Grace v Hendrick & Anor (Approved) [2021] IEHC 320 (11 May 2021)


Grace v Hendrick & Anor (Approved) [2021] IEHC 320 (11 May 2021)





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THE HIGH COURT

RECORD NUMBER: 2019 3700 P

BETWEEN

KENNETH GRACE

PLAINTIFF

AND

PAUL HENDRICK AND EDMUND GARVEY

DEFENDANTS

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

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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.

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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

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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 members of the Congregation at the relevant time;

·

the second named defendant has refused to provide the plaintiff with the names of the

Brothers who were part of the Congregation at the relevant time on the basis that it is a

matter for the plaintiff to identify the persons responsible for the wrongs alleged;

·

the plaintiff’s solicitor has averred on affidavit that the plaintiff is being frustrated in

his endeavour to issue proceedings by the second named defendant’s refusal to furnish

the information sought. No affidavit was sworn by or on behalf of the second defendant

controverting that averment. Counsel for the plaintiff has submitted that he has no other

way of obtaining the names of the Congregation at the relevant time. No submissions

to the contrary were made by the second named defendant, who was represented by

solicitor and counsel at the hearing of the motion. I will therefore proceed on the basis

that the plaintiff is not able to obtain the names of the Congregation members at the

relevant time absent the Orders sought.

Order 15 Rule 9

9.

The plaintiff seeks an order pursuant to O.15, r.9 of the RSC authorising or directing

the second named defendant to defend the plaintiff’s intended proceedings on behalf of all

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living members of the Congregation of Christian Brothers members during the period 1 August

1979 to 31 December 1984.

10.

Order 15 r. 9 provides as follows:

Where there are numerous persons having the same interest in one cause or matter,

one or more of such persons may sue or be sued, or may be authorised by the court to

defend, in such cause or matter, on behalf, or for the benefit, of all persons so interested.

11.

The plaintiff asserts that this rule provides the legal basis for an order either authorising

or directing the second named defendant to defend the proceedings on behalf of the

Congregation at the relevant time. Because the second named defendant has made it perfectly

clear in the correspondence exhibited to the affidavit of Ms. Leahy summarised above that he

is not defending the proceedings in a representative capacity and is not willing to do so, it

seems to me the application is in truth one for a direction rather than an authorisation.

12.

Counsel for the defendant submits that O.15 r. 9 may only be invoked where a plaintiff

or defendant is willing to act in a representative capacity and relies upon case law in that

respect. Counsel for the plaintiff submits that, were the defendant’s interpretation of O. 15, r.9

to be adopted, it would make the wording of the rule “meaningless” and relies in that respect

on the words “may be authorised by the court to defend“.

13.

It seems clear to me that the rule in question is permissive rather than mandatory. In

other words, it makes clear that it is permissible, where a number of persons are suing or being

sued, for one or more of those persons to sue or defend the proceedings on behalf of all persons

having the same interest in the cause. The rule is significant in the absence of any other general

provision in the RSC or in statute authorising parties to act on behalf of other parties. The Law

Reform Consultation Paper on Multi-Party Litigation (LRC CP 25-2003) described O. 15 r.9

as facilitating “a rudimentary form of class action known as a “representative action”

[paragraph 1-01].

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14.

However, what the plaintiff is contending for is quite different. He argues that it permits

the court to direct a defendant to defend the proceedings on behalf of a group of persons where

the defendant does not wish to act in a representative capacity. The case law opened to me is

against this proposition, as is the wording of O. 15 r.9.

15.

Considering the wording of O.15, r. 9 first, the word “authorisation” connotes

permission or clearance being given by person A for a course of action that is desired by person

B. Order 15, r.9 does not provide for the court to “direct” the defence of proceedings on behalf

of all interested persons. It only provides that a court may authorise same. Prima facie, the rule

does not give the court a power to direct a defendant to act on behalf of others.

16.

Case law on this point supports that approach. In Firth Finance and General Ltd. v.

McNarry [1987] N.I. 125 was a Northern Irish case that considered whether a person could be

appointed as a representative defendant against their will. O. 15 r. 16(4) of the Rules of the

Supreme Court provided that in an action against the estate of a deceased person, the plaintiff

shall apply for an order appointing a person to represent the deceased’s estate. The Court found

that there was nothing in O. 15 r. 16(4) to suggest that a person could be appointed as a

representative defendant against his/her will. That case involved an allegation that the deceased

had misappropriated funds from his employer, the plaintiff, who then wished to take a claim

against the deceased’s estate. The deceased’s widow did not wish to engage in or take any

action in her husband’s estate. The plaintiff made an application to appoint the deceased’s wife

as a representative defendant without her consent under O. 15 r. 16(4), and this application was

granted.

17.

On appeal it was argued that the Master had no power to grant such an application and

that only a willing person could become a representative defendant. It was further argued that

such an interpretation of the rule would enable the deceased’s widow to effectively block a

legitimate claim. Counsel cited case law which he said identified a long-standing rule that only

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a willing person may be appointed as a representative defendant, citing Pratt v. London

Passenger Transport Board [1937] 1 All ER 473 and In re Curtis & Betts [1897] W.N. 127.

18.

The Court observed there was nothing in the wording of the Rule that suggested that a

person could be appointed under it as a representative defendant and that such an order would

expose a defendant to the risk of having to incur costs. It concluded such an approach would

be objectionable and could not be ordered.

19.

I find that, despite the rule at issue in Firth Finance being quite different to O.15, r.9,

the rationale expressed by the court in that case is one that applies equally in the circumstances

of this case.

20.

Similarly, in my judgment in Merriman v. Burke & Ors [2020] IEHC 118, I refused to

treat a defendant as a representative defendant in proceedings concerning alleged sexual abuse

in circumstances where the first defendant in those proceedings consistently denied he was a

representative of the Christian Brothers and refused to identify a nominated representative. In

that decision, I held that (a) given the lack of agreement on the part of the first defendant and

the Congregation and (b) the failure to identify the members of the Congregation who the first

defendant allegedly represented, the first defendant had not been sued in an agreed

representative capacity.

21.

