E v English Province of Our Lady of Charity and another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Ward,Lord Justice Tomlinson,Lord Justice Davis
Judgment Date12 Jul 2012
Neutral Citation[2012] EWCA Civ 938
Docket NumberCase No: B3/2011/3210

[2012] EWCA Civ 938

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MR JUSTICE MACDUFF

HQ09 CX03679

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Ward

Lord Justice Tomlinson

and

Lord Justice Davis

Case No: B3/2011/3210

Between:
JGE
Respondent
and
The Trustees of the Portsmouth Roman Catholic Diocesan Trust
Appellant

Lord Faulks QC and Mr Nicholas Fewtrell (instructed by CCIA Services Ltd) for the appellant

Miss Elizabeth-Anne Gumbel QC and Mr Justin Levinson (instructed by Emmott Snell & Co) for the respondent

Hearing date: 17th May 2012

Lord Justice Ward
1

This appeal gives rise to a troublesome question of vicarious liability. The preliminary issue which falls for decision is "whether in law the second defendant [the Trustees of the Portsmouth Roman Catholic Diocesan Trust] may be vicariously liable for the alleged torts of Father Baldwin", a parish priest in the diocese. On 8th November 2011 Mr Justice MacDuff determined that issue in favour of the claimant.

The background

2

The claimant, who should remain anonymous, was born on 20th November 1963 so she is now 48 years of age. In May 1970 when she was 6 1/2 years old, she was placed in a children's home run by the nuns of a convent which was subject to the direction and control of the English Province of Our Lady of Charity, the first named defendant. There she remained for two years before being returned to her mother. The particulars of claim allege that whilst she was there she was beaten by the nun in charge of the home and she claims damages from the Sisters of Charity.

3

The particulars of claim also allege that the second defendants "operated and/or managed and/or were responsible for" a church in the diocese and that "at all material times Father Wilfred Baldwin was the parish priest at the church" and that "accordingly Father Baldwin was in the service of the second defendants and subject to their direction and control." It is said that Father Baldwin was regularly invited or permitted by the nuns to visit the children's home and did so in the course of his duties as a priest for the second defendants. Whilst a resident at the home the claimant was a parishioner of the church. It is then alleged that she was sexually abused and assaulted by Father Baldwin forcing the claimant to perform oral sex on him and masturbate him. Father Baldwin also allegedly performed sexual acts on the claimant and raped her many times, including on the day of her first holy communion when Father Baldwin raped the claimant in the robing room at the church after conducting the service. The particulars of claim allege that the second defendants entrusted the safe keeping and care of the claimant to Father Baldwin, delegated those tasks to him and undertook their care and safekeeping of the claimant through the services of Father Baldwin. But, and this is the important allegation for present purposes, it is also alleged that the sexual abuse and assaults perpetrated by Father Baldwin were committed in the course of or were closely connected with Father Baldwin's employment/duties and that, in the premises, the second defendants are vicariously liable for the sexual abuse by Father Baldwin and for the injury and damage which the claimant suffered as a result.

4

In fairness to the second defendants I should set out their defence. Although it is admitted that the parish church was a part of the Roman Catholic Diocese of Portsmouth, the second defendants deny that they ever managed, operated or were responsible for the church, the responsibility resting at all material times with the parish priest. It is denied, moreover, that Father Baldwin was at the material time the parish priest at the church for he did not assume that office until in or around September 1972, some months after the claimant had left the children's home. The second defendants say that at the material time Father Baldwin was in fact working as the Vocations Director in an altogether different part of the diocese. Their case is that:

"Neither they nor the incumbent bishop had any power to remove Father Baldwin from the priesthood, any power to move or remove Father Baldwin from his office against his will other than in accordance with the process set out in the Code of Canon Law (which requires proof of a grave cause under canon law) nor any power to give directions as to how that office was to be carried out as the requirements appertaining to any particular office are set out in the universal and particular canon law applying to the office concerned. The Second Defendants and/or the incumbent bishop could only issue guidelines for the whole Diocese through Episcopal decrees (usually promulgated through letters sent to all the clergy) and only exercised oversight or vigilance as to how universal and particular canon laws were being carried out in each parish and how far each priest was fulfilling responsibilities of office through periodic visitation of each parish (specified in canon law as being at least once every five years)."

Thus it is denied that Father Baldwin was in the service of the second defendants: he was at all times following his vocation and calling as a priest. It is denied that he abused or assaulted the claimant as alleged or at all. Relevantly to this appeal, it is denied that the second defendants are vicariously liable for the acts or omissions of priests in the diocese: a priest is the holder of an office not an employee of the second defendant.

