Vicarious Liability for Vicars: The Case of Holcombe Rogus

JXH v The Vicar, Parochial Church Council and Churchwardens of the Parish Church of Holcombe Rogus (2023) High Court 3221

This case provides welcome food for thought about the interaction of ecclesiastical law with the secular law of tort (i.e liability for civil wrongs).

The anonymous claimant had been sexually assaulted by the then vicar in 1979-1981. Four decades later he brought a claim for compensation, not against that vicar personally, but against the Church. He claimed that the Church was vicariously liable for the assaults.

Personal liability in tort arises from the tortfeasor’s wrongful act, or his wrongful failure to act. In vicarious liability, by contrast, the tortfeasor is innocent of personal wrongdoing. He is liable only for the wrongdoing of a third party, because of a pre-existing close relationship between them.

Thus it has long been established that an employer can be liable for the wrongful act of an employee, if committed during the course of the employment. It is also established that a vicar – i.e the incumbent of a benefice – does not have an employer. However, the Church can be vicariously liable if it has an employer-like relationship to the vicar, i.e a relationship analogous to that between an employer and an employee.

In this case the claim of vicarious liability failed. The essential reason was that the context of the sexual assaults was too remote from the vicar’s official duties.

On his own initiative, the vicar had set up a small quasi-monastic community in a cottage he owned in the parish, of which he appointed himself ‘superior’. This ‘monastery’ attracted impressionable young men, including the claimant, and gave the vicar his opportunity for sexual predacity.

The court held that it was no part of the vicar’s duty to set up or lead such a community. It was a piece of private enterprise on his part (‘a frolic of his own’, to quote a well-known dictum), so the Church could not be held liable for what went on there.

The learned judge was not wrong when he observed that ‘The peculiar nature of the Church of England and its structure causes [me] difficulties in the legal analysis of the case’ (para 128).  The difficulties are painfully apparent from his judgment. He disclosed that he was himself a former churchwarden and parochial church councillor (para 18). Unfortunately this ecclesiastical background did not save the legal analysis from significant confusion.

Vicarious liability for a vicar raises 2 questions

(1) what are the vicar’s official duties? and

(2) who or what is the correct defendant to the claim?  What ecclesiastical entity is the vicar’s quasi-employer, or nearest equivalent of an employer?

(1) The vicar’s duties are prescribed by canon C24, in precise and specific terms: to pray and preach in his church; administer Holy Communion and the other sacraments therein; to teach the faith, especially to children; confirmation classes; ‘visiting his parishioners, particularly those who are sick and infirm’; and ‘provid[ing] opportunities whereby any of his parishioners may resort unto him for spiritual counsel and advice’.

It is surprising, to say the least, that the judgment does not even mention canon C24.  The canon actually tends to support the judgment. There is certainly nothing in its provisions to authorise or justify the vicar’s ‘monastery’.

That is not the end of the matter, however. S.2(2) of the Parochial Church Councils (Powers) Measure 1956 describes the incumbent’s function in much broader terms than canon C24. S.2(2) suggests that the incumbent should ‘promot[e] in the parish the whole mission of the Church, pastoral, evangelistic, social and ecumenical’.

Mission is a very broad term indeed. Almost anything in the Church can be justified as missionary. Mission is therefore capable of covering a multitude of sins by erring missionaries, with the consequent potential to attract civil liability.

The vicar’s ‘monastery’ was well outside the scope of canon C24, but well within the scope of s.2(2). 

The judgment does discuss s.2(2).   It admitted that the ‘monastery’ was ‘part of the general range [of] the work of the Church of England … promoting the Christian gospel, faith and mission generally’ (para 182). However, it also pointed out (correctly) that the ‘monastery’ had no legal existence in the Church of England, and had no ecclesiastical authority.  It therefore concluded that the balance of the argument was against liability.

It is arguable that this analysis fails to get the measure of s.2(2). The broad scope of S.2(2), ‘the whole mission of the Church’, is intentional.  It is based on a pious and idealistic wish to be open to ‘the wind and fire of the Spirit’. Thus s.2(2)

(1) encourages clergy to engage in diverse missionary projects but

(2) does not require that such projects be specially authorised (e.g by a licence or faculty), or be subject to specific oversight (e.g by a visitor).

If the Church positively encourages missionary projects by clergy, carte blanche, it should arguably not be able to evade liability by pleading that such projects are not a strict official duty. A fortiori the Church should not be able to evade liability by choosing to impose a lax regime of authority for such projects – or indeed no regime at all.  On the contrary, the Church must accept the legal consequences of such naïve trustingness.

(2) The correct Defendant.  As its title implies, the claim of vicarious liability was made, not against 1 ecclesiastical entity, but 3 – the (present) vicar, the churchwardens and the parochial church council (‘the PCC’). 

The 3 entities are, of course, closely linked.  They belong to the same parish.  The vicar is ex officio part of the PCC, as are the churchwardens (so long as they are communicant Anglicans, which they almost always are).