In summary then, O. 15 r. 9 cannot be interpreted to mean that a court may order an

unwilling defendant to act in a representative capacity on behalf of other unnamed and

unidentified defendants.

22.

The plaintiff also seeks an order directing representation by the second named

defendant pursuant to the inherent jurisdiction of the court. This relief was not pressed at the

hearing and no authorities were opened to support it. It is well established that where the

jurisdiction of the courts is expressly and completely delineated by statute law it must as a

general rule, exclude the exercise by the courts of some other or more extensive jurisdiction of

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an implied or inherent nature (see page 27 of Murray J. in G Mc G v. DW (no. 2) (Joinder of

Attorney General) [2000] 4 I.R. 1). Here, it appears to me that the jurisdiction of the courts in

respect of representative actions has been delineated by the relevant rule of court i.e. O. 15 r.

9. Accordingly, it is not appropriate that the inherent jurisdiction of the court should be relied

upon.

23.

There is a further potential difficulty for the plaintiff in seeking this Order, in that he

cannot identify to the court the list of potential defendants who should, on his case, be

mandatorily represented by the second named defendant. In Madigan v. Attorney General

[1986] I.L.R.M. 136, one of the plaintiffs sought to challenge the constitutionality of the

residential property tax on her own behalf and on behalf of all assessable persons within the

meaning of s. 95 of the Finance Act 1983. O’Hanlon J. refused the application for a

representative action because no evidence had been adduced to suggest that any other persons

had authorised the said plaintiff to sue on their behalf and the court had no knowledge of the

number of persons who wished to challenge the statute. A somewhat more flexible approach

was taken in Greene v. Minister for Agriculture [1990] 2 IR 17, where it was held to be

sufficient by way of identification of parties represented by a small number of plaintiffs that a

list of 1,392 farmers had been provided to the defendants, although those farmers had not

signed the necessary documentation. On the facts, Murphy J. concluded that the representative

plaintiffs were authorised to act on behalf of the 1,392 farmers. However, in that case the names

of those farmers were available, unlike the present situation.

24.

Accordingly, were I to make an order in the terms sought by the plaintiff in relation to

representation by the second named defendant, I would still have to engage with the issue of

the disclosure of the names and addresses of the Congregation at the time of the alleged abuse

as any such order would require an identification of the parties to be represented by the second

named defendant.

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25.

For the foregoing reasons, I therefore refuse the relief sought at paragraph 2 of the

Notice of Motion.

Disclosure pursuant to inherent jurisdiction of Court

Arguments of the parties

26.

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.

27.

He identified that by way of analogy, the court could look to the types of discovery

orders made under the jurisdiction identified in Norwich Pharmacal v. Customs and Excise

Commissioners [1974] AC 133, followed in Ireland by Megaleasing UK Limited v. Barrett

[1993] IL.R.M. 496. He relied upon the decision in Holloway v. Belenos Publications Ltd (no.

2) [1988] I.R. 494, whereby Barron J. observed that the power to order discovery was part of

the inherent jurisdiction of the court. He submitted that the court had an inherent jurisdiction

recognised by the Constitution to control its own procedures and to administer justice

appropriately and that it should exercise its inherent jurisdiction in the circumstances of this

case to direct production of the names and addresses of the Congregation at the relevant time.

28.

The second named defendant made two key points, the first being that the jurisprudence

on inherent jurisdiction indicates that it is a power which should only be used sparingly, and

on extreme, rare, and exceptional occasions. He identified that no such exceptional occasion

has been established by the plaintiff here such as to justify the invocation of the court’s inherent

jurisdiction.

29.

Second, in response to the reference by the plaintiff to the Norwich Pharmacal

jurisdiction, the second named defendant stressed that the courts will only direct the disclosure

of the identity of alleged wrongdoers if the plaintiff can demonstrate a very clear and

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unambiguous establishment of wrongdoing, relying on Megaleasing, as well as subsequent

decisions, including O’Brien v. Red Flag Consulting [2015] IEHC 867, and Parcel Connect v.
Twitter International Company [2020] IEHC 279. The second named defendant stressed that

here, only a plenary summons has issued, the plaintiff has not made out a prima facie case and

has not established the alleged wrongdoing to a high degree of certainty as required by the case

law. Because the plaintiff is seeking an order that has all the characteristics of a Norwich

Pharmacal order, he should not be entitled to obtain a similar order by the “back door” of

inherent jurisdiction where the requisite threshold has not been met. Similarly, the second

named defendant cautioned against the invocation of a “vague” inherent jurisdiction.

The nature of inherent jurisdiction

30.

Article 34.3.1 of the Constitution provides as follows:

3.1 The Courts of First Instance shall include a High Court invested with full original

jurisdiction in and power to determine all matters and questions whether of law or fact,

civil or criminal.

31.

There is little discussion of Article 34.3.1 as the source of the inherent jurisdiction of

the courts, although the decision in FD does refer to it. Other decisions make it clear that the

inherent jurisdiction of the courts, particularly as relied upon to provide for discovery,

significantly pre-dates the Constitution.

32.

The source, nature and limitations of this jurisdiction has been variously explained as

follows:

·

The court has an inherent jurisdiction to stay proceedings … This jurisdiction should

be exercised sparingly and only in clear cases; but it is one which enables the Court to

avoid injustice …” (Costello J. in Barry v. Buckley [1981] I.R. 306 page 308);

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·

The courts have an inherent jurisdiction to control their own procedure and to dismiss

a claim when the interests of justice require them to do so” (Hamilton C.J. in Primor

plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 p. 475);

·

It is part of the court’s function to vindicate and defend the rights guaranteed by

Article 40, section 3. If the courts are under an obligation to defend and vindicate the

personal rights of the citizen, it inevitably follows that the courts have the jurisdiction

to do all things necessary to vindicate such rights.” (Hamilton C.J. in DG v. Eastern

·

That a court possesses inherent jurisdiction implicitly “whether owing to the very nature

of its judicial function or its constitutional role in the administration of justice” (Murray

