The Supreme Court decision in the Irish case of Hickey v McGowan and Cosgrove  IESC 6 has important consequences for members of unincorporated associations. The background to the case involved a finding of sexual abuse having been committed against the plaintiff while a student at a Marist National School from 1969 to 1972. The second defendant, a Marist Brother, was found to have abused the plaintiff in the course of his employment as a teacher at the school. The first defendant was the Provincial of the Marist Order when proceedings were initiated and was sued in a representative capacity.In considering the legal status of the Marist Order, O’Donnell J said the starting point must be that the law considers such a religious order to be an unincorporated association. This was described as stemming from the common laws unwillingness to recognise the Catholic Church as a legal entity in its own right. Therefore, the Marist Order, as an unincorporated association could not be treated as a body corporate and, in the absence of agreement or a court order, the first defendant could not be sued as a representative of the Marist Order.
The Supreme Court held the plaintiff was abused by the second named defendant who was a member of the Marist Order, and that the first named defendant, as a member of the Marist Order during the period of the wrongdoing, was vicariously liable. It is important to note the Courts finding that a member, at the time of the wrongdoing, should be held vicariously liable. In contrast, a member who joins after the wrongdoing would not be held liable. The judgment is important in highlighting the exposure to liability of individuals who were members at the time of the wrongdoing. The judgment makes clear that individual members of unincorporated associations, who are without fault or knowledge of wrongdoing, may be held personally liable for the wrongful acts committed by another member during the period of their membership.
The Supreme Court decision has important consequences for members of unincorporated associations arising from the acts of other members. The broader application of this decision to associations such as religious organisations, sports clubs, voluntary organisations and societies means appropriate planning, protocols and oversight within unincorporated organisations is essential to prevent wrongdoing.
Author Adrian Carey