James Counsell QC and Ben Bradley successful in Jehovah’s Witness Adult Sexual Abuse Appeal

In a judgment handed down today, the Court of Appeal has held the Trustees of the Barry Congregation of Jehovah’s Witnesses liable for an act of rape committed by one of its elders, against an adult member of its congregation. James Counsell QC and Ben Bradley appeared on behalf of the successful Respondent to the appeal.

The Court heard that the claimant, known as BXB, had been a member of the Barry congregation of Jehovah’s Witnesses and had been instructed by an elder of that congregation to provide support and a “shoulder to cry on” for the elder’s son, Mark Sewell, also an elder of the congregation, whom was suffering from depression.  Mark Sewell abused his position as an elder first by attempting to engage BXB in intimacy and finally, when drunk, raping her when she came with her family to support him at his home.  It was only some years later, when she discovered that Mark Sewell had been taking advantage of his position as an elder to abuse others, including two of his own young nieces, that she went to the police and gave evidence in a crown court trial.  Mr Sewell was convicted of rape and other sexual offences and is currently serving a sentence of 14 years in prison.  In a judgment handed  down on 30 January 2020, Chamberlain J had found for BXB at first instance.

The Court of Appeal confirmed that the well-defined principles of vicarious liability should apply to the acts of Elders in the Jehovah’s Witness organisation. A late attempt on the part of Jehovah’s Witnesses to argue that such issues were non-justiciable (for fear of allowing the Court to determine matters of religious doctrine) was rejected by the Court of Appeal. Applying Shergill v Khaira [2015] AC 359, the Court of Appeal accepted that a court can treat a religious dispute as justiciable “where the determination of the dispute is necessary in order to decide a matter of disputed legal right.”

The court applied the two-stage test initially set out in Various Claimants v Catholic Child Welfare Society and others [2013] 2 AC 1, and thereafter developed in the subsequent case law. The two-stage test requires the Court to consider:

1. The relationship between the tortfeasor and the parties said to be vicariously liable to determine whether it is one that is capable of giving rise to vicarious liability (stage 1);
2. The connection that links the relationship between those two parties and the act or omission of the tortfeasor (stage 2).

The Court of Appeal confirmed, in a manner which may be of wide application in other cases of sexual abuse, that the two-stage test (which to date has often been applied in cases involving the sexual abuse of children) “…must be equally applicable to cases involving the sexual abuse of adult victims”.

The full judgment in Barry Congregation v BXB is available here.

This is the second case in which James and Ben have successfully recovered damages against the Jehovah’s Witnesses. In A v The Trustees of the Watchtower Bible & Tract Society [2015] EWHC 1722 (QB); [2016] EWCA Civ 1026, Globe J held the organisation vicariously liable for abuse perpetrated against a child on the part of one of its ministerial servants. On that occasion, the Court of Appeal refused permission to appeal at an oral hearing.

Find out more

James Counsell QC and Ben Bradley are regularly instructed (often together) on large, novel and high profile non-recent sex abuse claims. They are currently instructed in a number of high-profile cases being brought against Premiership and other professional football clubs which are listed for trial later this year and in early 2022.

Further details of their respective practices can be obtained from their clerks, Graham Woods and Paul Barton.

News 15 Mar, 2021