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Most religious congregations are unincorporated associations and appoint a nominee to represent the organisation when involved in litigation.
However, the Christian Brothers have been refusing to advance a nominee in cases where people are trying to sue the congregation for historic child sex abuse seeking damages, thus creating significant costs and procedural difficulties for those taking the legal actions.
Last week High Court Judge Mary Rose Gearty said she agreed that the leader of the congregation, Br David Gibson, had no legal obligation to put himself forward as a nominee for the litigation but said there was “a moral obligation” to put himself forward as the nominee.“Obviously, I can’t enforce that,” she added.
“But I find it almost unbelievable that with the name ‘Christian Brothers’, the leader of that organisation doesn’t consider it a moral obligation to ... let himself be the nominee ... I am finding that a morally extraordinary decision.”
In a similar way to other cases being litigated, the individual taking the case before the court on Wednesday is obliged to notify all those who were members of the congregation at the time he was sexually assaulted.
The man says he was sexually assaulted and raped in the 1970s while attending a primary school in Kilkenny run by the brothers.
The congregation has said 340 members of the congregation at the time of the abuse have since left, that it does not have contact details for most of them and that many are likely to have since died.
When the case came before Gearty on Wednesday, she told the man’s barrister, Andrew Nugent, instructed by Coleman Legal, that he can bring an ex parte application – where only one side is represented – next week for an order that would allow notice to be served on the former brothers by way of an advertisement in a national newspaper rather than trying to contact each one directly.
The notice would carry the names of the 340 former brothers and the dates on which they left the congregation.
Such orders, if granted in this case and others, would significantly reduce the difficulties litigants are facing when suing the Christian Brothers in cases of historic sex abuse.
In the case before Gearty, the man is seeking damages for being raped and sexually assaulted by then Christian Brother Liam Coughlan in the CBS primary school on Stephen Street, Kilkenny.
Gearty told Nugent he could also make similar ex parte applications next week in three other sexual assault cases where men are also seeking damages from the congregation.
One of these involves assaults by Coughlan in the Kilkenny school, while another involves assaults by Br Martin O’Flaherty (74), who was jailed last year for multiple sexual assaults on former pupils in the same school.
The third involves a plaintiff seeking damages for sexual assault by former Christian Brother Jack Manning (89) while the plaintiff was a primary school pupil at CBS Westland Row in Dublin.
Manning was jailed last year for sexual assaults on boys at the school in the 1970s.
In 2023 Coughlan (90) was jailed for multiple counts of sexual assault on pupils at the Kilkenny school, including the man who is taking the case before Gearty.
Earlier this month Coughlan was found guilty of sexually assaulting pupils at the CBS primary school on Patrick Street in Portarlington, Co Offaly, in the 1980s. He is due to be sentenced on Friday.
A 2024 report, the Scoping Inquiry into Historical Sexual Abuse in Day and Boarding Schools Run By Religious Orders, said it had been told by the Christian Brothers that its files recorded allegations of historic sexual abuse by 303 adults working in its schools, of which 255 were members of the congregation, with the rest being lay teachers.