'A bit untouchable': How the Christian Brothers make it very difficult to bring them to court

Published date25 March 2023
Publication titleIrish Times: Web Edition Articles (Dublin, Ireland)
It is only the Christian Brothers who exercise their legal right not to put forward a person who will act as a nominee for the purposes of such litigation, according to Kathrin Coleman, senior solicitor with Coleman Legal. Taking this position creates huge complications and expense for people wanting to bring the Brothers to court

The strategy contrasts with that adopted by other religious groups, such as the Spiritans and the Carmelites, orders that are currently in the news in relation to historical allegations of sexual abuse in their schools and that are as a result seeing a significant number of new legal proceedings being lodged.

"I am dealing with the Spiritans. It is very straightforward. They nominate somebody straight away who agrees to accept service of the proceedings," said Ms Coleman. "It is only the Christian Brothers really who put us through the wringer."

Asked about the strategy being adopted by the congregation in court proceedings, the Christian Brothers said in a statement that it fully respects the rights of all parties in litigation to progress and argue their case in accordance with the law.

"The congregation continues to view mediation and non-adversarial voluntary agreements as the optimum means of achieving resolution, without the stress of a court appearance. In light of ongoing proceedings before the courts the congregation cannot comment further at this time."

In 2017, in a case called Hickey vs McGowan where a claimant was seeking damages against the Marist order, the Supreme Court made it clear that "unincorporated associations" such as religious orders cannot themselves be sued as they do not have a distinct legal personality separate from their members. The court also said the surviving members of an order at the time of an alleged abuse could be found to be vicariously liable for any damages that were awarded.

Since that ruling, the Christian Brothers has adopted the legal position of choosing not to put forward a nominee who can act in court proceedings as a representative of the order, something that other congregations agree to do. The organisation has also made claimants go to court to get an order instructing it to name the members of the order at the time of the alleged abuse who are still alive. This process can involve so much time, effort and legal expense that some would-be claimants have decided to discontinue their claims, according to Ms Coleman.

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