Kenneth Grace v Paul Hendrick and Edmund Garvey

JurisdictionIreland
JudgeMs. Justice Niamh Hyland
Judgment Date10 May 2021
Neutral Citation[2021] IEHC 320
Docket NumberRECORD NUMBER: 2019 3700 P
CourtHigh Court
Date10 May 2021
Between
Kenneth Grace
Plaintiff
and
Paul Hendrick and Edmund Garvey
Defendants

[2021] IEHC 320

RECORD NUMBER: 2019 3700 P

THE HIGH COURT

Disclosure – Inherent jurisdiction – Prejudice – Plaintiff seeking an order pursuant to the inherent jurisdiction of the High Court directing that the second defendant disclose the full names and addresses of the persons who were members of the Congregation of Christian Brothers in Ireland during the period from 1 August 1979 to 31 December 1984, and who are currently members of the Congregation of Christian Brothers – Whether the plaintiff was likely to be prejudiced absent the information

Facts: The plaintiff, Mr Grace, on 10 May 2019, brought a claim seeking damages inter alia for personal injuries, psychological injuries and mental distress sustained by him by reason of the alleged wilful assault, battery and trespass to the person perpetrated on him by the first defendant, Mr Hendrick, and by the negligence and breach of duty (including statutory duty) of the second defendant, Mr Garvey. The first defendant was a member of the Congregation of Christian Brothers and the second defendant was the Province leader of the Congregation of Christian Brothers, European Province. It was alleged that the plaintiff was the victim of several incidents of sexual assault perpetrated on him by the first defendant when he was a minor, over a period of years from 1979-1984, both at the school the plaintiff attended and where the first defendant taught, being CBS Westland Row, and at other properties under the control of the Congregation of Christian Brothers. On 16 August 2019, a notice of motion was issued seeking the following reliefs: (1) an order pursuant to the inherent jurisdiction of the High Court directing that the second defendant disclose the full names and addresses of the persons who were members of the Congregation of Christian Brothers in Ireland during the period from 1 August 1979 to 31 December 1984, and who are currently members of the Congregation of Christian Brothers; (2) further or in the alternative, an order pursuant to O. 15, r. 9 of the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the court authorising or directing the defendant to defend the plaintiff’s intended proceedings on behalf of all living members of the Congregation of Christian Brothers who were members of the order during the period from 1 August 1979 to 31 December 1984. The plaintiff focused on the fact that there were no rules of court or legislative provisions in place in respect of the provision of names of potential parties and that therefore no preclusion on the use of inherent jurisdiction of the sort discussed by McG v DW, Mavior v Zerko Limited [2013] 3 I.R. 268 and In the matter of FD [2015] 1 I.R. 741, arose in this case.

Held by Hyland J that, having considered Hickey v McGowan and Cosgrove [2017] 2 I.R. 196, the circumstances of this case appeared to warrant the relief sought: the plaintiff required the information sought to prosecute his claim, he was likely to be prejudiced absent the information, no argument was made that the information was not within the procurement of the second defendant, no reason had been given to justify a withholding of the information and the interests of the Brothers whose names were sought would not be adversely affected. Hyland J saw no alternative to making the order sought as the plaintiff had no other way of obtaining the names and addresses of the members of the Congregation at the relevant time.

Hyland J ordered that the second defendant be ordered to disclose the full names and addresses of the persons who were members of the Congregation of Christian Brothers in Ireland from 1 August 1979 to 31 December 1984 and are currently members of the Congregation of Christian Brothers. Hyland J proposed that the costs of the motion should be borne by the second defendant given that he had been unsuccessful, with a stay upon same pending the determination of the proceedings.

Application granted.

JUDGMENT of Ms. Justice Niamh Hyland delivered 10 May 2021

Background
1

On 10 May 2019 Kenneth Grace (“the plaintiff”) brought a claim seeking damages inter alia for personal injuries, psychological injuries and mental distress sustained by him by reason of the alleged wilful assault, battery and trespass to the person perpetrated on him by Paul Hendrick (“the first named defendant”), and by the negligence and breach of duty (including statutory duty) of Edmund Garvey (“the second named defendant”). The first named defendant is a member of the Congregation of Christian Brothers and the second named defendant is the Province leader of the Congregation of Christian Brothers, European Province. It is alleged that the plaintiff was the victim of several incidents of sexual assault perpetrated on him by the first named defendant when he was a minor, over a period of years from 1979–1984, both at the school the plaintiff attended and where the first defendant taught, being CBS Westland Row, and at other properties under the control of the Congregation of Christian Brothers.

