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Court rules that Diocese of Portsmouth is liable for clerical abuse

By on Thursday, 12 July 2012

The Royal Courts of Justice, where the Court of Appeal sits (Photo: PA)

The Royal Courts of Justice, where the Court of Appeal sits (Photo: PA)

The Diocese of Portsmouth is liable to pay compensation for alleged sexual abuse by a priest, the Court of Appeal has ruled.

The decision, by a majority of two judges to one, makes dioceses liable for the wrongdoings of its clergy and clears the way for similar compensation claims.

A 48-year-old woman known as JGE says as a child she was beaten by a nun at a care home and later raped and sexually assaulted by a priest, Fr Wilfred Baldwin, who has since died. The diocese disputes her claim.

Lord Justice Ward said the relationship of priest and bishop was “close enough” to employer/employee “to make it just and fair to impose liability”.

One judge, Lord Justice Tomlinson, dissented, saying: “If Fr Baldwin can be properly regarded as undertaking his ministry for the benefit of anyone, I should have thought it was for the benefit of the souls of his parish.”

In a statement the trustees of Portsmouth diocese said they would be “seeking advice” about a potential appeal to the Supreme Court.

They said their appeal was not about delaying compensation but was intended to “achieve clarity as to the nature and extent of the bishop’s liability for the actions of diocesan priests”.

They said the verdict had “wide-reaching ramifications… not just for the Church but for other organisations, both charitable and commercial”.

STATEMENT BY THE TRUSTEES OF PORTSMOUTH DIOCESE FOLLOWING TODAY’S APPEAL COURT JUDGMENT

The following statement is issued on behalf of the Trustees of the Roman Catholic Diocese of Portsmouth in response to the judgment by the Court of Appeal in respect of vicarious liability in the case of JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust.

We brought this appeal in order to achieve clarity as to the nature and extent of the bishop’s liability for the actions of diocesan priests. A number of judgments in recent years have sought to extend the scope of vicarious liability, which is designed for relationships of employment, to very different relationships, including that between a bishop and his priest, who is an office holder and not an employee.

We had not just the right but the duty to ask the Court of Appeal to hear the different arguments in this case, not least because of the far-reaching implications to faith and other voluntary organisations of extending vicarious liability in this way.

The decision, although disappointing, was not unanimous, which emphasizes the complexity of this area of the law. The two judges who found against us acknowledged the force of our arguments and all three appeal judges commented on the difficulty of reaching a decision. The judges also referred to the wide-reaching ramifications of the decision, not just for the Church but for other organisations, both charitable and commercial.

Because this case raises complex questions of law of real public importance, the Trustees will now be seeking advice from leading counsel as to a potential appeal to the Supreme Court.

This case is not, and has never been, about seeking to avoid or delay the payment of compensation to victims with valid claims. The Diocese has for years been offering support to clerical abuse victims, and the law rightly allows victims to sue for damages on grounds of negligence, or, of course, to seek redress from the actual perpetrators of the abuse.

This case is about fundamental legal principles involving the very nature of civil society and religious freedom. It would be disastrous if, in seeking to provide redress for victims of harm, the law put intolerable new pressures on the voluntary sector. This judgment shows further thought and scrutiny are required before clarity in this regard can be established.

  • nytor

    Even if found liable for things done by priests, why should the diocese have to pay when it is disputed that the late priest ever did these things? Surely whether or not this woman is telling the truth is the first thing which should be investigated. As I understand it, the diocese does not accept the allegations against the priest who, being dead, is in no position to answer the allegations.

  • Nat_ons

    A terrifying day for any charity whose agent is not an employee, yet more so – in my lay, and thus limited – opinion for Regina, who may now be deemed liable for the private misdeeds of all her officeholders .. not just the public misdeeds of those discharging an office.

    Of course the time of an absolute Sovereign Immunity is not one that ought to overrule vicarious Crown Liabilities, however, failure to regard the unique feudal position of Regina to her officeholders – Church to hers – can only be a writhing pit of legal mayhem.

    There is no official recognition – in constitutionally defined terms – for the singularly old fashioned notion of a fealty based or good faith relationship .. a gentleman’s word has no currency among us, only our lawful contract (even in engagements).

