Fish & Fish Ltd v Sea Shepherd UK & Anor

Liability as a joint tortfeasor requires more than knowingly aiding, facilitating or supporting another’s tort. The defendant must join in the commission of the tort pursuant to a common design and be so involved that the infringing act becomes its own. A common design may be tacit and need not be a design to commit an infringement, provided the parties combine to secure acts which prove to be infringements. The court assesses the defendant’s actual participation, including whether its contribution materially facilitated the tort. Remote, general or administratively supportive involvement is insufficient.

The claimant operated an offshore bluefin tuna farm and sued SSUK in trespass and conversion after the vessel STEVE IRWIN rammed a tuna cage and fish were released during Operation Blue Rage. The trial concerned preliminary issues ordered by Flaux J: whether the vessel’s master and crew acted for SSUK, and whether SSUK was liable as a joint tortfeasor through a common design with the other defendants. The court assumed, for present purposes, that tortious acts had occurred. The jurisdiction challenge brought by the other defendants was stood over pending determination of SSUK’s responsibility.

1. Capacity. The vessel was legally owned by SSUK but was in the possession and control of Sea Shepherd Conservation Society. The evidence showed that SSCS funded, operated, maintained and deployed it, selected campaigns and volunteers, and paid the crew. The Blue Rage campaign was an SSCS campaign, and Watson acted as SSCS’s agent. He was not acting for SSUK merely because he was one of its directors and the vessel was registered in SSUK’s name.
2. Common design. Persons may be joint tortfeasors where their respective contributions to a tort are made in furtherance of a common design: The “Koursk” [1924] P 140 and CBS Songs v Amstrad [1988] AC 1018. The agreement may be tacit and need not be an agreement to infringe. It is sufficient that the parties combine to secure acts which prove to be infringements, but the defendant must join or share in the commission of the tort.
3. Knowingly aiding or facilitating a tort does not itself create tortious liability. Liability may arise where the assistance forms part of a common design and the defendant is so involved that the infringing act is made its own. The court applied the principle stated in Sabaf v Meneghetti [2002] EWCA Civ 976; [2003] RPC 14, approved and applied in Generics v Lundbeck [2006] EWCA Civ 1261.
4. SSUK’s contributions were remote and of minimal importance. It did not make the vessel available, recruit the relevant crew, pay the Blue Rage crew, fund the campaign specifically, or participate in the attack. The campaign contemplated possible violent intervention but did not necessarily require tortious conduct. SSUK was therefore not sufficiently involved to make the infringing act its own and was not a joint tortfeasor. The preliminary issue was answered in the negative.