The judgment suggested that ‘there is a misnomer in the pleaded identity of the defendant’ (para 128), and that ‘there was obviously no intention to sue the present vicar or churchwardens’ (para 126).  However, in the case of Wilson v M’math (1819) 161 English Reports 1260, Sir John Nicholl, then Dean of the Arches, observed that ‘the minister, churchwardens and parishioners … is the legal description of a parish in all formal processes’ (p.1263).  (At that time, the parishioners were represented by the parish vestry – PCCs had not yet been established.)

Be that as it may, the PCC in this case, though it denied vicarious liability, apparently accepted that it was the correct defendant to the claim (para 126).  The learned judge was therefore not required to make a ruling to this effect.  But he seems to have had no difficulty accepting that the PCC was indeed the vicar’s ‘quasi-employer’ (cf paras 175 and 189).

It is argued that, notwithstanding the apparent consensus between judge and parties, this view was mistaken.   The PCC was not the correct defendant to the claim of vicarious liability.

There is nothing in ecclesiastical law to suggest that a PCC’s relationship to its vicar is analogous to that of an employer to an employee.  The parish is, of course, the object of the vicar’s employment (or quasi-employment).  But that does not mean that it is his employer. 

The PCC does not appoint the vicar.  Nor does it propose or ‘present’ a candidate for a vacant benefice – the benefice patron does that.  The PCC does appoint 2 representatives, whose consent is required for the appointment to proceed (Patronage (Benefices) Measure 1986, s.11).  As representatives, not delegates, of the PCC, these 2 make their own decision on a proposed candidate.  Thus the PCC’s influence on the appointment of its vicar is at most indirect.

Just as the PCC does not appoint the vicar, neither can it remove him.  The most that it can do is lay a complaint against him (Clergy Discipline Measure 2003, s.10(1)(a)).

Nor does the PCC exercise any control or oversight of the vicar.  The judgment made much of the fact that the PCC had not ‘authorised’ the vicar’s ‘monastery’ (para 169).  However, the legal point is that the PCC has no power to authorise the vicar’s missionary projects.  S.2(1) of the 1956 Measure requires the vicar and the PCC ‘to consult together’.  This suggests that the PCC’s only right was to be consulted about the ‘monastery’ (which, apparently, it was not).  The aforementioned s.2(2) suggests that the PCC’s function is ‘cooperation with the incumbent’.  A duty to co-operate is rather the opposite of a power to authorise.

The only possible control that the PCC can have of its vicar’s missionary projects is financial (cf 1956 Measure, s.4(1)(i) and s.7(1).  It can refuse the use of parish funds and facilities, or impose conditions on their use.  However, in this case, the vicar did not request or receive financial assistance from the PCC.

(And even if the PCC had provided finance, it is hard to see how its trusteeship of parish funds could be translated into liability for the vicar’s sexual misconduct.)

In St Peter, Roydon (1969) 2 All England Reports 1233, the vicar tactlessly and inaccurately asserted that ‘My view is that the [PCC] … is part of my staff’ (p.1235).  The judgment in Holcombe Rogus falls into the opposite error.  It suggests that the vicar is part of the PCC’s staff.  It stands the vicar-PCC relationship on its head.

It is argued that the obvious defendant to a claim of vicarious liability for the vicar – indeed the only possible defendant – is the bishop, not the PCC. 

The bishop appoints the vicar, by giving institution (which he can also refuse to give for good reason).  The vicar makes a declaration of obedience to the bishop (which he certainly does not do to the PCC!) (canon C14(3)).

Canon C18(1) makes clear that the bishop is ‘chief pastor of all that are within his diocese … and their father in God’.  (The latter expression survives in the online version, accessed today.)  This implies a pastoral duty towards victims of sexual abuse by his clergy.

The well-known words of institution ‘accipe curam tuam et meam’ indicate that pastoral care, the cure of souls, is shared between the bishop and the vicar.  Their relationship is comparable to the partnership of a senior and junior partner.  The PCC, by contrast, does not share the vicar’s pastoral care.

As chief pastor, the bishop has oversight of the diocesan clergy, or ‘jurisdiction as Ordinary’ (canon C18(2)).  He is required to ‘get some good knowledge of the state, sufficiency and ability of the clergy …’ (canon C18(4)).  The Clergy Discipline Measure 2003 restates the common law position that ‘the bishop … by virtue of his office and consecration, is required to administer [clergy] discipline’ (s.1).

The churchwardens are the bishop’s officers in the parish.  Although it was not an issue in the case, Holcombe Rogus may prompt reflection on the bishop’s civil liability (if any) for churchwardens who are complicit in sexual abuse, or who turn a blind eye to abuse by the vicar.

The office of churchwarden is probably the most complex in ecclesiastical law.  The Churchwardens Measure 2001 makes clear that the bishop appoints the churchwardens, as he does clergy, by formally admitting them to office (s.6(1)).  However, unlike clergy, the bishop has no control over the choice of candidates.  Churchwardens, though admitted to office by the bishop, are elected thereto by the parishioners (s.5(1)).  Those elected are unlikely to be known to the bishop personally.  And the bishop has no discretion to refuse to admit a validly elected churchwarden.  Vicarious liability for a churchwarden may therefore be difficult to establish.

The Law and Religion blog has just published a useful account of the Holcombe Rogus case.