    That Her Majesty might also be held to account publicly in court for the private sexual offences engaged in, known about and hidden by her ministers is a dreadful thought for the Treasury, if not Queen Elizabeth II and her successors. And this is the equivalent case that the decision has launched upon us all; the toe-sucking, under age sex, and perversity of a minister may rightly be exposed and condemned and punished .. but not that Regina is held accountable. No more egregiously muddleheaded result could be imagined – outside the Dickensian Courts of Chancery et al – and the difficulty of coming to a decision is no excuse for coming to any woeful decision, merely a cause of sympathetic understanding for all concerned; the law may not now recognise much in the way of good faith commitments, other than in some obscure, ancient volume of cases, and so lawyers, however so high in authority, may no longer know where to lay responsibility, account and blame when faith is broken in public service (for Sovereign or Bishop) .. but perhaps it is time they once more started so to do (for the Chancellor’s peace of mind if not the welfare of the Diocese of Portsmouth and above all the victims of private abuses by any public officeholder under fealty not employment).

  • J Kearney

    This case had to come up at some time.   It is not a question of what is being said by the so-called victim, but before the case can be brought to court can the victim claim compensation.  The Court has tried to answer these questions.  When one examine the case however one is drawn to the conclusion that the lawyers were not interested in the guilt or innocence of their client but were using the case to change the law. 

  • concernedcitizen

    @nytor:disqus Yes, because this is the only case that has ever been brought before a Catholic priest. Perhaps it is time for the church to take responsibility for the terrible abuse perpetrated time and again by the people who work for it.

  • Parasum

    “Lord Justice Ward said the relationship of priest and bishop was “close
    enough” to employer/employee “to make it just and fair to impose
    liability”.”

    ## “[C]lose enough” is, to say the least, an interesting choice of words – it could be something for lawyers to fight over in the future. 

    Even so, it seems no more than good morals that a diocese should be answerable for the criminal actions of priests. The institutional Church cannt be allowed to escape its moral obligations by using laws to defend itself from the consequences of failing to live by the *ethos* that defines its character. If it claims to be a bastion of Christian ethics, it can’t shrug off those ethics when they have unwelcome consequences for it.

  • Parasum

    If one is to take a dim view of the lawyers for the plaintiff, why should one not take as dim a view of the motives of the Diocese ?  If any of the parties is likely to be exploiting the law for its own selfish ends, the Diocese is by far the most likely of them to be engaging in such tricks.

  • daclamat

    The bishops decide who to train, who to ordain, where to send him, where he shall be accommodated, how much he may be paid, and gives him faculties to dispense the sacraments. On a whim they may remove a priest and send him somewhere or nowhere.  Enormous injustices frequently occur, and the bishops are answerable to know one.  They open and close churches at will, and spends parishioners’ monies on what they please.  Describing this as an employer/employee relationship is a euphemism.  It recalls South Carolina before the civil war! Religious freedom for bishops means freedom to do what they, to whom they want, where they want, when they want.  If this case isn’t about seeking to avoid paying compensation or redress, words have lost all meaning.  In the US dioceseh have hit on the wheeze of declaring themselves bankrupt. What chance do people, damaged as children, after lifelong suffering of mental and physical suffering, have of combatting this cynicism?

  • daclamat

    Quite agree. The woman should get herselve a good lawyer and prove her case in a court of law. Fat chance! Where can we find a few millstones? I think we should have a crack at pursuing ecclesiastics for wilfully endangering childrens’ lives, as in the recent Pennsylvania case (Mgr Fynn). A spell in stir would do them a power of good.

  • http://pulse.yahoo.com/_OTCKAYXC6V65WVJUPZFYCCUEUU Lee

    Not surprised at the ruling. This aberration of a court, that is constitutionally shaky, is full to the brim with modernistic legal principles and a thoroughly detached manner of coming to legal decisions. The UK has gone to the dogs and this institution is one of them !

  • Fr Laurence Roberts

    ‘so-called victim’
    Some of the responses like this one lack moral probity or pastoral sensitivity.  Do not compound the original abuse in this crass and callous manner.

  • JeannieGuzman

    Coverups “TO AVOID SCANDAL” have been the name of the game in the international Roman Catholic Church for far too long!  The landmark court decisions in Philly in the Monsignor Lynn trial (for endangering children by reassigning Pedophile Priests) and this Appeal should send a clear message to the Vatican and the international Church: ENOUGH! The court’s decision on this appeal will have repercussions in every English-speaking country in this world!  Way to go, UK!

