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.
1. Today’s Appeal Court judgment relates to the ‘preliminary issue’ in the case of JGE v Portsmouth. The claimant, JGE, alleges she was abused by a priest of Portsmouth Diocese, Fr Wilfrid Baldwin, at a care home in the early 1970s. The priest was never convicted of any abuse, and died weeks after this allegation was first made in 2006. The Diocese does not accept the Claimant’s allegations against Fr Baldwin.
2. The original decision, by MacDuff J, was handed down in November 2011. Ruling that although a priest is not an employee of a bishop, MacDuff said he should be treated by the law as ‘akin to an employee’, but observed that “this is not an issue which has previously been decided by the courts of England and Wales” and immediately granted leave the Diocese to appeal.
3. Vicarious liability normally applies to businesses. If an employee harms a member of the public while carrying out the duties of his employment, the victim can sue the employer, who is directly liable even if he is not at fault. The idea is that, in a business that exists to create profit, a company should be asked to pay when harm is caused by someone working there. But the Church is quite different. A priest is an ‘office-holder’ rather than an employee — a status similar in many ways to being self-employed. This reflects the reality that a priest is not under the day-to-day control of his bishop, as an employee is of his employer, nor does he minister for the benefit of the Bishop, as an employee works for the benefit of his employer.
4. The extension of vicarious liability created by the Court of Appeal by this judgment has significant implications for organisations in the public, private and voluntary sectors. For example, critical services — such as those provided by foster carers, who need to have high degree of autonomy — could well be adversely affected by this judgment.
