Various Claimants v The Catholic Child Welfare Society and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Hughes,Lord Justice Tomlinson,Lord Justice Pill
Judgment Date26 Oct 2010
Neutral Citation[2010] EWCA Civ 1106
Docket NumberCase No: B3/2010/0198 B3/2010/0218

[2010] EWCA Civ 1106

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM: QUEEN'S BENCH DIVISION

DEWSBURY DISTRICT REGISTRY

His Honour Judge Hawkesworth QC

Before: Lord Justice Pill

Lord Justice Hughes

and

Lord Justice Tomlinson

Case No: B3/2010/0198 B3/2010/0218

5DW01675

Between
Various Claimants
Claimants/1 st Appellants
and
The Catholic Child Welfare Society and Others
Defendants/2 nd Appellants
and
The Institute of the Brothers of the Christian Schools and Others
Defendant/Respondent

Ms Rosalind Coe QC and Ms Patricia Leonard (instructed by Jordans) for the Various Claimants

Mr George Leggatt QC and Mr Nicholas Fewtrell (instructed by Hill Dickinson) for the C.C.W. S. Defendants

Mr Edward Faulks QC and Mr Alastair Hammerton (instructed by Cumberland Ellis) for the Institute.

Hearing dates: 12 th, 13 th and 14 th July 2010

Lord Justice Hughes

Lord Justice Hughes:

1

A large number of claimants assert that they were physically and/or sexually abused by staff at the school which they attended. The school had begun life in the nineteenth century as a reformatory for delinquent boys founded by charitably minded local Catholics. At the times when abuse is alleged, it was constituted either as an Approved School or an Assisted Community Home, under the legislation current for the time being. In each of those constitutions it had a board of managers, recognised by the legislation. From a time well before that, and throughout the relevant periods, the Headmaster and some but by no means all teachers were supplied by the Institute of the Brothers of the Christian Schools (also known as the De La Salle Institute) (“the Institute”), which was at all material times an unincorporated association. The school closed in 1994.

2

Plainly anyone proved to have been a tortfeasor is himself liable to the relevant claimant. The judge was asked, however, to rule upon preliminary issues as to which body or bodies might additionally bear liability (subject to limitation or any other defence) if the abuse alleged is established.

3

The liability which he was asked to consider was principally vicarious liability, that is to say derivative liability without fault, under which D2 carries liability for the tort of D1, without being himself a tortfeasor, on the grounds of the relationship between himself and D1 and his connection to D1's tort. In summary, the judge ruled that the board(s) of managers, and those bearing responsibility for them, would be vicariously liable, but that the Institute would not. Those responsible for the boards of managers do not (now) dispute that they bear vicarious liability. On this appeal they contend, however, that the Institute does so too, and should contribute to any eventual liability.

4

On appeal, the claimants also invite us to consider the possible primary liability of the Institute, that is to say for negligence attributable to it as a body incorporate. On the particular facts of this case, however, Miss Coe QC expressly does not contend that this would exist other than in circumstances where the Institute also bears vicarious liability.

5

A supplementary issue arises as to whether the managers of the community home, as constituted from 1973 onwards, bear vicarious liability in respect of torts committed under the previous approved school regime. That depends on the correct construction of a transfer of liabilities provision contained in delegated legislation.

Parties

6

The judge was confronted by a very large number of parties. There are some 150 or more claimants, proceeding by way of a group litigation order. There are also no less than 35 defendants. Only one of the defendants is an individual alleged to be an abuser and sued personally. All the others are sued as in one way or another representing, directly or via a chain of representation, either the managers or the Institute. For present purposes no question arises as to anyone's status as representative, nor has any question been raised as to the inclusion of any particular defendant.