  • JeannieGuzman

    Yes, you are right!  Because the court ruled that priests are employees of the diocese, it should make every bishop sit up and take notice about the way in which they control their employees, particularly after allegations of Pedophilia start to emerge.  Now, that bishops may be held accountable for the actions of their employees, maybe bishops wlll start being a little more vigilant!

  • JeannieGuzman

    Before “this institution has gone to the dogs,” may I suggest that the Roman Catholic Church did so by covering up the abuse of Her Pedophile Priests, so as “TO AVOID SCANDAL,” for centuries?  Maybe the RCC was the court’s role-model!

  • Cestius

    Sadly, I think in this case the court is legally right on the question of liability, and it’s not worth appealing.  The case of Rose v Plenty back in the 1970s established the principle of vicarious liability even when an employee breaks the rules set by the employer, and I think it’s pushing it to say that the priest or nun is not an employee.  Although that may technically be the case, the controlling mind behind the whole operation must lie with the diocese and it must have a responsibility.  Where I would question the courts in many cases is in awarding damages over cases of alleged abuse decades ago purely on witness evidence which might be unreliable and where important defense witnesses and evidence may have been lost over time.

  • JabbaPapa

    Nothing in your hysterical anti-religious ranting serves as any sort of explanation of why individual B should be held as criminally responsible for the actions of individual A.

  • JabbaPapa

    And I suppose that in future, all forms of individual responsibility are to be replaced with collective responsibility ?

    So that if in this Brave New World that you are proposing, if a murderer should escape justice, then the criminal’s employer or parents should be forced to either pay up the blood money, or be packed off to prison themselves ?

    Barbarous !!!

  • daclamat

    This case is not, and has never been, about seeking to avoid or delay the payment of compensation to victims with valid claims. The Diocese has for years been offering support to clerical abuse victims, and the law rightly allows victims to sue for damages on grounds of negligence, or, of course, to seek redress from the actual perpetrators of the abuse. 
    When diocesan trustees take a stand on principle, I think, “Eh up. Sounds like wriggling!” Notwithstanding Fr Laurence Roberts’ egregious pastoral sensitivity, has the diocese actually done anything to relieve the suffering of JGE, getting on for fifty? If not, these arguments sound hollow, although not unusual. “We’d love to do something to relieve your pain, but our insurers won’t let us.God Bless You.”

  • daclamat

    Mgr Fynn of Pennsylvania has just been imprisoned for wilfully endangering children’s lives by covering up the activities of a paedophile.  To answer your perspicacious question, if a murderer’s employer gives time space and money and shelter to allow him to carry out his felonious little plan and fulfil his capacity for innocent enjoyment he is indeed guilty. Should be sent to prison, and made to pay. (What on earth has caused your blind, spiteful rage? Are you sure your receiving the right medication? The treatment is obviously not working.)

  • daclamat

    Getting on for fifty “this woman” has had at least thirty-five years to present her case.  Has anyone being listening.  Portsmouth is of course being altruistic, defending princple. And the abused child? Baldwin died in 2006, thirty or so years when he was most certainly in a position to defend himself.

  • Greenmoon

    In JabbaPapa World why does the hierarchy of the Catholic Church appear not to have any kind of responsibility for its actions, or more pertinently, its inactions.

  • JabbaPapa

    You are not looking at the total absence of established facts in this matter — deceased persons cannot be charged with crimes in Courts of Law.

    This is a case where the alleged responsibility for an alleged crime by a deceased accused is being transferred to a third party, in the absence of any ability whatsoever to summon that accused to Court, by virtue of his being dead as a dodo, and therefore in the total absence of even any *possibility* for a properly fair examination of evidence, nor respect for the basic principle of presumption of innocence.

    How can “inaction” be demonstrated where the facts of the matter are completely unarguable in Court ?

    If a baggage handler at Heathrow Airport should be accused 10 years after his death of a rape, are the Airport Authorities then criminally liable to provide financial restitution to an alleged victim ?

    The entire notion is perfectly absurd, and it is very clearly motivated by one thing, and one thing only — hatred for the Catholic Church.

