The Christian Brothers are persisting with a much-criticised legal strategy that involves the religious community refusing to provide a nominee to act on its behalf when abuse survivors are suing for damages.
As a result, survivors have to sue all Brothers from the time of the abuse who are still alive, even though most, if not all, had no involvement.
Court records indicate more than a dozen clients of one law firm alone have had to seek orders in recent months compelling the disclosure of the names and addresses of members of the congregation at specific points in time so they can be served.
While the High Court has been happy to grant such orders, the Christian Brothers has said in legal correspondence it cannot provide the addresses of ex-Brothers who have left the congregation, claiming it does not have forwarding addresses for them.
The congregation has declined to provide any names or addresses in the absence of a court order.
In a statement, Brother David Gibson, leader of the European Province of the Christian Brothers, stood over the stance it has taken.
He insisted it was not necessary for it to put forward a nominee in order for claimants to reach settlements and also that it was precluded under the GDPR from providing personal data unless this is ordered by a court.
The controversial strategy was first adopted under the stewardship of Brother Gibson’s predecessor, Brother Edmund Garvey, who retired as province leader in 2022.
It has been criticised by survivors and their lawyers as being obstructive and a mechanism to dissuade victims from seeking compensation.
Its use was highlighted in the case of Ken Grace, who received a public apology and a settlement in 2023 over abuse he suffered at the hands of Paul Hendrick, a former principal of Westland Row CBS in Dublin.
His case lasted four-and-a-half years and involved 25 court appearances before it was resolved.
Brother Garvey refused to act as a nominee or provide the names and addresses of other former Brothers, causing Mr Grace to bring a motion to the High Court to compel the disclosure of the information.
Mr Grace described the legal strategy as a form of “secondary abuse”.
Because the Christian Brothers is an unincorporated association, if it does not provide a nominee it cannot be sued.
The only way around this is to sue all members at the time the abuse is alleged to have occurred, under the doctrine of vicarious liability.
Mr Grace had to sue around 120 Brothers individually.
In the end, the Christian Brothers entered no defence and agreed to a settlement.
Mr Grace was represented by Dublin law firm Coleman Legal Partners.
The legal strategy remains in use under Brother David Gibson.
According to documents exhibited in court, Brother Gibson’s lawyers say they only had authority to accept service of proceeding against him in a personal capacity.
Since the Grace case concluded, Paddy Coleman, Philip Treacy and Diane Treanor – solicitors at Coleman Legal – have obtained disclosure orders on behalf of 14 further clients.
Most of the orders have been obtained in recent months. Five further motions are due to be heard in May.
Among the cases being pursued are actions relating to alleged sexual abuse at schools in Dublin in the 1970s and 1980s.
In an affidavit sworn in one case, where disclosure orders were made by Mr Justice Rory Mulcahy in January, solicitor Diane Treanor said she believed the information sought was readily available or accessible to Brother Gibson but he had refused or neglected to provide it, frustrating the advancement of the proceedings.
In a statement, Brother Gibson said: “The Christian Brothers’ primary focus is to ensure just, timely and appropriate settlements for survivors, without the stress and costs of litigation.
“We confirm there is no requirement to nominate a representative of the congregation in order to reach a settlement agreement with the congregation or to pursue a legal action against an individual Christian Brother.
“Most legal firms, acting on behalf of their clients, engage in mediation and settlement.
“However, a very small number of legal firms have sought to sue every individual member of the congregation and in order to do so, have sought personal data that under GDPR requirements can only be released on foot of a court order. Where this occurs, the data is readily provided.”