J. in G Mc G page 26);

·

That there is “a jurisdiction inherent in the court which enables it to exercise control

over process by regulating its proceedings, by preventing the abuse of process and by

compelling the observance of process. It is a residual source of power which the court

may draw upon as necessary wherever it is just or equitable to do so“. (Kelly J. in PJ

Carroll and Company v. Minister for Health (no. 2) [2005] 3 IR 457 page 466);

·

If an obvious problem of fair procedures or efficient case management arises in

proceedings, the court, if there is no rule in existence precisely covering the situation,

has an inherent power to fashion its own procedure, and even if there was a rule

applicable the court is not necessarily hidebound by it” (Geoghegan J. in Dome

·

The court’s inherent jurisdiction stems from the nature of the court’s judicial function

or the court’s constitutional role in the administration of justice” (Clarke J. (following

Murray J. in McG) in Mavior);

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·

It has been established that there is an inherent jurisdiction to set aside a final order

in exceptional circumstances such as on the basis of bias or fraud or where there has

been a breach of constitutional rights…”(Dunne J. in Nolan v. Carrick [2013] IEHC

523);

·

The inherent jurisdiction of the court is not to be confused with a right to change the

law at whim.” (Cross J. in Re Depuy International Ltd [2017] IEHC 101, paragraph 30);

·

“… it is exercised only where necessary and … it has the overriding objective of

avoiding injustice” (Barrett J. in Bank of Scotland v. McDermott [2017] IEHC 77 page

5).

33.

Given that this application seeks an order directing disclosure of information, the cases

on the relationship between discovery and the inherent jurisdiction of the court are particularly

apposite.

34.

In Holloway, Barron J. observed that:

A rule relating to orders for discovery is a rule regulating the exercise of the inherent

jurisdiction of the court…. The power to order discovery is part of the inherent

jurisdiction of the court and the rule is one giving altered effect to that inherent

jurisdiction“.

35.

The court has an inherent jurisdiction to direct further and better discovery where the

discovery made on foot of an order or agreement for discovery is inadequate or

deficient. I accept the submission advanced by the plaintiffs that the court’s inherent

jurisdiction in that regard is extensive and can include, in very exceptional cases, an

order directing cross-examination of a deponent on an affidavit of discovery (Duncan

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36.

The case law above demonstrates that inherent jurisdiction may be used as the legal

basis for a wide variety of orders, including case management, directing further and better

discovery, directing discovery of the identity of third parties for the purposes of suing them,

staying proceedings, setting aside a final order, granting bail and detaining a young person not

charged or convicted of any crime in a penal institution and/or child care institution.

37.

At this point, I should address the second named defendant’s argument that the inherent

jurisdiction of the court should only be used on “extreme and rare occasions”. Those words

come from the decision of Hamilton C.J. in DG v. Eastern Health Board where he stated at p.

524:

“The jurisdiction, which I have held, is vested in the High Court is a jurisdiction which

should be exercised only in extreme and rare occasions, when the Court is satisfied that

it is required, for a short period in the interests of the welfare of the child and there is,

at the time, no other suitable facility.”

38.

Carefully read, it seems to me that Hamilton C.J. was commenting, not on the use of

inherent jurisdiction in general but rather on the use of it to justify detention of a child not

charged or convicted with any criminal offence in a penal institution. Similarly, read in context,

the comment of MacMenamin J. in HSE v. AM [2019] 2 I.R. 115 to the effect that “Applications

invoking an inherent jurisdiction may, therefore, be made, but only in exceptional cases … As

was made entirely clear by the judgment in D.G. v. Eastern Health Board [1997] 3 IR 511,

inherent jurisdiction must not be used as a first port of call, when, by legislation, the Oireachtas

has spoken on the matter” (paragraph 90), appears to me to have been made in the context of

cases involving fundamental principles of constitutional stature i.e. as demonstrated by his

observations later in the case: “… where rights to life and liberty under Article 40.3 of the

Constitution did arise, and where this court has held that there is an inherent jurisdiction,

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albeit one to be used sparingly, and only as a “backstop” when statutes do not govern the

situation” (paragraph 92).

39.

The overall tenor of the case law is, in my view, not that the inherent jurisdiction of the

courts should only be used in extreme/rare and exceptional cases but rather that it should be

used sparingly, where there is no other alternative and where the issue is not already addressed

by legislation and/or rules of court (see, inter alia, FD).

Disclosure of the names of third parties

40.

The nature of the order sought is naturally a critical factor to be considered when parties

invoke the inherent jurisdiction of the courts. Happily, in this case, I do not have to decide as

a matter of principle whether courts have an inherent jurisdiction to order a defendant to

disclose names of suspected wrongdoers for the purpose of issuing proceedings against them,

as it has long been accepted that courts have the power to do so in the context of Norwich

Pharmacal orders and also in other contexts. This is clear from the following passage from

the judgment of Lord Reid in Norwich Pharmacal:

“Discovery as a remedy in equity has a very long history. The chief occasion for its

being ordered was to assist a party in an existing litigation. But this was extended at

an early date to assist a person who contemplated litigation against the person from

whom discovery was sought, if for various reasons it was just and necessary that he

should have discovery at that stage. Such discovery might disclose the identity of others

who might be joined as defendants with the person from whom discovery was sought.

Indeed, in some cases it would seem that the main object in seeking discovery was to

find the identity of possible other defendants“. (p. 173)

41.

That passage makes clear that the original power of the courts to order discovery

derived from equity. The cases discussed in the judgments of the five judges of the House of

Lords in Norwich Pharmacal suggest that this power to order discovery may have existed for

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more than two centuries. Finlay C.J. in Megaleasing observed that the jurisdiction had been

traced back to Orr v. Diaper (1876) 4 Ch. D. 92. McCarthy J. in the same case traced the origins

of the power back to the Supreme Court of Judicature (Ireland) Act 1877.

42.

As interpreted in the Supreme Court decision of Megaleasing, Norwich Pharmacal

orders may be made where the plaintiff seeks discovery exclusively for the purposes of

discovering the identity of wrongdoers and has no independent cause of action against the

defendant, although it is a condition of such discovery that (a) the defendant must in some way

be mixed up with the wrongdoing and (b) a very clear proof of a wrongdoing exists. Neither in

Megaleasing, nor in the discussion of that case by the High Court and Supreme Court in Doyle

v. Commissioner of An Garda Siochana [1999] 1 IR 249, is the question as to whether clear

proof of the existence of wrongdoing is required if the application is not made in the context

of proceedings for sole discovery.

