New head of Christian Brothers ordered to appear before court in litigation case

Judge in sex abuse action concerned that delay in advancing case raises constitutional issues

Following a court hearing last year, the Christian Brothers supplied the plaintiff with the names and addresses of the 118 living Brothers who were members of the order between dates in 1979 and 1984, for the purpose of joining them to the action. File photograph: Christian Hartmann/Reuters

The new head of the Christian Brothers in Ireland has been ordered to appear before the High Court on Friday or send legal representatives in a case where a man alleging sexual abuse is having difficulty progressing his action for procedural reasons.

The case, which was taken in 2019, has been bogged down with issues relating to who needs to be served with court papers. The former head of the order, Br Edmund Garvey, chose not to act as nominee for the Brothers for the purpose of the High Court action, as is his legal right. This means that all living members of the order at the time of the alleged abuse had to be made defendants in the case if the plaintiff wanted to sue the order.

Following a court hearing last year, the order supplied the plaintiff with the names and addresses of the 118 living Brothers who were members of the order between dates in 1979 and 1984, for the purpose of joining them to the action. The plaintiff had already served papers on Br Garvey and on the alleged perpetrator of the abuse.

When the case came before Mr Justice Tony O’Connor on Monday, Andrew Nugent BL, for the plaintiff, intended to ask the court to join the new defendants to the action but also for an order whereby his client could serve Br Garvey with the court papers for all the new defendants, rather than having to do so directly to each one. Six of the Brothers live abroad.

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However, Mr Nugent told the court that his solicitors, Coleman Legal, had been informed on Friday that Br Garvey was no longer province leader and, upon inquiry, were told that the new province leader is Br David Gibson.

Mr Justice O’Connor asked Isabelle Aylmer BL, for Br Garvey, when the change in leader had occurred. Following inquiries being made by her solicitor, Ms Aylmer told the court Br Gibson was sworn in as province leader in August of last year.

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Ms Aylmer said she was in court representing Br Garvey in his personal capacity and not as head of the order, and that this had been the position since the outset of the case. Asked whether she was going to be appearing for Br Gibson, she said she had no idea what solicitor’s firm would be representing him, or what barrister would be asked to take on his case.

Frank Buttimer solicitors are representing Br Garvey in the case. There was no representation in court on behalf of the alleged abuser.

“It has been four years and we are still at the stage where we are trying to get the proceedings off the ground,” Mr Nugent said. The order, he said, was making life “extremely, extremely difficult. There is an argument that [the plaintiff’s] constitutional rights are being infringed here.”

Ms Aylmer said it had never been indicated that she was acting on behalf of anyone other than Br Garvey in his personal capacity. It was normally the case that efforts were made to serve court papers on defendants before an application was made to the court that someone else could be served with the papers as a substitute for a defendant.

Mr Justice O’Connor said he wanted to advance the proceedings. It might be the case, he said, that Br Gibson would take a different approach to the one that had been adopted by Br Garvey. Ms Aylmer said she did not know what approach Br Gibson would take.

The taking of the proceedings needed to be accelerated, the judge said. One reason for this was the court’s duty under the European Convention of Human Rights and the Constitution to ensure that litigation was determined in a reasonably efficient and effective way. Asking him to appear before the court on Friday was short notice but Br Gibson, the judge said, must know of the existence of the proceedings.

He ruled that Br Gibson should appear before him, or be represented before him, on Friday morning, so the court could hear his “knowledge and concerns” about how the case should proceed.

Colm Keena

Colm Keena

Colm Keena is an Irish Times journalist. He was previously legal-affairs correspondent and public-affairs correspondent