On 13 and 14 February 2023 the Supreme Court heard the appeal in the case of BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses. This was a further opportunity for the Justices of the Supreme Court to consider vicarious liability in respect of faith bodies.

Mrs B and her husband were members of the Barry Congregation of Jehovah’s Witnesses, as were Mark Sewell and his wife. Mark Sewell was an elder (one of the spiritual leaders of the congregation). The two couples were friends: they went to each other’s houses, their children would play together and they spent holidays together. In April 1990 both couples went pioneering (door-to-door evangelising) before returning to Mark Sewell’s house. Later that day Mark Sewell raped Mrs B in a back room.

She reported the rape in 1991 but was not believed by the elders’ representatives. She said the whole investigative process was traumatising. Mark Sewell was later expelled from the Congregation for unrelated reasons. Mrs B reported the matter to the police and in 2014 Mark Sewell was convicted of raping her and indecently assaulting two other women.

She then brought a claim against Watch Tower (the worldwide Jehovah’s Witnesses body) and the trustees of the Barry Congregation (the local organisation). The Watch Tower agreed to indemnify the Congregation. Mrs B’s claim succeeded at first instance (BXB v Watch Tower and other [2020] EWHC 156) and on appeal (Trustees of the Barry Congregation v BXB [2021] EWCA Civ 356). The Trustees appealed.

The test for vicarious liability is a dual one: stage 1 (is the relationship between tortfeaser and defendant – or employee and employer – “akin to employment”) and stage 2 (is the tort “closely connected” to that relationship?). The test had been considered by the Supreme Court over many years, most recently in 2020: Barclays Bank (stage 1) and Morrison (stage 2). The same justices heard this case. Submissions addressed how vicarious liability applies to religious organisations, and cases of sexual abuse, as well as abuse to children/vulnerable persons or those living in institutions. (This is called ‘tailoring’: i.e. refining the concept to specific situations such as sexual abuse).

On stage 1, submissions focussed on two aspects: who was Sewell’s ‘employer’ and was the relationship akin to employment? In order to identify the ‘employer’ the justices enquired about the structure of, and relationships between, the various organisations that constitute the Jehovah’s Witnesses. They pointed out that this analysis had been missing from the decisions at first instance and on appeal. They also looked at the role of elders, the scope of their powers and authority over members of the Congregation, and whether activities were assigned to elders.

On stage 2, submissions focussed on what was required to characterise a ‘close connection’. They looked at risk, location and circumstances surrounding the rape, including whether Mrs B (an adult woman) was truly autonomous or not on account of the demands of her faith.

The Supreme Court decision will be published later this year. It will be interesting to see if the Supreme Court opts for a ‘universal’ concept or whether it will tailor it to specific organisations or types of harm.