Bishop Wins Court Case to Halt Actions by Three Abuse Survivors

By Mary Carolan
Irish Times
February 28, 2014

http://www.irishtimes.com/news/crime-and-law/bishop-wins-court-case-to-halt-actions-by-three-abuse-survivors-1.1708320

Bishop Leo O’Reilly has won the High Court case halting three actions against him in his representative capacity as Bishop of Kilmore. Photograph: Brenda Fitzsimons/The Irish Times

A Catholic Bishop has won a High Court court halting three actions for damages brought against him in a representative capacity by a man, his sister and another woman who previously settled Northern Ireland court actions for stg ?25,000 each over sexual abuse by paedophile priest Fr Brendan Smyth.

President of the High Court, Mr Justice Nicholas Kearns, today granted an application by Bishop of Kilmore, Dr Leo O’Reilly, for orders halting, on grounds of the previous settlements, the actions brought against him in his representative capacity as Bishop of the Kilmore diocese.

The cases by the three were also brought against Cardinal Sean Brady, who is being sued 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.

Cardinal Brady had not made any similar application to that of Bishop O’Reilly and the proceedings against him remain in being.

In separate cases, the man, his sister and a cousin alleged negligence and breach of duty of care arising from failure by representatives of the Catholic Church over years to monitor and supervise Brendan Smyth and failure to stop his abuse or report it to gardai.

The man was abused by Smyth between 1968 and 1976 and claimed he was unaware, when he settled his Northern Ireland case in 1998, Bishop McKiernan and then Fr Brady had been made aware in 1975 that Smyth was abusing children including himself but failed to alert either gardai or the man’s parents.

In opposing the application, Rossa Fanning, for Bishop O’Reilly, produced media reports from October 1995 which stated Bishop McKiernan had said he was aware in 1975 that Smyth was abusing children.

Counsel for the man said he was unaware when he settled his case in the North that he himself had in 1975 been named to Catholic priests as one of Smyth’s victims.

All three initiated their proceedings in the Irish High Court in 2012.

Today, Mr Justice Kearns said the real issue arising from Bishop O’Reilly’s application was whether the revelation or discovery of the 1975 meetings concerning church investigations into the allegations against Smyth constituted a fresh cause of action and a new and separate injury to the plaintiffs not addressed in the settlements of their Northern Ireland cases.

It was “undeniable” the same physical and psychological injuries occasioned by Smyth’s conduct constituted the damage pleaded in the plaintiffs Northern Ireland cases and the damage pleaded in these proceedings, he said.

The allegations of negligence were also essentially the same and both sets of procedings claimed aggravated damages on the basis the defendants ought to have taken Smyth “out of circulation” when his “proclivities” became known to them.

The judge said he was satisfied a mere exacerbation of existing damage, arising from the discovery of details of the 1975 meetings, did not alter the substance or nature of the damage.

He also ruled lawyers for the plaintiffs were mistaken in suggesting some new cause of action came into being with the revelations of the 1975 meeting.

It was “a matter of utmost importance” that the integrity of settlements of cases, once arrived at and with the benefit of proper legal advice, be upheld, he stressed.

In any event, he considered the “new” or “additional” facts being relied upon were already in the public domain when the case was settled, the judge said.

Media reports made “abundantly clear” that the information concering the 1975 meetings had been in the public domain for some time before the man’s case settled in 1998.

It followed the man and his lawyers were aware, or should have been aware, of all material facts when the settlement was reached. The further detail that the man was identified at a 1975 meeting as being a victim of Smyth was not relevant to the issue as to whether the settlement was properly reached.

On the adequacy of the compensation, he would not second guess a quantification of damages made in a different jurisdiction some time ago, especially when that was made with legal advice and not in ignorance of any material fact, given that matters now relied on as “revelations” were in fact in the public domain at the time, he said.

The judge concluded the whole settlement was properly reached, the man’s claim has been the subject of “an accord and satisfaction” and Bishop O’Reilly was entitled to the orders sought. His ruling applied to the other two cases, the judge added.

The three NI cases had been taken against Smyth himself, the Norbertine order and then Cardinal Cahal Daly as representative of the Catholic Church, the court heard. The Stg?25,000 payments were made by the Norbertines.