British Court Upholds Ruling That Catholic Church Can Be Held Liable for the Wrongdoings of Its Priests

Last November on Slaw, we examined the case of JGE v. (1) The English Province of Our Lady of Charity and (2) The Trustees of the Portsmouth Roman Catholic Diocesan Trust, in which a British judge held that the Catholic Church “may be vicariously liable” for a priest’s alleged wrongdoings.

The trustees of the Portsmouth Roman Catholic Diocesan Trust were given leave to appeal the decision to the England and Wales Court of Appeal (Civil Division) and that challenge was heard by three judges in London in May 2012. The judges reserved judgment.

On July 12, 2012, a two-to-one majority dismissed the appeal, upholding the ruling that Portsmouth diocese is liable to pay for alleged wrongdoings of its clergy. This ruling according to many legal experts paves the way for similar claims and far reaching implications for UK employers.

It seems the Court of Appeal had reservations about this approach since Lord Justice Ward said in paragraph 6 of the ruling,

I am far from convinced that trying a preliminary issue is the best way to deal with questions of this sort.

The preliminary issue which is the subject of the 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.”

Notwithstanding, after their search for principle, Lord Justice Ward concluded:

I confess I have found this difficult to decide. I see the force of the arguments both ways. I can conclude that the time has come emphatically to announce that the law of vicarious liability has moved beyond the confines of a contract of service. The test I set myself is whether the relationship of the bishop and Father Baldwin is so close in character to one of employer/employee that it is just and fair to hold the employer vicariously liable.

Father Baldwin is more like an employee than an independent contractor. He is in a relationship with his bishop, which is close enough, and so akin to employer-employee as to make it just and fair to impose vicarious liability … It is just because it strikes a proper balance between the unfairness to the employer of imposing strict liability and the unfairness to the victim, leaving her without a full remedy for the harm caused by the employer’s managing his business in a way which gave rise to that harm, even when the risk of harm is not reasonably foreseeable.”

The dissenting Lord Justice Tomlinson found in favour of the diocese, declaring that the relationship between church and priest was not comparable to a normal employer-employee relationship.

If Father Baldwin can be properly regarded as undertaking his ministry for the benefit of anyone,” he said, “I should have thought it was for the benefit of the souls of his parish. I do not think that it is sensible to describe either the church or the Bishop as having derived a benefit from the activities of its or his priests within the diocese.”

Currently, the Catholic Church does not regard Priests as being its employees but rather as being “Office Holders” and usually in law there is no liability attaching to the acts of an Office Holder.

In the judgment, the judges referred to the ramifications of the decision, not just for the Church but for other organizations, both charitable and commercial. Many say the decision has greater implications for the responsibilities of all employers, because the judgment significantly widens the scope of their “vicarious liability” for the actions of employees and non-employees i.e., independent contractors/self-employed; thus extending vicarious liability to relationships akin to employment.

The Trustees of the Roman Catholic Diocese of Portsmouth have issued the following statement in response to the judgment by the Court of Appeal:

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 organizations of extending vicarious liability in this way.”

The trustees will now be seeking advice from their counsel as to an appeal to the British Supreme Court, although, the Court of Appeal dismissed their request right then and there.

The appellants [Church and trustees] now apply for permission to appeal to the Supreme Court. We acknowledge that the Court’s judgment in this case has widen the scope of vicarious liability extending it from well established situations of employment to relationships that are “akin to employment”. This has ramifications in other areas of the law and to that extent this case does raise a matter of some public importance. The issue was important enough for the Supreme Court of Canada to consider it. We also acknowledge that each of us has found the case difficult to decide on the facts. Nonetheless, we have decided, after some hesitation, to refuse permission to appeal. Rather than deal with a case decided as a preliminary issue, the Supreme Court may prefer to wait till they have a case fought out on all factual issues with a judgment at the conclusion of a fully contested trial. Secondly we are aware that the Supreme Court are hearing the case of Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & ors on 23rd July and although Stage 1 is not at issue in that case, the Supreme Court will be better able than we are to judge whether this case raises other issues they may wish to hear next. This addendum is written in the hope that it may be of some assistance to the Supreme Court in the event that permission to appeal is sought.”

Whether or not the trustees appeal, if the decision has the wide-ranging implications that some expect, we’ll likely hear much more about it. The decision surely leads to as many questions as answers. Will liability stop at the trustees? How high could liability go in the Catholic Church?, among others.