43.

I agree with the second defendant’s submission that the plaintiff does not come under

the existing Norwich Pharmacal jurisdiction as applied in Ireland. No clear evidence of

wrongdoing or even prima facie evidence of wrongdoing has been established as would be

necessary to obtain a traditional Norwich Pharmacal type order. The pleadings have not gone

beyond the issuing of a plenary summons. No wrongdoing can be assumed on the part of either

defendant at this point in the proceedings. The burden of proof rests on the plaintiff, to be

discharged on the balance of probabilities.

44.

However, there is another reason that this application is not a typical Norwich

Pharmacal type application. It is not an action for sole discovery. The defendants have not

been joined simply for the purposes of obtaining discovery. The first named defendant is

accused of very serious torts, namely wilful assault, battery and trespass to the person. The

second named defendant is sued for negligence and breach of duty, presumably on the basis of

the doctrine of vicarious liability, although that is not pleaded in the endorsement of claim.

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45.

The defendant says that that is the end of the matter since the plaintiff cannot

circumvent the requirement to establish a threshold of wrongdoing by invoking the inherent

jurisdiction of the court. That approach seems to assume that even where the action is not for

sole discovery” as described by Finlay P. in Megaleasing, the plaintiff must establish prima

facie wrongdoing. The second named defendant has cited the decision of MacEochaidh J. in

O’Brien v. Red Flag Consulting [2015] IEHC 867 in support of that proposition. I discuss same

below.

46.

It seems to me that, subject to the Red Flag line of authority discussed below, in

principle the flexibility of the inherent jurisdiction of the court and the wide range of situations

in which it can be deployed (as discussed above) would permit an order for disclosure of the

identity of potential parties even where the traditional Norwich Pharmacal requirement of

establishment of prima facie wrongdoing is not met.

47.

Moreover, that argument ignores the case law cited in Norwich Pharmacal which lends

support to the notion that discovery was traditionally available to a plaintiff against a defendant

to discover the names of other potential wrongdoers, even without proof of wrongdoing. The

issue that the House of Lords struggled with in Norwich Pharmacal was whether such a remedy

was available where the plaintiff had no cause of action against the defendant. But the question

as to whether discovery of information in respect of potential wrongdoers was available where

the plaintiff was proceeding against the defendant did not appear to trouble it.

48.

In the five judgments delivered by the House of Lords in Norwich Pharmacal, a wide

range of case law as to the entitlement of a court to order discovery of the identity of suspected

wrongdoers was discussed. From that, it is possible to deduce the following principles: that

such a jurisdiction exists, is of considerable antiquity, likely derives from equitable principles

and does not appear to be necessarily conditional on prima facie proof of wrongdoing. For

example, in the submissions made to the House of Lords in the Norwich Pharmacal case,

17

recorded in the law report, counsel referred to US law, relying inter alia on the decision of

Judge Learned Hand in Pressed Steel Car Company v. Union Pacific Railway Co (1917) 240

F 135 where he held at p.136:

the jurisdiction of this court to entertain a bill in equity for discovery… will still be

exercised even in aid of an action at law, if the plaintiff cannot without it find out whom

he should sue … the jurisdiction will not be exercised, if the legal remedies are

sufficient; like any other equitable remedy, it is exceptional, and the plaintiff must bring

himself within the exception“.

Discussing the purposes of a bill in equity for discovery and noting that in most cases the law

has rendered it obsolete, Judge Learned Hand observed that “if … the plaintiff cannot

adequately present his case by subpoena and especially if he needs a preliminary inspection of

documents, then there is every reason to assert so ancient a source of equitable jurisdiction“.

49.

In the textbook, Bray on Discovery (1885), referred to by a number of the Law Lords

in Norwich Pharmacal, the author identifies that a party might file a bill of discovery before

he commenced his action, in order inter alia to ascertain the proper person against whom to

bring the action (Moodalay v. Morton (1785) 1 Bro C.C. 469) (in that case, against a company

and a secretary to ascertain whether the persons who had done the act complained of were

acting by the company’s authority) (see page 61 of Book 3, Chapter X).

50.

Lord Kilbrandon in Norwich Pharmacal quotes the dicta in the South African case, In

Colonial Government v. Tatham (1902) 23 Natal L.R. 153, where Bale C.J. and Finnemore J.

observe:

Before granting such an application we must be satisfied that the applicant believes

that he has a bona fide claim against some person or persons whose names he seeks to

discover, and whose name can be supplied by the respondent, and that he has no other

appropriate remedy“.

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and Beaumont A.J. in the same judgment says, at p. 158:

The principle which underlies the jurisdiction which the law gives to courts of equity

in cases of this nature, is that where discovery is absolutely necessary in order to enable

a party to proceed with a bona fide claim, it is the duty of the court to assist with the

administration of justice by granting an order for discovery, unless some well-founded

objection exists against the exercise of such jurisdiction.”

51.

The requirement for prima facie wrongdoing, which does not feature prominently in

the decision of the House of Lords in Norwich Parmacal but is writ large in Megaleasing

(which was of course only concerned with sole discovery) appears to largely derive, in my

view, from the fact that the action is one for sole discovery i.e. there is no independent claim

of wrongdoing against the defendant. Therefore, before putting a defendant against whom no

claim is made to the trouble of making discovery, a court must be satisfied inter alia that there

is clear evidence of wrongdoing. (That is also why a court will not make an order for sole

discovery against a defendant unless the defendant is in some way “mixed up in the

wrongdoing”).

52.