5

The case was virtually ready for trial when a case management conference was fixed before Master Eyre. By then there was another case also managed by Master Eyre where the Roman Catholic Church was alleged to be responsible for the acts of one of its parish priests. Sadly for the Church there have been other occasions when the Church has had to answer for assaults committed by its clergy. Hitherto the Church's responsibility for the actions of its priests was challenged on the basis only that the acts were outside the scope of the "employment" of the priest. This case, and the other one that was before Master Eyre, are apparently the first in which the first stage of vicarious liability is challenged, namely whether the relationship between the priest and the Church (I use the word "Church" loosely) is such that the principle of vicarious liability may attach if the tortious acts of the priest were within the scope of the relationship. Lord Faulks QC wishes it to be plainly understood that in raising this new defence, the Church does not in any way at all condone any misconduct by their priests: on the contrary any sexual abuse is regarded as an abhorrence. Master Eyre considered this merited the trial of a preliminary issue and so he ordered in the terms set out at [1] above. The first defendant has played no part in the trial of that preliminary issue.

6

I am far from convinced that trying a preliminary issue is the best way to deal with questions of this sort. Since both stage 1 and stage 2 are fact sensitive and since, per Hughes LJ in Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & ors [2010] EWCA Civ 1106 at [37], "It is a judgment upon a synthesis of the two which is required", it would have been far better to have dealt with the two stages together. The nature of the relationship between the bishop and the priest must have some effect on the ambit of the acts which are within the scope of that relationship. There is on the pleadings the unresolved dispute as to whether Father Baldwin was the parish priest at the time the assaults were alleged to have been carried out, the defendants alleging he was deployed elsewhere in the parish, and although the parties are keen for this judgment to cover his position both as a priest and as the vocations director, I am reluctant to assume that they are in the same position. The evidence is silent as to the relationship between the bishop and his vocations director; we know little about what exactly the vocations director is appointed to do and for my part I confine myself to the terms of the issue as defined by the Master and by the pleadings. Others will have to decide if and when the question arises whether this judgment is capable of establishing that the bishop is "never, never" free of responsibility as opposed to "well then, hardly ever" (with apologies to the right good Captain of HMS Pinafore).

7

The Reverend Stephen Morgan gave evidence on the second defendants' behalf. He was the head of the department for Finance and Property at the Diocese of Portsmouth and the secretary to the Diocesan Trustees and Finance Council. He explained that the Diocese of Portsmouth (which is one of 22 in England and Wales) covers the counties of Berkshire, Hampshire, the Isle of Wight, part of Dorset and the Channel Islands. There are 96 parishes in the diocese, with about 400 souls in each parish. Bishop Derek Worlock, later the Archbishop of Liverpool, was the bishop at the material time. He died in February 1996. Father Baldwin is also deceased. The bishop customarily invited the priests he needed to move to a meeting at which he informed of them of their new appointment. The priest was able to decline to take up that appointment. When the moves were agreed the clergy would be informed but no formal letters of appointment were sent and there were no terms and conditions other than those imposed by the Church's canon law. An announcement would be made by the bishop to the whole diocese by way of a letter Ad Clerum. Priests did not receive a stipend or indeed any...

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29 cases
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    ...Ltd [2005] EWCA Civ 1151 which extended the concept of vicarious liability from single to dual responsibility. In E v English Province of Our Lady of Charity [2012] EWCA Civ 938 Ward LJ comprehensibly reviewed the legal authorities and academic writings on this issue and described the posit......
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  • Hickey v McGowan
    • Ireland
    • Supreme Court
    • 9 Febrero 2017
    ...that of Lord Phillips of Worth Matravers. He referred to a Court of Appeal decision in E v. English Province of Our Lady of Charity [2012] E.W.C.A. Civ. 938 which had been decided shortly after the Court of Appeal decision in the CCWS case. The leading judgment in the E case had been given ......
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    ...to examine those three decisions in some detail, along with their precursor, the decision of the Court of Appeal in E v English Province of Our Lady of Charity [2012] EWCA Civ 938; [2013] QB 722, some four months before the decision in the Christian Brothers case, as well as some later ca......
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1 firm's commentaries
  • UKSC: Vicarious liability, akin to employment and independent contractors
    • United Kingdom
    • LexBlog United Kingdom
    • 1 Abril 2020
    ...in detail at [10-23], together with their precursor, the Court of Appeal decision in E v English Province of Our Lady of Charity [2012] EWCA Civ 938. The cases make it clear that a person can be held vicariously liable for the acts of someone who is not their employee, provided the relation......
2 books & journal articles
  • Vicarious Liability and Non‐Delegable Duty for Child Abuse in Foster Care: A Step Too Far?
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    • The Modern Law Review Nbr. 79-5, September 2016
    • 1 Septiembre 2016
    ...LJ.14 [1985] 1 WLR 1150.15 This was introduced in JGE vTrustees of the Portsmouth Roman Catholic Diocesan Trust [2012]EWCA Civ 938; [2013] QB 722 at [18], [31] and [60] per War d L J ( JGE), and approved inVarious Claimants n 12 above at [47] and [60] per Lord Phillips.16 NA n 8 above at [1......
  • STATUTE AND THEORIES OF VICARIOUS LIABILITY.
    • Australia
    • 1 Diciembre 2019
    ...Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 ('Christian Brothers Case'); E v English Province of Our Lady of Charity [2013] QB 722. In response to Armes, see, eg, Stelios Tofaris, 'Vicarious Liability and Non-Delegable Duty for Child Abuse in Foster Care: A Step Too Far......

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