Hugh Kennedy Against (first) The Right Reverend Paul Bonnici, (second) The Right Reverend James Warren Cuthbert Madden And (third) Denis Alexander
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2021] CSOH 106 |
| Date | 20 October 2021 |
| Docket Number | A121/20 |
| Court | Court of Session |
| Published date | 20 October 2021 |
OUTER HOUSE, COURT OF SESSION
[2021] CSOH 106
A121/20
OPINION OF LADY WOLFFE
In the cause
HUGH KENNEDY
Pursuer
against
(FIRST) THE RIGHT REVEREND PAUL BONNICI
(SECOND) THE RIGHT REVEREND JAMES WARREN CUTHBERT MADDEN
(THIRD) DENIS ALEXANDER
Defenders
Pursuer: E Mackenzie QC, Gardiner; Digby Brown LLP
Defenders: N Mackenzie QC, MacLeod; Keoghs LLP
20 October 2021
Introduction
The issues at debate
[1] The pursuer brings this action for personal injury as a consequence of alleged sexual
and physical abuse said to have been perpetrated against him while he was a boarder in the
mid-1970s at the Fort Augustus Boarding School (“the School”) run by a Benedictine
Community (“the Community”). The School was closed nearly 30 years ago; the trust
associated with the Community’s Abbey was (on the defender’s averments) wound up
2
around a decade ago, and the then trustees may have been discharged. The trustees at the
material time are all dead. However, the pursuer avers that there was insurance taken out
and which, if a claim were made under it, would respond by indemnifying the trustees in
respect of the pursuer’s claim. He has therefore raised this action, calling two surviving
trustees for the purposes of meeting his claim from the trust estate comprised of the
(presumed) right of indemnity under that insurance.
The background
The pursuer
[2] The pursuer in this action seeks damages of £5,000,000 for alleged physical and
sexual abuse while he was a boarder from about 1975, a year after he joined the School, and
which continued for a time after he left the School in around 1977. On the pursuer’s
averments the principal abuser was the third defender, a monk and teacher at the School,
but he alleges that two lay teachers, Taff Owen and the pursuer’s PE and maths teacher,
Hamish McDonald, also subjected him to abuse. The first and second defenders aver that
Mr Owen and Mr McDonald are both dead.
The Abbey, the Trust Deed, the Trust and the Trustees
[3] A Benedictine community was established at Fort Augustus Abbey (“the
Community” and “the Abbey”, respectively) in about the 1920s. Initially the Community
was an unincorporated association but a trust deed relating to the Abbey and the
Community was registered in the Books of Council and Session in about May 1936
establishing a trust (“the Trust Deed” and “the Trust”, respectively). It was explained in
submissions that the Community was autonomous, in the sense that, while it was a member
3
of the Congregation of the Benedictines in England (“the English Congregation”), the
English Congregation was not responsible for the Community, albeit it may be a repository
for some papers relating to the School or the Community. The Community ran the School,
which was fee-paying, as a business. The pursuer avers that members of the Community
were appointed as trustees under the Trust Deed; that, consistent with the broad purposes of
the Trust Deed, they employed teachers at the School; and that the trustees “exercised
control over” the running of the School such as to render them vicariously liable for the
delictual or tortious acts of the teachers, including the third defender and the lay teachers.
(It is disputed that the express terms of the Trust Deed govern the operation of the School.)
The pursuer identifies the four individuals who were the trustees under the Trust Deed in
post at the time he was at the School (“the Serving Trustees”). All of these individuals are
dead and are unlikely to have issue. Successor trustees were appointed from time to time,
including the first and second defenders.
The defenders: the trustee defenders and the third defender
[4] The first defender and the second defender were assumed as trustees under the Trust
Deed. They are both called as defenders in their capacity as trustees (“the trustee
defenders”), not in their individual capacities. The second defender is averred to be the last
known surviving trustee whose whereabouts are known. On the trustee defenders’
averments, the School was closed in around 1993; the Abbey closed in 1999 and the Trust
was wound up in around 2010 or 2011. The pursuer does not admit that the Trust has been
wound up and it calls upon the trustee defenders to lodge the relative deed. On the first
defender’s averments, he was born in 1970 and was a trustee under the Trust Deed for only
one year, from late 1999 to late 2000. The second defender was assumed as a trustee in late
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