However, the situation is quite different where the defendant is one against whom

substantive wrongdoing is alleged in the proceedings i.e. a concurrent wrongdoer, and who has

not been joined simply to provide information in relation to the identity of wrongdoers. In such

a case, the defendant is already enmeshed in the legal process and is likely to face discovery

requests later in the proceedings. In such a situation, the rationale for the necessity for prima

facie evidence of wrongdoing to justify an order for discovery of the identity of wrongdoers is

less obvious. That is not to say that, in an appropriate case, a court might refuse to order

disclosure of the identity of wrongdoers by a concurrent wrongdoer without prima facie

evidence of wrongdoing. But in my view, it is inappropriate to treat the establishment of prima

19

facie wrongdoing as an absolute requirement, the absence of which must operate to bar any

applicant from obtaining an order, even where the interests of justice require it.

53.

I should add that the necessity for prima facie wrongdoing is not without its own

difficulties and there are occasions where it might not be appropriate to require it. In this

respect, I note the observations of Laffoy J. in Doyle v. Commissioner of An Garda Siochana

where she observed, in the context of an application for Norwich Pharmacal relief as follows:

“For the Court to make a finding of very clear proof of wrongdoing by an identified

alleged wrongdoer in proceedings in which the identified alleged wrongdoer is not a

party would constitute a breach of one of the fundamental rules of natural justice ­ audi

alteram partem” (p. 16).

54.

Finally, I am aware that there is recent U.K. authority where the requirement for prima

facie evidence of wrongdoing has been dispensed with when ordering a defendant to provide

the names of alleged wrongdoers. However, given that same was not identified by either party,

I have not considered that line of authority in this judgment.

The decisions in O’Brien v. Red Flag Consulting Ltd.

55.

I turn now to consider whether the decisions of the High Court and the Court of Appeal

in O’Brien v. Red Flag Consulting Ltd. mean that, despite my observations above, I am not

entitled to make an order for discovery of the identity of wrongdoers absent evidence of prima

facie wrongdoing, even where the defendant is itself accused of wrongdoing.

56.

The first decision is an ex tempore decision of MacEochaidh J. in O’Brien v. Red Flag

Consulting & Ors. [2015] IEHC 867. The plaintiff had sought an order requiring the defendants

or the appropriate defendant to reveal the name of one of their clients. The plaintiff said he had

become aware of a campaign against him and that he instigated an investigation to discover

who might be behind the campaign. He received a memory stick from an anonymous person

and launched proceedings against the defendants. Having referred to the decision in Norwich

20

Pharmacal and more recent UK case law (Rugby Football Union v. Consolidated Information

It is also clear from an examination of Irish jurisprudence that whereas historically

such orders were made against an innocently involved defendant, it is clear that

disclosure orders can be made against actual wrongdoers and whether one calls those

Norwich Pharmacal orders or disclosure orders or discovery orders, such orders, are

available to the High Court and have been made in the past” (paragraph 13).

57.

In response to an argument by the defendant that the orders should not be made because

it would breach their duty of confidentiality to their client, the plaintiff argued that the right of

the defendants to protect the confidentiality of their clients must be balanced against the degree

to which wrongdoing has been established by the plaintiff. Having reviewed inter alia the Irish

authorities, MacEochaidh J. observed that “one feature stands out, and that is that in all of

them … wrongdoing by unidentified persons, to a very high degree of probability, had been

made out by the plaintiffs … It seems to me the law does require that a plaintiff establishes to

a high degree of certainty that an unknown person has engaged in unlawful activity before

disclosure orders will be made” (paragraph 22).

58.

He concluded that wrongdoing had not been made out to the degree necessary to justify

the making of the orders sought and that, given the confidentiality concerns, there would have

to be a very strong case indeed about the alleged wrongdoing to the point of almost certainty

before a court could so order. (It should be observed that in this case, no confidentiality

concerns arise for the reasons I discuss later).

59.

That decision was not appealed. In 2016, an application for what might be described as

“ordinary” discovery was made in the same proceedings, and the various categories sought

required documents that would reveal the identity of the unnamed client i.e. the same material

that had been refused in the judgment described above. The defendants agreed to make

21

voluntary discovery save for anything that would reveal the identity of their client. Reference

was made to the previous decision of MacEochaidh J. on 21 December 2015. In O’Brien v.

Red Flag Consulting [2016] IEHC 719 MacEochaidh J. ­ who was again adjudicating upon

the application – observed as follows:

The fact that disclosure has been refused on a Norwich Pharmacal application could

not prevent a party from seeking discovery in the ordinary way … Disclosure of the

defendants’ client’s name to enable the plaintiff to sue him or her has been refused.

That application cannot be repeated in this discovery application but that is not to say

the plaintiff is prohibited from seeking the name of the defendant’s client on the basis

that the information is relevant in these proceedings – as opposed to needed for intended

proceedings” (paragraph 7).

60.

He concluded that knowing the defendants’ client’s identity would not advance the

plaintiff’s plea and was therefore not relevant and refused discovery.

61.

That decision was appealed to the Court of Appeal and judgment was delivered by Ryan

P. on 13 October 2017 in O’Brien v. Red Flag Consulting [2017] IECA 258. The President

agreed that material identifying the defendants’ client was not relevant. However, the plaintiff

also sought discovery on the basis that there was an entitlement to same under the Norwich

Pharmacal jurisdiction. The defendant noted the plaintiff had not appealed the original 2015

decision refusing disclosure of the identity of the client and could not re-visit a claim previously

made and rejected by the court.

62.

At paragraph 37, the President upheld the conclusions of the High Court, holding inter

alia there was no new basis advanced by the plaintiff to produce a different result from the

previous unsuccessful application, there was no case made out on the facts that entitled the

plaintiff to the order sought, and this was a case of res judicata. At paragraph 38, the President

observed that there was substance to the submission by the defendants that the previous

22

decision was binding and that the application, insofar as it relied upon Lord Reid’s

identification of an appropriate circumstance for discovery, represented a return to previously

trodden territory. At paragraph 42, he concluded that the trial judge was correct to refuse the

ground of application based on the Norwich Pharmacal jurisdiction, and that he “ought indeed

to have held that the matter was res judicata by reason of the previous decision of the court.

But on the footing that the judge employed in considering the matter, it was also correct to rule

out relief because the factual ground had advanced no further“.

63.

