taking of communal meals and other required communal activities. It contains provisions governing how the children taught are to be treated, including a chapter on correction or punishment which prohibits touching a child or corporal punishment. One chapter deals with chastity and this includes a provision that "They shall not touch their pupils through playfulness or familiarity, and they shall never touch them on the face". There is a requirement to advertise to each other any faults of which they are conscious and extreme reserve is required, for example in speaking to women. Pursuant to the vow of poverty, any brother who is employed to teach by an outside body has to hand over all his earnings to the Institute. In England this duty is performed by entering into a deed of covenant to pay the earnings to a charitable trust. The pleadings disclose that there is a 1947 Trust relating to property held in connection with first the London province and subsequently the Great Britain province, and a 1953 trust relating to property held in connection with the England province. Judge Hawkesworth at paras 30 and 31 recorded that Brother Thomas gave evidence that "the DLS trust had substantial funds derived from the sale of its properties and from the covenanted funds of the brothers employed in education at St William's and elsewhere". The Institute provides the brothers with the "wherewithal to live" and looks after them after their retirement.

10

The Institute owns schools, presumably through its charitable trusts. Where it does so the teaching is provided by a community of brothers who will usually live within the school. The Director of the community almost always acts as the headmaster of the school. However the Institute never owned St William's.

St William's
11

In paras 25 to 34 of the leading judgment in the Court of Appeal [2010] EWCA Civ 1106 Hughes LJ has set out the history of St William's, as found by Judge Hawkesworth. It was founded in or about 1865 by a group of Catholic benefactors who placed the school in the ownership of a charitable trust. It was managed by a group of local people as a reformatory school for boys. They entrusted the running of the school to a religious congregation called the Rosminians. They did not prove satisfactory and, in 1912 the managers replaced them with the Institute, under a formal agreement made with the Superior General of the Institute. This agreement effectively delegated the running of the school to the Institute. Thereafter, up to 1933, the school was entirely staffed by brothers of the Institute. These were members of a community whose bedrooms and refectory were within the school grounds. Most of the brothers in the community worked in the school, but there were some who did not. The Director of the community was almost always the headmaster of the school.

12

In 1933 the regime changed pursuant to provisions of the Children and Young Persons Act 1933. St William's became an approved school, for the detention of boys up to the age of 17 who had been convicted of custodial offences. Under the 1933 Act, and the Approved School Rules 1933 made under it, the staff became the direct statutory responsibility of the managers. All teaching staff had to be employed by them under written contracts and the headmaster was made responsible to the managers for the efficient conduct of the school. The managers at this time, as described by the judge, at para 25, were "a self-perpetuating group of like-minded people,...

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