JGE v The Portsmouth Roman Catholic Diocesan Trust

Vicarious liability is not confined to a contract of employment. It may arise where the relationship between the defendant and the tortfeasor is sufficiently akin to employment.

The court must examine the defendant’s capacity to control the tortfeasor, whether the activities further the defendant’s aims, the tortfeasor’s integration into the organisation, and whether the tortfeasor is carrying on an independent enterprise. Fairness and justice provide a check on the resulting conclusion, rather than a free-standing test.

A diocesan bishop’s appointment, oversight, disciplinary powers and capacity to remove a parish priest were capable of creating such a relationship. Whether particular misconduct was sufficiently connected with that relationship remained a separate question.

The claimant alleged that, while a child living in a convent-run home, she was repeatedly sexually abused by a Roman Catholic priest. She sought to make the diocesan trustees, treated for these purposes as representing the diocesan bishop, vicariously liable.

MacDuff J determined a preliminary issue in the claimant’s favour. The evidence established that the priest held an ecclesiastical office governed by canon law. There was no contract, salary or ordinary managerial supervision, but the bishop appointed parish priests, exercised episcopal oversight and possessed disciplinary, transfer and removal powers under canon law.

The central issue was whether, despite the absence of employment or any contractual relationship, the relationship between the bishop and a parish priest was sufficiently akin to employment to make vicarious liability legally possible. The second-stage question—whether the alleged abuse was sufficiently connected with that relationship—was not decided.

1. Appeal dismissed by a majority. Ward and Davis LJJ held that the law of vicarious liability had developed beyond the confines of a contract of service. A relationship sufficiently akin to employment could satisfy the first stage of the doctrine. Tomlinson LJ dissented.

2. There was no contract of service, or other contract, between the bishop and the priest. The appointment was to an ecclesiastical office governed by canon law, without an intention to create civil legal relations. Holding an ecclesiastical office did not, however, determine the separate question whether the relationship could attract vicarious liability.

3. Per Ward LJ, the relevant inquiry was whether the relationship was so close in character to employment that imposing vicarious liability would be just and fair. Relevant considerations included control and accountability, the centrality and integration of the priest’s activities within the Church’s organisation, and whether the priest operated as an independent entrepreneur. Control did not require detailed direction of daily work.

4. The bishop appointed the parish priest and exercised residual oversight and control. Priests owed reverence and obedience under canon law, while the bishop could impose norms, take disciplinary action and, through prescribed procedures, transfer, suspend or remove a priest from parochial office. The priest’s ministry was central to and integrated within the purposes and organisation of the Church. He was not conducting an independent business at his own risk.

5. Per Davis LJ, the decisive pointers were that the bishop placed the priest in a position over which he retained a meaningful capacity for control, and that the priest’s activities furthered the bishop’s aims and purposes within the diocese. The fact that these incidents arose under canon law rather than the common law was not conclusive against liability.

6. Fairness, justice and reasonableness were a check upon the principled analysis, not an independent basis for imposing liability merely because a defendant could compensate the victim.

7. The decision established only that vicarious liability was capable of arising at the first stage. Whether the alleged abuse was sufficiently connected with the priest’s appointed activities remained for determination at the second stage. Tomlinson LJ would have allowed the appeal because the pleaded relationship lacked sufficient control, agency, benefit and entrusted responsibility.

1. Court of Appeal (Civil Division): By a majority, dismissed the trustees’ appeal and upheld the determination that the relationship between the diocesan bishop and parish priest was capable of giving rise to vicarious liability. Permission to appeal to the Supreme Court was refused.
2. High Court, Queen’s Bench Division: MacDuff J determined the preliminary issue in favour of the claimant on 8 November 2011. No neutral citation is stated in the judgment.