Finally, at paragraph 80, he notes that counsel for the plaintiff accepts that he put up

the case in a quasi-Norwich Pharmacal application to MacEochaidh J. in the High Court in the

previous application but that the issue was not the subject of res judicata or issue estoppel

because the test the court applied on that application was different and the issue was not

precisely the same, and that MacEochaidh J. in the 2016 decision was wrong to say that the

Norwich Pharmacal application could not be renewed. The President rejected those arguments.

64.

The above summary of the findings of the President is necessary to contextualise the

observations the President made on the Norwich Pharmacal jurisdiction, summarised below,

and to explain why I have reached the conclusion that his observations on that jurisdiction were

obiter such that I am not bound by them in reaching my decision in this matter.

65.

Turning now to those observations, the plaintiff had put forward an argument that the

Norwich Pharmacal jurisdiction differs, depending on whether one is considering an innocent

party (albeit one who is mixed up with the wrongdoing) or an actual defendant. In response to

this argument, the President observed as follows:

In my judgment, the appellant plaintiff is not correct as a matter of law in proposing

two separate Norwich Pharmacal jurisdictions, one for an innocent party and one for

an actual defendant. There is only one, which has been exercised in cases (a) in which

the requested party is a defendant or alleged wrongdoer where the applicant achieves

23

a relatively high standard of proof on a provisional basis, that is, a strong case and (b)

where the party in possession of the information is involved in the wrongful conduct in

significant degree but is itself innocent of liability to the applicant seeking the

disclosure, again provided the applicant makes out a strong prima facie case. The

standards of evidence or proof are not different; it would make no sense to hold

otherwise” (p.28, para. 41 (x)).

66.

That statement suggests that a plaintiff seeking the identity of an alleged concurrent

wrongdoer must identify a prima facie case, just as it would be required to do if the action was

one for sole discovery. However, I note that in a later passage the President focuses on the

interests of justice rather than prescriptive requirements: at paragraph 44, he says “Mr. O’Brien

has gone no further than to make the allegations which if they were founded in fact at a

sufficient level could justify the court in making the order he seeks if it was satisfied that it was

in the interests of justice to do so. I should say that this last point is not to be overlooked: the

fact that the jurisdiction exists for the court to make an order does not mean that it will do so;

the court must be satisfied that the application is in all the circumstances a deserving one“.

67.

Despite these observations, for the reasons set out above, I have concluded there is no

binding authority from the Court of Appeal to the effect that a plaintiff seeking discovery of

the names of third parties from a concurrent wrongdoer is, in every case, required to

demonstrate the existence of a prima facie case of wrongdoing.

68.

Insofar as the 2015 decision of MacEochaidh J. is concerned, the position is different.

He squarely concludes that prime facie evidence of wrongdoing is required even where the

defendant is a concurrent wrongdoer, as opposed to a person mixed up in the wrongdoing in an

application for sole discovery. However, applying the doctrine of stare decisis, as identified in

Irish Trust Bank Ltd. v. Central Bank of Ireland [1976] ILRM 50 and Re Worldport Ireland

Ltd. [2005] IEHC 189, I have concluded that I should depart from his decision and come to a

24

different view on this question as the decision in O’Brien was not based upon a review of

significant relevant authority. I am conscious that a High Court judge should be slow to depart

from another decision of the High Court, bearing in mind the importance of consistency.

However, for the reasons I explain below, I find it appropriate to do so in this case.

69.

The decision in O’Brien was a short, ex tempore decision. Presumably because of the

necessity of delivering the decision on an urgent basis, there was no detailed consideration by

reference to decided case law of this discrete and novel question i.e. the necessity for proof of

prima facie wrongdoing where the defendant is a concurrent wrongdoer. The majority of

authorities relied upon by MacEochaidh J. were concerned with applications for sole discovery

­ Norwich Pharmacal, Megaleasing, and EMI Records (Ireland) Ltd. v. Eircom Ltd [2005] I.R.

148. The only one that concerned concurrent wrongdoers, Ryanair v. Unister [2011] IEHC 167

did not discuss potential differences between innocent parties mixed up in wrongdoing and

concurrent wrongdoers at all. Indeed, the Supreme Court decision, Ryanair v. Unister [2013]

I.E.S.C. 14, was largely concerned with jurisdictional issues. However, as I identify above,

there is a line of much older U.K., U.S. and South African case law that suggests that the

necessity for proof of prima facie wrongdoing is not invariably required when the defendant is

a concurrent wrongdoer. That case law was not considered.

70.

Equally, for understandable reasons of urgency, nor was there any consideration of the

difference between sole discovery and discovery sought against concurrent wrongdoers insofar

as evidence of prima facie wrongdoing is concerned. Nor was there a consideration of the

potential for the inherent jurisdiction of court to accommodate such an order, even where no

prima facie proof of wrongdoing was demonstrated, where the interests of justice require it.

71.

In the circumstances, I have concluded that the High Court decision on O’Brien should

not be considered an authoritative statement on the law on this discrete point, and it is

appropriate that I should depart from it.

25

Backdoor/vague jurisdiction

72.

Before turning to a consideration of whether, in the circumstances of this case, the

jurisdiction should be exercised, I must address the defendant’s argument that the plaintiff is

circumventing the requirements of a Norwich Pharmacal order and using a “backdoor” of

“vague” inherent jurisdiction. For the reasons identified above, I have concluded there is a

jurisdiction to make orders directing the disclosure of the identity of potential third parties

against concurrent defendants. As such, the jurisdiction in question is not “backdoor” merely

because it differs from the Norwich Pharmacal jurisdiction.

73.

In respect of the charge of “vagueness”, this seems to be a reference to Clarke J.’s

statement in Mavior as follows: “If in a constitutionally permissible way, the Oireachtas have

defined the limits of a particular jurisdiction then it is not for the courts to extend those limits

by invoking a vague “inherent jurisdiction” (paragraph 17). However, the issue he was

concerned with was whether there was effectively an ouster of the inherent jurisdiction of the

courts in circumstances where the area had been delineated and addressed by statute or rules

of court. That is not an issue in this application.

Application of principles to instant case

74.

