Three people sexually abused by paedophile priest Brendan Smyth want the Supreme Court to permit them sue a Catholic Bishop here over the church’s alleged failure to act to prevent Smyth abusing children.
If the church kept “under wraps” facts that would have identified Smyth as being an abuser of children, that is a matter of “significant public importance” entitling his side to appeal to the Supreme Court, Michael Counihan SC, for the three, said.
The Court of Appeal last November granted Bishop Leo O’Reilly orders halting the three actions brought here against him, in his capacity as representative of the Kilmore diocese, over the church's alleged failure to move to stop Smyth’s abuse.
The three – a man, his sister and a cousin - settled Northern Ireland court actions in 1998 for Stg £25,000 damages each over being sexually abused over years as children by Smyth.
The NI cases were against Smyth himself, the Norbertine order and then Cardinal Cahal Daly as representative of the Catholic Church. The Stg £25,000 payments were made by the Norbertines.
The three said it was represented to them in 1998 the Norbertines had limited assets to satisfy any awards and contend the settlements did not adequately compensate for the damage inflicted on them.
They say, when they agreed the NI settlements, they were unaware of meetings allegedly showing church representatives were told in 1975 of Smyth's abuse, including abuse of one of the the three, but failed to act to stop it.
In their actions here, initiated in 2012, the plaintiffs sued Bishop O'Reilly as representative of the diocese of Kilmore and also sued former Cardinal Sean Brady 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.
While Cardinal Brady did not make a similar application to that of Bishop O'Reilly, legal sources believe the Court of Appeal’s decision means he too cannot be pursued by the three.
An appeal against a Court of Appeal decision can only be brought to the Supreme Court if the latter decided the case meets certain criteria, including raising issues of significant public importance.
Today, Mr Counihan argued his clients' cases arose from “very sinister and nefarious activities” of Smyth and involve important issues including about the church’s duty of care and the psychological effect on his clients when they later learned about the 1975 meetings.
His side contended, had information about Smyth “targeting” his “nefarious intentions” towards the family of one of the three been disclosed by the church in 1975, the subsequent assaults on the three would have been avoided, he argued.
The informants to the church's inquiry into Smyth's abuse were boys who, at the end of the inquiry, were “sworn to secrecy” on "religious oath" not to reveal the information they were giving and told it would be sinful to reveal to others what they knew Smyth was doing, counsel said.
"The knowledge is much deeper than the church is willing to own," he added. "If the settlements are so good and clear on their face, why is the church so afraid to go behind them?" These matters should have been put before the High Court but the "lid" was kept on them.
Otehr issues of public importance include whether Bishop O'Reilly, who was not a party to the NI settlements, can gain the benefit of those, counsel said.
Opposing the application, Rossa Fanning BL, for Bishop O’Reilly, said, while his side accepted the fact of child sex abuse by a “notorious” abuser is of public importance, the legal issues raised here were not of public importance.
The High Court and Court of Appeal had ruled in favour of halting the cases against Bishop O’Reilly who had met the costs of those two hearings and also had not sought costs against the three, counsel said. It was not in the interests of justice the Bishop should have to face another court hearing.
In this case, the three did not dispute they had signed the NI settlements on legal advice, Mr Fanning said. A trial court and competent appellate court also found there were "unambiguous" prior settlements entered into and no issues had been raised in either of those courts concerning whether those settlements had been proven, he added.
The issue is not where a settlement is entered into but the effect of that under the law here, he said. These were valid and final settlements and the principle of finality of settlements must be observed.