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Ms Justice Mary Rose Gearty said Brother David Gibson had made a “morally extraordinary decision” to refuse to act as a nominee for the congregation for the purpose of dealing with such lawsuits.
The refusal by him and his predecessor, Brother Edmund Garvey, to do so has made it much harder for survivors to progress damages claims.
As an unincorporated association, the Christian Brothers cannot be sued if it does not provide a nominee.
The only way around this is for a survivor to sue everyone who was a member of the community at the time they were abused, under the doctrine of vicarious liability. This has created significant difficulties for victims, not least because the Christian Brothers will only release the names of members on foot of a court order.
To further complicate matters, Brother Gibson has also insisted he does not have addresses for former brothers who are no longer members of the religious community, leaving victims with no obvious means of tracking them down. Critics of the controversial legal strategy claim it is designed to protect the congregation’s assets.
Figures compiled by the Charities Regulator indicate the Christian Brothers had net assets of €54.8m in 2024.
The strategy came into focus this week when a victim of paedophile former Christian Brother Liam Coughlan made an application to the High Court.
The man was seeking an order compelling the release of information that would assist his lawyers locate former brothers so they could be served, in circumstances where Brother Gibson had refused to act as a nominee.
Ms Justice Gearty accepted there was no legal obligation on Brother Gibson to do so, but said it was “a morally extraordinary decision”.
The judge said it was “almost unbelievable” that the provincial leader of the Christian Brothers “doesn’t consider it a moral obligation to nominate, to let himself be the nominee, when there would be no personal opprobrium visited at his door whatsoever”.
“There is a moral obligation but, obviously, I can’t enforce that,” she said.
The victim’ s counsel Andrew Nugent, who appeared instructed by solicitor Philip Treacy of Coleman Legal, said Brother Gibson had “flatly refused” to act as a nominee or to accept liability and had stated that any proceedings would be fully defended.
As a result, his client had to secure a court order for the release of the names of all members of the order at the time of the abuse. Details of 94 current members were produced.
Mr Nugent said he expected that none of those men would enter an appearance after being served, necessitating his side to file motions for judgment in default of an appearance against each of them. Mr Nugent said the names of 364 former members had also been provided, each of whom would also have to be served.
However, Brother Gibson had insisted he did not have information on their whereabouts, counsel said.
Brother Gibson’s barrister Isabelle Aylmer, appearing instructed by Frank Buttimer & Company, said Mr Nugent was essentially accusing her client of frustrating the efforts of the plaintiff.
But Brother Gibson could not just release personal information of more than 300 former brothers “on a whim”, she said.
In response, Ms Justice Gearty said Brother Gibson “could solve all the privacy issues for all of these 300-plus members by simply acting as nominee ”.
The judge said the flat denial of responsibility, in circumstances where Coughlan has been convicted of sexually abusing a child, “struck me as interesting”.
Ms Justice Gearty also said she was “very concerned” about the amount of court resources that were being taken up and that she considered “some” of Brother Gibson’s approach to matters “to have been obstructive”.
The judge said she was considering narrowing the order sought to one compelling the disclosure of email addresses and telephone numbers for former members.
Ms Justice Gearty adjourned the matter to allow Ms Aylmer take instructions on whether Brother Gibson could comply with an order in those terms for all of the former members.
The judge indicated that if Brother Gibson could not do so, then some former members may have to be served via a national newspaper notice.
The legal strategy was previously highlighted in the case of Ken Grace, who received an apology and a settlement in 2023 over abuse suffered at the hands of Paul Hendrick, 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, the provincial leader at the time, refused to act as a nominee, forcing Mr Grace to sue 120 Brothers individually.
The plaintiff in the case before Ms Justice Gearty was abused by Liam Coughlan (90) while attending school in Co Kilkenny in the 1970s.
In 2023, Coughlan, of Pine Grove, Tramore, Co Waterford, received two jail terms, of three years and two months and four-and-a-half years, for 49 counts of indecent assault.