    A plague of cases of paedophilia descended upon the *whole* of Western society during the sexually permissive era of 1950s-1980s, but this designation of the Church as a scapegoat for the natural feelings of revulsion and horror provoked by these crimes is more like sticking pins into a voodoo doll than any kind of serious legal considerations or fairness.

  • Patrick_Hadley

    Are you really unaware that employers can be legally responsible for the actions of their employees? If a baggage handler steals from a suitcase then the victim can certainly seek compensation from the airport authorities. If a teacher rapes a pupil then the school authorities can be sued, because the responsibility for ensuring the safety of the pupils, and making sure that teachers are not rapists, rests directly with them. 

    I suggest that you read this article on vicarious liability. http://www.findlaw.co.uk/law/accidents_and_injuries/accident_claims/500045.html

    The key question at issue in this case is whether this should also apply to priests in parish ministry. The judges ruled that the relationship between a bishop and a parish priest was de facto that of employer and employee.

    Whether there is sufficient evidence to persuade a jury of the truth of the allegations of an event that happened many years ago is a matter for a jury to decide, but the case cannot be thrown out based on the diocese denying that the priest was working on its behalf.

  • JabbaPapa

    You have not addressed any of the points that I actually made ; which does not surprise me in the slightest.

  • Nat_ons

    The Prime Minister is not an employee of Regina, rather a bona fide officeholder. This is the relationship of fealty between a sovereign bishop and his officeholding ministers in their voluntary good faith service. If a bishop is now deemed to be held accountable for the private sexual misdeeds of a priest – not merely any public abuse of his office – then her Majesty and her ministers also are liable to be in for as bumpy ride on ‘vicarious liablity’ terms (for private sexual offences) as church oversight or charity services and their voluntary agents.

  • daclamat

    Baldwin died in 2006. Abuse occurred in the ’70s. What did the dioces do to help the little girl, now approaching ’50. 30 years to get the matter sorted.

  • JabbaPapa

    I have no idea, and I will not make stuff up out of thin air just to fill in the gaps.

  • Fr. Thomas Poovathinkal

    THE CHARACTER AND HISTORY OF THIS WOMAN IS THE FIRST THING TO BE TACKLED TO FIND OUT THE TRUTH ABOUT THE WHOLE THING. IF THE JUDGES DON’T DO IT THEY ARE ONLY PREDISPOSED AND DETERMINED FOR DESTRUCTION OF THE CHURCH.

    WHY SHE WAITED FOR SO MANY YEARS TO MAKE SUCH AN ACCUSATION?

    ANY BODY SELLER CAN MAKE SUCH AN ACCUSATIONS AGAINST ANY PRIEST OR CHURCH PERSONNEL NOW AND IT WILL WORK  IN FAVOUR OF SUCH A PERSON WITH THE HELP OF UNENLIGHTENED JUDGES TO GET HOLD OF LOT OF MONEY.

    “…..the verdict had “wide-reaching ramifications… not just for the Church
    but for other organisations, both charitable and commercial”. HOW TRUE!

  • Fr. Thomas Poovathinkal

    IN SOME PARTS OF THE WORLD THE CHURCH HAS ENDED UP IN PRACTICE LIKE ANY OTHER WORLDLY INSTITUTION. NO WONDER IT IS BEING DESTROYED.

    THE CHURCH OF CHRIST THE LORD IS A HEAVENLY MOVEMENT ON HEARTH INITIATED BY THE LORD HIMSELF IN PERSON, MOTORED BY HIS HOLY SPIRIT AND NOURISHED TO GROWTH BY THE BREAD OF ETERNAL LIFE. IT HAS ITS OWN CLAIMS, DEMANDS AND FRUITS. WITHOUT THESE THE CHURCH COMES TO BE OWNED BY ANOTHER CHRIST OPPOSED TO THE TRUE ONE.

  • 4045

    Commenting on the outcome of the case at first instance this is what the New Law Journal had to say in March of this year.

    “Where a claim is brought against a defendant, consideration should
    be given not only to the likelihood of success, as compared to the value
    of the damages and costs the case exposes the client to, but also to
    the media coverage of the case, the reduction of the party’s goodwill if
    the issue is fought, and the cost of re-establishing that goodwill.
    Sometimes, it will be more commercially prudent to settle a claim
    brought against a client, even where a strong defence is present, if the
    damage to the goodwill by running the defence, and the cost to rectify
    it outweighs the settlement.

