Grace v Hendrick & Anor (Approved)

Factual and Procedural Background

On 10 May 2019, Plaintiff initiated a claim seeking damages for personal and psychological injuries allegedly sustained due to wilful assault, battery, and trespass by Defendant One, and negligence and breach of duty by Defendant Two. Defendant One is a member of the Congregation of Christian Brothers, and Defendant Two is the Province leader of the Congregation's European Province. The alleged assaults occurred between 1979 and 1984 at the school Plaintiff attended and other properties controlled by the Congregation.

Following the commencement of proceedings, Plaintiff's solicitors requested Defendant Two's solicitors to identify a legal nominee for the Congregation and to provide names and addresses of members who were part of the Congregation during the relevant period and are currently members. Defendant Two declined to provide this information. Consequently, Plaintiff issued a Notice of Motion on 16 August 2019 seeking orders compelling Defendant Two to disclose these details or alternatively to defend proceedings on behalf of all relevant members pursuant to Order 15, Rule 9 of the Rules of the Superior Courts (RSC) or the court's inherent jurisdiction.

The motion was heard on 1 February 2021. Defendant One did not participate in the motion as no relief was sought against him. Both parties later submitted written arguments concerning the inherent jurisdiction and relevant case law.

Legal Issues Presented

1. Whether the court can direct a member of a religious organisation, sued as vicariously liable for sexual abuse allegedly perpetrated by another member, to disclose the identities of other members of the congregation during the relevant period for joinder in proceedings.
2. Whether, under Order 15, Rule 9 of the RSC, a court can designate a defendant as a representative defendant without that defendant's consent.

Arguments of the Parties

Plaintiff's Arguments

• The absence of specific rules or legislation regarding disclosure of names of potential parties permits reliance on the court's inherent jurisdiction to order such disclosure.
• By analogy to Norwich Pharmacal orders, the court can order discovery to identify wrongdoers to facilitate litigation.
• The plaintiff requires the names and addresses of the Congregation members to prosecute the claim effectively, as the Congregation is an unincorporated body and members may be vicariously liable.
• The plaintiff has no alternative means of obtaining the information, and the refusal by Defendant Two frustrates the prosecution of the claim.

Defendant Two's Arguments

• The inherent jurisdiction should only be exercised sparingly and in extreme, rare, or exceptional circumstances, which are not present here.
• The plaintiff has not established a prima facie case of wrongdoing to the high degree required for disclosure under Norwich Pharmacal principles.
• The plaintiff seeks to circumvent the stringent requirements of Norwich Pharmacal orders by invoking a vague inherent jurisdiction.
• Order 15, Rule 9 cannot be used to compel an unwilling defendant to act in a representative capacity.
• No confidentiality concerns arise here, but the necessary threshold for disclosure has not been met.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the applicability of Order 15, Rule 9, which allows one or more persons with the same interest to sue or defend on behalf of all. The court found that this rule is permissive and requires the consent of the representative defendant. Defendant Two explicitly refused to act in a representative capacity, and the court held that it could not compel him to do so. Precedent confirmed that a representative defendant must be willing.

Regarding the inherent jurisdiction of the court, the court acknowledged its broad scope, including control over procedure and ordering discovery, but emphasized it should be exercised sparingly and only when no other remedy exists. The court distinguished the present application from a traditional Norwich Pharmacal order, which requires a high degree of proof of wrongdoing. Here, the plaintiff alleges substantive wrongdoing against Defendant One and Defendant Two, making them concurrent wrongdoers rather than mere third parties.

The court analyzed the requirement for prima facie wrongdoing in discovery orders. While some authorities require such a threshold, the court concluded that this is not an absolute requirement when the defendant is a concurrent wrongdoer. The court found that the plaintiff’s inability to identify other members of the Congregation, coupled with Defendant Two’s refusal to provide the information, justified the exercise of inherent jurisdiction to disclose the names and addresses of relevant members to enable the plaintiff to prosecute his claim effectively.

The court considered privacy interests of the Brothers whose names are sought and found that disclosure would not infringe on privacy rights, as the identities were known at the relevant time and members were publicly identifiable by their habits and association. The use of the information would be strictly limited to the current proceedings.

In light of the Supreme Court’s decision in Hickey, which confirmed that members of unincorporated religious orders may be vicariously liable for torts committed by other members, the court reasoned that without the disclosure, the plaintiff would be unfairly prejudiced and unable to pursue claims against all relevant parties. The court also noted the potential complications under the Civil Liability Act 1961 regarding contributory negligence if all concurrent wrongdoers are not sued.

The court rejected Defendant Two’s argument that the inherent jurisdiction should only be used in extreme or rare cases, clarifying that while the jurisdiction should be used sparingly, the present circumstances warrant its exercise. Defendant Two provided no substantive reason for withholding the information, and the court found no legal basis to deny the order.

Holding and Implications

The court GRANTED the plaintiff’s application to order Defendant Two to disclose the full names and addresses of persons who were members of the Congregation of Christian Brothers in Ireland from 1 August 1979 to 31 December 1984 and who are currently members.

This decision directly enables the plaintiff to proceed with his claim by identifying all potential defendants who may be vicariously liable. The court emphasized that the order is necessary to avoid injustice and does not set a new broad precedent but rather applies established principles to the particular circumstances of this case.

The costs of the motion are to be borne by Defendant Two, with a stay on costs pending the outcome of the proceedings. Parties may submit further submissions on costs within one week.