In 2019 the Commission began work on its project concerning the liability of unincorporated associations (5th Programme of Law Reform, Project 12).

The 2017 decision of the Supreme Court in Hickey v McGowan[1] has identified the need for a review of the civil liability of unincorporated associations. The plaintiff alleged that he had been sexually abused between 1968 and 1972 by a member of the Marist Order of Religious Brothers, an unincorporated body. The Court held that, while the plaintiff was entitled to seek and obtain judgment against individuals who were members of the Order between 1968 and 1972 on the grounds of their vicarious liability as a group, he could not obtain judgment against the Order as such. The likely effect of this was that the plaintiff would not obtain judgment against the current assets of the Order.

The decision in the Hickey case reflects the long-established common law view that an unincorporated body, which also includes many sporting clubs, has no separate legal character distinct from its members. Thus, in Murphy v Roche and Ors[2], the High Court held that the plaintiff, a member of a GAA club who fell and injured himself at a dance on the club’s premises, could not sue the club because he would, in effect, be suing himself. It has been suggested that this exclusion from civil liability of unincorporated associations is difficult to reconcile with the right to equal treatment under Article 40.1 of the Constitution and the right of access to the courts under Article 40.3 and under Article 6 of the European Convention on Human Rights[3]. By contrast, criminal liability may be imposed on an unincorporated club, at least in respect of statutory offences. Thus, in Director of Public Prosecutions v Wexford Farmers Club[4], the High Court held that the defendant club could be convicted for an offence under the Intoxicating Liquor Act 1988, which applies to a “person” and which was defined in the Interpretation Act 1937 (and now in the Interpretation Act 2005) as meaning both a corporate body and an unincorporated body of persons.

The project will therefore address: whether and when separate legal personality may be ascribed to unincorporated associations; and whether members should be able to sue their own unincorporated associations, including sports clubs. The project may also address whether there is a need for greater clarity as to the criminal liability of unincorporated bodies.