7

We have thus been concerned with the potential liability of two groups of defendants.

i) Those said to be responsible as managers of the school from 1973 until its closure in 1992. Throughout that period the statute laid the responsibility for the school upon what it termed the “responsible organisation”, under which the boards of managers carried out the day to day management of the school. These ‘responsible organisations’ were emanations of the Catholic diocese of Middlesbrough. From 1 October 1973 to 28 July 1982 the responsible organisation was the Middlesbrough Diocesan Rescue Society (“MDRS”), an unincorporated association. From 28 July 1982 until closure in 1992 the MDRS was succeeded by the Catholic Child Welfare Society (Diocese of Middlesbrough) (“CCWS”), an incorporated charitable company. These two organisations and various persons sued in representative capacities on the basis that they represented the boards have been referred to as “the Middlesbrough defendants”, and we can conveniently use the shorthand form “the managers”.

ii) Those said to bear liability on the basis of the liability of the Institute of the Brothers of the Christian Schools, also known as the De La Salle Institute. The Institute was at all material times an unincorporated association of lay brothers. It is not sued in its own name, but its trustees are sued as such and a number of individual trustees are sued in that capacity. These various defendants have been referred to as “the DLS defendants”, and that can conveniently be shortened to “the Institute”.

8

It should be noted that the Middlesbrough defendants are vicariously liable for the boards of managers only from 1 October 1973. Although there were managers prior to that date (indeed since the nineteenth century), there is no defendant sued as representing them. So far as pre-1973 allegations are concerned, the claimants rely against the Middlesbrough defendants upon a transfer of liabilities provision in an Order made by the Secretary of State in 1973. The judge held that the effect of this provision is that the Middlesbrough defendants have inherited any liabilities of pre-1973 boards of managers. The Middlesbrough defendants challenge that decision. If the judge was wrong on this point, there is no Middlesbrough defendant vicariously liable in respect of pre-1973 abuse. If, however, the Institute bears vicarious liability, it will extend back beyond October 1973. For this reason the question whether the Institute bears vicarious liability is of significance to the pre-1973 claimants, who support the appeal of the Middlesbrough defendants on this point, whilst opposing their appeal upon the transfer of liabilities provision.

The alleged abusers

9

The alleged abusers fall into at least 6 categories:

i) Institute brothers who were on the teaching staff, including one Headmaster about whose abuse there is no doubt because he has been convicted of serial offences;

ii) lay (non-Institute) members of the teaching staff;

iii) social work staff (non-Institute);

iv) domestic staff, such as a kitchen worker, gardener or farm worker;

v) at least one volunteer helper at the school; and

vi) a chaplain to the school, who was not employed on its staff and not a DLS brother, but a priest appointed to the school by the diocesan bishop.

The statutory framework

10

The school was governed by statutory regimes from the outset. It is not necessary to examine the detail further back than 1908.

i) From at least that year it was a certified reformatory school, operating under the provisions of the Children Act 1908.

ii) Subsequently under the terms of the Children and Young Persons Act 1933 it was constituted as an approved school.

iii) From 1 October 1973 until closure in 1992 it was constituted as an assisted community home under the terms of the Children and Young Persons Act 1969.

11

By the time of the regime of the Children Act 1908 a certified reformatory school was unequivocally, and exclusively, a place of detention for youthful offenders. Pupils came to the school only under order of the criminal courts, made upon conviction for a criminal offence which, in an adult, would carry a sentence of penal servitude or imprisonment. Such a detention order could be made in relation to any child between the ages of 12–15 inclusive. It was for a determinate term and there was provision for release upon licence and for supervision after release, whenever it occurred, until the age of 19 (sections 67 and 68). Such a school was certified by the Secretary of State and inspected by his inspectors (sections 45 and 46). His approval was required for rules made by the managers (section 54). The Act did not, however, contemplate the Secretary of State himself either establishing or managing such a school. Rather, the school was to be managed by its private managers, subject to the controls mentioned, and with the benefit of Treasury contributions to the expenses of keeping detainees there (section 73). By section 52 the managers could decline to accept an offender, but once they did accept him, they had a duty to “teach, train, lodge, clothe and feed him.” It was also the managers upon whom was laid the duty of post-release supervision to the age of 19 (section 68). Whilst no doubt such managers could employ or otherwise engage staff as they wished, the Act was silent as to the legal basis on which any such staff would work at the school. A discretion to establish a superannuation fund for “officers of the school” (section 56) is the only reference to the terms available to any staff.

12

...

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