    With commercial concerns a value may be ascribed to the goodwill.
    Now the Roman Catholic Church is not a traditional commercial concern,
    far from it. Its goodwill is not a financial commodity. But, the
    goodwill still has a value, a spiritual one. The same is the case with
    other religious organisations. Litigation decisions need to take into
    account the risk and the consequences of reputation damage, not just
    litigation costs. Where a litigation strategy detracts from the primary
    purpose of an organisation, something has gone wrong.”

  • 4045

     It should be noted that in a number of past cases of this general type (for instance, Maga)
    the relevant bishop or archbishop of the Roman Catholic diocese in
    question agreed, for the purpose of the case in question, that the
    priest should be regarded as an employee.

  • Patrick_Hadley

    Have you still not found the CAPS LOCK key?

  • mally el

    How manycases can you identify? I am sure you will find that abuse in non-Catholic institutions – religious and government – are far, far greater. Who is not reporting all these abuses? Why all the cover-up?

  • Nat_ons

    Priestly salary in the Roman communion depends on the canonical role undertaken – voluntarily and in good faith from his biship. A parochial priest is provided for financially by his parish, the bishop does not pay him a wage but does set a scale of stipend (to which the priest may receive other payments depending on his role). A diocese may stipulate that the priest in service should receive the equivalent of a saecular minimum wages, it is for the parish to supply it and monitor it and maintain or update it; the basic income comes from his parish work not from his bishop’s purse, only the rules for the payment are set – the difference say between the NHS and an employing Hospital’s Local Authority (the ‘DHSS Minister’ being the bishop, the ’NHS’ being the diocese, the ‘Local Authority’ being the parish, and the ‘hopsital/ clinic/ surgery’ being the chapels/ schools/ hospitals at which the priest works).

    It would be unusual for the Minister for DHSS to be held personally liable for the sexual misdeeds of a doctor or nurse or clerk even though he is responsible for setting the rules of their employment. The NHS may be held liable indirectly for those directly employed under its aegis, but it is the Local Authority that is the employer – and that must defend its employee’s actions or its own inaction in court. A UK Court presented with a claim of liablity for an ‘NHS employee’ would hear the case of (X) vs ‘ABC Local NHS Trust’ etc not ‘the NHS’ nor the ‘DHSS’ (unless, I assume, the employee were directly employed by those central governing bodies) .. although if the case is serious it may effect future employment by these higher authorities.

    Note well, the actual relationship between a bishop and a priest is not DHSS to NHS employee or Regina to civil servant but Queen Elizabeth II to minister of state. Conflating these distinct relationships is not only misguided, if understandable, it is also of grave importance to the Chancellor of the Exchequer who must now look to funding Her Majesty’s liability in cases of her ministers’ private sexual misdeeds – and not just Regina in claims of sexual misconduct by one of her employees. Thus, if a bishop’s diocesan private secretary sexually abused a minor in the course of his diocesan employment then it would be His Grace and his diocesan team who would have to face liabilty (whether the secretary were a clergyman or not); it is the clergyman’s wage payer not their central regulating authority who is equivalent to the employer-employee type, that is, it is his parish or order or school; the central regulating authority is accountable for any failure in handling the disciplinary procedures (e.g. in not handing a criminal over to the saecular authority for further investigation), and that is as true of Her Majesty and it is of Regina.

    http://www.hendersonchambers.co.uk/barristers/barrister-profiles/junior/malcolm.sheehan

    P.S. The diocese is responsible for the issuing of guidence and implementation of rules to its those executive bodies, the charities, parishes, orders employing or delpoying agents and ministers. So a ’Child Caring Council’ or the ‘Parish of St Job’ or the ‘Order of the Holy Mollie’ executive is properly the ‘employer’, their executive bodies must accept the responsibility as must the areas of their empoyment/ deployment also take account - thus the financial burden for these individual charitable associations would be phenomenal. The diocese acts on their behalf to defer legal costs to these charitable associations - as, no doubt, the diocese may have better legal advice and financial endemnity cover - none of this assistance to the executive bodies makes the individual diocese the employer any more than Her Majesty’s person would be to a Captain of her Guard or the DHSS for a doctor in the Downtown Hospital A&E.