In Barry v. Buckley, Costello J. noted that the inherent jurisdiction to stay proceedings

enabled the court to avoid injustice. In Primor, Hamilton C.J. referred to the courts having an

inherent jurisdiction to dismiss a claim when the interests of justice required them to do so.

Finlay C.J. observed in Megaleasing that the power to order discovery in the circumstances of

the case “was a power which must be sparingly used, though where appropriate it may be of

very considerable value towards the attainment of justice“. O’Flaherty J. observed in the same

case that the action for discovery might prove to be a valuable instrument in the search for

justice.

26

75.

Having regard to the above, it seems to me that the paramount consideration that should

guide my decision is whether making the order sought serves the interests of justice. I am

conscious that the jurisdiction I propose to exercise is similar in nature to that exercised in the

context of a Norwich Pharmacal order and I adopt the approach of Finlay C.J. that the

jurisdiction is one that must be exercised sparingly. Equally, I have followed the approach

identified by Dunne J. in Nolan to the effect that: “This exceptional jurisdiction [to set aside

an appeal pursuant to the inherent jurisdiction of the court] is not to be exercised in

circumstances where there is another remedy available such as an appeal“.

76.

Having applied these principles, I am satisfied that plaintiff’s application should be

granted for the following reasons:

The plaintiff requires the information sought to prosecute his claim

77.

As identified above, Dunne J. in Nolan has indicated that inherent jurisdiction should

only be relied upon where there is no alternative. Here, it flows from the decision of Hickey v.

McGowan and Cosgrove [2017] 2 I.R. 196, described below, that the plaintiff cannot sue the

Christian Brothers as they are an unincorporated body and that individually, the members of

the Congregation are capable of vicarious liability for any wrongdoing of another member of

the Congregation, if they were members during the relevant period. One or more Brothers could

act as representatives for the Congregation in these proceedings but have declined to do so. In

those circumstances, if the plaintiff wishes to sue the Congregation for the wrongs he claims

to have suffered, the only way he can do so is to sue the Brothers individually under the doctrine

of vicarious liability. To do so he must have their names and addresses.

78.

In Hickey, the plaintiff alleged that he been sexually abused by the second defendant, a

teacher in a national school run by the Marist Order. The first defendant was the head of the

Marist Order and was sued as being vicariously liable for the acts of the second defendant. The

defence of the first defendant was straightforward. It was that members of an unincorporated

27

association, such as the Marist Order, were not vicariously liable for the acts of another

member.

79.

The Supreme Court found that a party running a school could be vicariously liable for

a teacher who sexually assaulted a child if there was sufficient evidence that such a party was

in control of the activities of such a teacher; that religious orders were unincorporated

associations, lacking in legal personality and therefore not capable of suing or being sued; that

the members of an order could be vicariously liable for acts of abuse that were sufficiently

closely connected to the object and mission of the order; that members of unincorporated

associations who were members at the time of the tortious acts being committed by another

member could be liable for such tortious acts but members who joined afterwards could not;

and that as the first defendant did not plead or adduce any evidence that he was not a member

of the religious order at the time of occurrence of the abuse of the plaintiff, the imposition of

vicarious liability on him for the acts of the second defendant was justified. Hickey makes it

clear that if a plaintiff seeks to impose vicarious liability on a religious order for the acts of a

member of the order, he or she must sue the members of the order individually unless there is

a representative defendant.

80.

Further, for the reasons identified at the start of this judgment, I accept the submissions

of the plaintiff that he has no other way of identifying the relevant persons who were Brothers

at the relevant time ­ now some 40 years ago ­ except than by seeking them from the second

named defendant who is the Province leader.

Prejudice to the plaintiff absent the Order sought

81.

The plaintiff has identified one member of the Congregation against whom he can

allege vicarious liability ­ the second named defendant – but wishes to obtain the identities of

the remainder of the Congregation at the relevant time. However, without identifying all or at

28

least the majority of the Congregation at the relevant time, the plaintiff may be disadvantaged

in realising any judgment he may obtain for the following reasons.

82.

First, as discussed in some detail in Hickey, the question of recovery of any award of

damages is a complex one, particularly where the alleged actions may have taken place many

years before. In the present case, the abuse is alleged to have taken place over 40 years ago. As

O’Donnell J. observed, in the context of a discussion about O.15 r.9:

“The appropriate course in such a case is to write to the order or provincial threatening

to sue all individual members of the order unless a defendant is nominated. If that

course is not taken, then all members who can be identified can be joined as defendants.

If however any judgment is obtained against those defendants, the judgments are

individual and whether or not such judgments will be met by insurance, or from assets

which may be held for the benefit of the order more generally, may depend upon the

terms of the insurance, and indeed the terms upon which such assets are held, and

perhaps the willingness and ability of the order to make funds available to satisfy any

judgment against an individual“.

83.

In my view, it is probable that the plaintiff will have improved prospects of recovery if

he obtains judgment against multiple members of the Congregation rather than one or two.

84.

There is another, more technical reason, why the plaintiff may be seriously

disadvantaged if he is ultimately successful but only as against the existing two defendants.

This arises out s.35(1) of the Civil Liability Act 1961 (as amended). This provides: ­

35. (1) for the purpose of determining contributory negligence ­…

(i) where the plaintiff’s damage was caused by concurrent wrongdoers and the

plaintiff’s claim against one wrongdoer has become barred by the Statute of Limitations

or any other limitation enactment, the plaintiff shall be deemed to be responsible for

the acts of such wrongdoer…

29

85.

As identified in Hickey, the reason for this section is to incentivise plaintiffs to sue all

potential concurrent wrongdoers as otherwise, a plaintiff may simply throw all the loss upon

one defendant. O’Donnell J. observes that the section has the capacity to operate harshly in

certain circumstances, including where there are a large number of defendants who may be

concurrent wrongdoers on the grounds of vicarious liability but whom it may be very difficult

to identify and whom the plaintiff may not have the capacity to identify. In such a situation he

notes it may be unfair to reduce the plaintiff’s award for failure to join all potential parties

(paragraph 67). O’Donnell J. notes that s.35(1)(i) might benefit from further detailed scrutiny

and observes that it might be inappropriate to permit a defendant to rely on the failure of the

plaintiff to sue other members of the religious order when knowledge as to the identity of such

members was more clearly within the power and control of the defendant. However, that issue

was not raised in Hickey and therefore not decided.