Motion for disclosure of the names and addresses of Christian Brothers
2

Following the issuing of proceedings, the plaintiff's solicitors requested the solicitors for the second named defendant to identify a legal nominee for the Congregation of Christian Brothers and/or to furnish the names and addresses of members of the Congregation who are currently alive and were members at the time the alleged assaults occurred. The second named defendant declined to take either of those steps. Accordingly, on 16 August 2019, a Notice of Motion was issued seeking the following reliefs:

1. An order pursuant to the inherent jurisdiction of the court directing that the second named respondent disclose the full names and addresses of the persons who were members of the Congregation of Christian Brothers in Ireland during the period from 1 August 1979 to 31 December 1984, and who are currently members of the Congregation of Christian Brothers.

2. Further or in the alternative, an order pursuant to O. 15, r.9 of the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the court authorising or directing the respondent to defend the applicant's intended proceedings on behalf of all living members of the Congregation of Christian Brothers who were members of the order during the period from 1 August 1979 to 31 December 1984”.

3

The grounding affidavit of the plaintiff was sworn on 21 June 2019 by Phillip Treacy, solicitor for the plaintiff. It avers to the fact he first requested the Congregation to nominate a person to defend proceedings on its behalf, and then requested the Congregation to furnish the names and addresses of living persons who were members of the Congregation during 1 August 1979 to 31 December 1984. Correspondence from the plaintiff's solicitors to the second named defendant seeking information regarding members of the Congregation was exhibited to Mr Treacy's affidavit. None of the replies were exhibited. An affidavit was filed on behalf of the second named defendant by Ms. Emma Leahy, solicitor exhibiting those replies, being three short letters of 20 February 2019, 16 May 2019 and 6 June 2019.

4

In the letter of 20 February 2019, it is stated as follows:

Edmund Garvey has confirmed that he has not authorised the use of his name in the above proceedings as a nominee on behalf of the Christian Brothers. Please note that it is a matter for the Plaintiff to take proceedings against the appropriate Defendant or Defendants who is/are identified by the Plaintiff as being responsible for the wrongs alleged by the Plaintiff against any such Defendant or Defendants”.

The letter of 16 May was in similar terms. The letter of 6 June simply referred back to the letter of 20 February 2019 but included the following statement: For the avoidance of doubt, we confirm that we are instructed by Edmund Garvey in his personal capacity only. No explicit refusal to provide the names and addresses of the Christian Brothers is contained in the correspondence but equally it is clear that no names and addresses will be forthcoming. It is in those circumstances that the motion was brought.

Hearing of the motion
5

The motion came on for hearing on 1 February 2021. The first named defendant, who is separately represented, did not appear on the motion as no relief was sought against him. Although one of the reliefs sought was based exclusively on the inherent jurisdiction of the court i.e. the direction that the names and addresses of members of the Congregation of Christian Brothers in Ireland be disclosed, no cases were opened in respect of the inherent jurisdiction of the court and the parameters of that jurisdiction. In the circumstances, I directed that the parties submit written submissions identifying relevant case law and the application of same. Both parties submitted very helpful written submissions and I have taken same into account in coming to my decision.

Summary of Issues raised
6

This application raises a deceptively simple issue: can a court direct a member of a religious organisation, sued as being vicariously liable as a member of a congregation for sexual abuse allegedly perpetrated by another member, to disclose the identities of other members of the congregation during the time of the alleged sexual abuse so that they may be joined in the proceedings?

7

It also raises the less taxing question as to whether, by way of O. 15, r. 9 of the RSC, a court can designate a defendant as a representative defendant where there is no agreement to such designation.

8

The core facts relevant to the determination of this application seem to me to be the following:

  • • there is no consent by the second named defendant to him acting in a representative capacity on behalf of the other...

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3 cases
  • Board of Management of Salesian Secondary College (Limerick) v Facebook Ireland Ltd
    • Ireland
    • High Court
    • 19 Mayo 2021
    ...example of the High Court adopting a flexible approach to the exercise of its inherent jurisdiction is provided by Grace v. Hendrick [2021] IEHC 320. There, the applicant sought an order requiring the disclosure of the names of members of a religious fraternity. The case did not fit within ......
  • Sheridan v Allied Irish Banks Plc
    • Ireland
    • Court of Appeal (Ireland)
    • 23 Junio 2022
    ...applied by the High Court in Blythe v Commissioner of An Garda Siochána [2019] IEHC 854 and more recently in Grace v Hendrick & anor [2021] IEHC 320. 30 The trial judge correctly identified and applied this jurisprudence to the claim for disclosure as pleaded by the appellant in his Notice ......
  • Moore v Harris ; Morris v Harris
    • Ireland
    • High Court
    • 5 Diciembre 2022
    ...remedy is confined to cases where “a very clear proof of a wrongdoing exists” (Finlay CJ in Megaleasing). However, in Grace v Hendrick [2021] IEHC 320, Hyland J was prepared, in the particular circumstances of that case, to make a disclosure order pursuant to the inherent jurisdiction of th......

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