  • 4045

    Thank you for these comments which are most helpful to the debate. If, however, one rises above the legal technicalities of vicarious liability and one looks at the issue from the point of view of a non lawyer, Lord Justice Davis in his judgement at Para 118 put it like this:

    If one were baldly to pose the question: “Should the Roman Catholic church be liable for acts of sexual abuse of parishioners committed in the parish by the Roman Catholic priest?” that would doubtless beg the answer from a person who was a not a lawyer: “Yes, of course.”

    By seeking to evade abuse claims on the basis of the legal peculiarities of the position of a priest the Church is employing what many would view as an unattractive argument and risking further damage to its own goodwill.

    It gives the impression that the Church guided by its insurance company has decided to fight to the last ditch to avoid paying further compensation to victims. The Supreme Court will probably have the last word if as seems likely the Church battles on. But should it fight on against the victims with a too clever by half unappealing technical legal argument which does not sit well with the mission of the Church?

  • Nat_ons

    Note well, the ‘Roman Catholic Church’ is not responsible for the personal wrongdoing of its adherents – the moral agent is responsible for his own immoral acts .. even while under an oath or contract of fealty to some higher authority (like Her Majesty, the DHSS or a Faith).

    The governing authority is accountable for its lack of good governance – sadly all too applicable to the oversight of ministers in the churches, synagogues, mosques etc.

    A moral agent must take responsibilty for his acts, his employing authority for its supervision, and a rule body for its governance – not the last for all.

    Making Her Majesty ‘responsible’ for the misconduct of her ministers in office, or the DHSS responsible for the personal lack of integrity of a doctor on duty, or a diocese responsible for immoral behaviour by an individual in service may seem like a good idea, being appropriate in terms of their accountabily for governance, yet such blind retribution cannot be deemed appropriate as accountablity for the individual’s failings.

    So, clearly Regina is responsible for a lack of due supervision of her servants – whether ministers, soldiers or civil servants (if they are left to abuse their trust, Regina must accept her share of blame). The DHSS is responsible in failure to monitor its workforce and their appropriate deployment or dismissal (if they commit a crime their offence must be handed over for police investigation). A diocese is without doubt responisble for its administration of is officeholders, ministers and workers – not least in dealing with a breech of good faith (the sin being refered to penitence, the disorder to counselling, and the crime to the saecular authority .. even if that means a public roasting of the wrongdoer).

    http://www.jstor.org/discover/10.2307/1289575?uid=3738032&uid=2&uid=4&sid=47699138182657

    The link is to a rather old yet insightful handling of the Kafta-esque nightmare of locating responisbility in a bureaucracy.

  • 4045

    Your approach is interesting but the court is continually seeking just and equitable outcomes and can sometimes bend over backwards in their endeavours. See for example *Chandler v Cape plc*. where the Court of Appeal has now upheld the High Court decision confirming that a holding company can owe a direct duty of care to the employees of its subsidiary. Your reasoning is (with respect) against the current tide of judicial developments in many areas of the law.

  • Jonathan West

    They said their appeal was not about delaying compensation but was intended to “achieve clarity as to the nature and extent of the bishop’s liability for the actions of diocesan priests”.

    Pull the other one!

  • daclamat

    Today’s Washington Post reports Pa. monsignor who became 1st US church official branded
    felon for sex cover-up gets 3-6 years. Covering up is a felony, wilfully putting children at risk. Hands up all the felons in our hierarchy. Ireland has a whopper in Daley. The faithful are rightly letting the wolves get on with their bleating whilst they try to follow in Christ0s footsteps.  A word of advice: keep your handis in your pockets, contrary to the doctrine “what’s thine’s mine; what’s mine’s miown!”. They can’t get out of the habit of using your money in expensive litigation to get themselves off the hook. How about trying to get them done for felony?

  • daclamat

    Has anyone at the CH noticed that a prelate has been locked up in the US for shielding paedophiles? Endangering children’s lives.  Has anything similar been going on in the UK and Ireland?

  • John Wilson

     Jabba defends child rape.

  • Cafeteria R.C.

    The event of abuse and or the cover up of such a crime is so wrong. The silence of the truth for the protection of the image is the root cause today of so many to lose faith in their church. In the USA, the RCC has pay out over $3 BILLION in such damages on these cases. What does that tell you?