86.

That discussion serves to show that any reliance upon s. 35(1)(i) by the second named

defendant to reduce any award the plaintiff might obtain could be problematic. But the position

would not necessarily be the same if the first named defendant sought to rely on s. 35(1)(i)

given that no request has been made to him for the requisite information. Moreover, it is not

possible to be sure as to how any such argument would ultimately be resolved. The plaintiff is

in my view potentially at a significant disadvantage in knowing that there are (on his case)

concurrent wrongdoers whom he would like to sue but cannot because of the refusal of the

second named defendant to provide the names of same.

No reason given for decision to withhold names

87.

The second named defendant has failed to give any reason for his refusal to provide the

names of his fellow Congregation members. The second named defendant has been identified

by the plaintiff’s solicitor in the affidavit grounding this motion as the Province leader of the

Congregation of Christian Brothers, European Province and it is averred that he is uniquely

30

positioned as the person with knowledge of the membership of the Congregation of Christian

Brothers in Ireland (paragraph 5). This averment has not been denied. The second named

defendant is entitled to stand on his rights and is not obliged to facilitate the plaintiff by

providing the names of his fellow Brothers during the relevant years; however, his decision not

to engage substantively with the request means that I must proceed on the basis that he is in a

position to provide the relevant information. Moreover, it means that I cannot consider any

matters that he might have put forward mitigating against the information being provided.

88.

I recited at the start of this judgment the letter of 8 June 2019, where the second named

defendant’s solicitors confirmed they were instructed by Mr. Garvey in his personal capacity

only. Submissions were also made to this effect by counsel on his behalf. As identified above,

the second named defendant is entitled to decline to act in a representative capacity. However,

he cannot distance himself from his identity and/or occupation in this way. He does not deny

that he is the Province leader of the Congregation or that he is a Christian Brother. He does not

deny he has access to the information sought. In those circumstances, this curious submission

cannot provide a basis for declining to provide the relief sought.

Interests of the Brothers whose names are sought

89.

As identified by McCarthy J. in Megaleasing, a Norwich Pharmacal order “requires a

balancing of the requirements of justice and the requirements of privacy” [para. 58]. Although

this is not a Norwich Pharmacal order as such, a similar approach is apposite here.

90.

In considering the requirements of privacy, it is undisputed that there were a significant

number of Christian Brothers who were members of the Congregation in Ireland at the relevant

time. Moreover, the identity of the Brothers now sought to be identified was known at the

relevant time. In other words, the order sought will not make known anything that was

unknown during the time period at issue. The collective nature of the Christian Brothers is

relevant here. As observed in Hickey, the court is:

31

entitled to take cognisance of the fact that members of religious orders at that time

normally wore habits of standard design, identifying them as members of orders, and

indeed correspondingly reducing their individuality, while emphasising their part in a

collective” [para. 37].

It is not as if the Brothers were part of some secret society, whose members never expected to

have their identity disclosed. On the contrary, at the relevant time, it would have been clear to

all who interacted with members of the Congregation that they were Christian Brothers.

Accordingly, the order will not impact upon the Brothers’ right to privacy since their identity

as Brothers was not a private matter.

91.

Moreover, the interests of the Brothers are protected in that the information obtained

by this order can only be used by the plaintiff for the purposes of issuing proceedings against

them and for no other purpose and this will be a condition of the order when drawn up.

Conclusion

92.

In the circumstances, I have no doubt in concluding that the order sought here may, in

the words of Finlay C.J., “be of very considerable value towards the attainment of justice“.

Conversely, it seems to me that to allow the second named defendant, who has the relevant

information in his possession, to withhold it with the possible effect of stymying the plaintiff

in his ability to recover (if he succeeds), without providing any reason for such withholding,

would be contrary to the interests of justice. The Supreme Court held in Hickey that individual

members of a congregation may be vicariously liable for sexual abuse carried out by one of

their members: to permit religious orders to withhold the names of their congregations without

justification would allow them to subvert the reasoning in Hickey and would be unfair on a

plaintiff who has no other means of recourse against a congregation.

93.

As I observe above, the thrust of the case law appears to be that inherent jurisdiction,

certainly in the context of discovery, should be used sparingly but not necessarily exclusively

32

on “extreme” or “rare” occasions. Adopting a parsimonious stance towards the grant of this

type of relief, the circumstances of this case appear to me to warrant the relief sought for the

reasons set out above i.e. the plaintiff requires the information sought to prosecute his claim,

he is likely to be prejudiced absent the information, no argument is made that the information

is not within the procurement of the second named defendant, no reason has been given to

justify a withholding of the information and the interests of the Brothers whose names are

sought will not be adversely affected.

94.

Equally, I see no alternative to making the Order sought as the plaintiff has no other

way of obtaining the names and addresses of the members of the Congregation at the relevant

time.

95.

If I am wrong about this and the jurisdiction to direct a concurrent wrongdoer to disclose

the names and addresses of other potential wrongdoers should only be exercised in extreme or

rare circumstances, it seems to me that a situation such as that of the present, where the

Province leader of the Congregation of Christian Brothers in Ireland is refusing to identify his

fellow members of the Congregation during a particular time period, despite the fact that during

that period they were clearly identifiable as Christian Brothers, is rare indeed. Thus, it remains

an appropriate case in which to exercise the jurisdiction.

96.

Accordingly, I order that the second named 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.

Costs

97.

I propose that the costs of the motion should be borne by the second named defendant

given that he has been unsuccessful, with a stay upon same pending the determination of these

proceedings.

33

98.

If either of the parties wish to argue for a different decision on costs, submissions of no

more than 1,000 words should be filed within one week of the date of delivery of this judgment

identifying the reasons for same. If no submissions are received I will make an order in the

terms proposed.

Result:     Application to disclose names and addresses of concurrent wrongdoers pursuant to inherent jurisdiction of the court, application granted.




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