Court Halts Actions over Brendan Smyth Child Sex Abuse
By Mary Carolan
November 12, 2015
|The Court of Appeal has halted three actions for damages brought against a Catholic Bishop in a representative capacity over the church’s alleged failed to act to prevent paedophile priest Fr Brendan Smyth sexually abusing children. Photograph: Colin Keegan/Collins.|
The Court of Appeal has halted three actions for damages brought against a Catholic Bishop in a representative capacity over the church’s alleged failure to act to prevent paedophile priest Fr Brendan Smyth sexually abusing children.
The three judge court on Thursday upheld a High Court decision stopping separate actions by a man, his sister and a cousin against the Bishop of Kilmore, Dr Leo O’Reilly, as representative of the Kilmore diocese.
The plaintiffs had also sued Cardinal Sean Brady in his personal capacity arising from his role as part-time secretary to former Bishop of Kilmore, Francis McKiernan, during a church investigation in 1975 into complaints about Smyth.
While Cardinal Brady had not made a similar application to Bishop O’Reilly, legal sources suggest the judgment means he too cannot be pursued by the plaintiffs.
The three previously settled Northern Ireland court actions for Stg ?25,000 damages each arising from being sexually abused as children by Smyth but claimed those settlements did not adequately compensate them.
They also said they were unaware of meetings which, they alleged, showed Catholic church representatives were made aware of Smyth’s abuse in 1975 but failed to act to stop it. The knowledge of those meetings exacerbated their injuries, they said.
In proceedings initiated in 2012, they alleged negligence and breach of duty of care over failure by representatives of the Catholic church over years to monitor and supervise Smyth and failure to stop his abuse or report it to the Gardai.
The man was abused by Smyth between 1968-76 and claimed he was unaware, when settling his Northern Ireland case in 1998, Bishop McKiernan and the then Fr Brady were made aware in 1975 that Smyth was abusing children, including the man, but failed to alert either gardai or the man’s parents.
In opposing the application, Rossa Fanning BL, for Bishop O’Reilly, produced media reports from October 1995 to the High Court which stated Bishop McKiernan had said he was aware in 1975 Smyth was abusing children.
The three appeal court judges upheld the decision of High Court President Mr Justice Nicholas Kearns halting the cases and expressed sympathy with the plaintifts.
Mr Justice Michael Peart, giving the judgment with which Ms Justice Mary Irvine and Mr Justice Gerard Hogan agreed, noted the “very tragic background” to the cases. With “great regret” because of the “sympathy and empathy” he had with the three “for obvious reasons”, the court must dismiss their appeals.
The court welcomed Mr Fanning’s statement the Bishop was not seeking his costs of either the High Court or appeal court against the plaintiffs.
In his judgment, Mr Justice Peart said the real issue for determination was whether the revelation or discovery of the 1975 meeting constitutes a fresh cause of action and a new and separate injury not addressed by the NI settlements.
The High Court was correct Bishop O’Reilly was sued as an institutional defendant in these cases and was sued in the same institutional capacity as Cardinal Cahal Daly had been sued in the Northern Ireland cases. There was “no meaningful distinction” derived from the different nomenclature for the defendants adopted in the legal procedings in both jurisdictions.
The settlements of the NI cases discharged not only the named defendants in those cases but also “any third party in connection with each and every one of the complaints made”.
The three NI cases were taken against Smyth himself, the Norbertine order and Cardinal Cahal Daly as representative of the Catholic Church. The Stg?25,000 payments were made by the Norbertines.
In the later cases brought here, the three said they suffered significant exacerbation of their previous psychological inuries as a result of revelations of the 1975 meetings about Smyth involving members of the Church.
While extending “the greatest sympathy” to them, the High Court had correctly found what they have endured must be considered to be an exacerbation of the injuries suffered by them as a result of the abuse itself, which was subject of the earlier NI proceedings, Mr Justice Peart said.
The evidence showed that after the three became aware of the 1975 meetings, “and aware no action was taken to prevent the appalling abuse from which they and others later suffered so severely”.
This pain and suffering, “while completely understandable and of a kind which no human being should ever have to endure”, was directly related back to the original acts of abuse by Smyth subject of the NI cases, he said.
The judge noted the three argued the damages secured in the NI cases were inadequate but they accepted them for reasons including advice they had no case against Cardinal Daly and neither the Norbertine Order nor Smyth had funds.
Cases are settled regularly for less than full value and there are many reasons for that, the judge said.
A party who settles their case does so, except in “most exceptional” circumstances, for all time, regardless of facts or information which later come to light unless a clear intention to the contrary to evident fromn the signed settlement.