Fish & Fish Ltd v Sea Shepherd UK & Ors

Joint liability in tort is narrower than accessory liability in crime or equity. It requires a common design, which may be tacit and need not be directed to committing a tort, to secure acts which prove tortious. The alleged participant must also do an act in furtherance of that design. Knowing assistance, supply, close association or approval alone is insufficient. Once a common design is established, the act need only be more than de minimis. It need not be essential, causally effective, significant or performed at the scene. A corporate document, read with the entity’s conduct, may provide powerful evidence that it joined a campaign rather than merely facilitated it.

Fish & Fish claimed damages after one of its tuna-farming vessels and cages were attacked during a campaign conducted by Sea Shepherd Conservation Society. Sea Shepherd UK owned the vessel and was alleged to be liable because Paul Watson acted on its behalf or because it had joined a common design with the other defendants. Hamblen J tried the preliminary issue and answered it negatively in [2012] EWHC 1717 (Admlty). The Court of Appeal considered both the capacity issue and whether Sea Shepherd UK had participated in a common design to carry out acts which became tortious. The jurisdictional position of the other defendants did not fall for decision.

Appeal allowed. The preliminary issue was answered in the appellant’s favour on the common-design basis.

1. Capacity. The Court of Appeal declined to interfere with Hamblen J’s factual conclusion that Sea Shepherd Conservation Society had possession and control of the vessel, conducted the campaign and employed or directed the master and crew. The appellate court emphasised the caution required before reversing findings based on oral evidence, applying the approach in Biogen Inc v Medeva Plc [1997] RPC 1. Lord Justice McCombe considered that there was also a substantial argument that Mr Watson acted in his capacity as a director of Sea Shepherd UK, but the common-design ground made it unnecessary to decide that issue. Lord Justice Mummery agreed with the leading judgment.
2. Common design. Joint tortfeasance requires two elements: a common design, which may be tacit, to secure acts which in the event prove tortious; and an act by the alleged participant in furtherance of that design. The participant need not commit an independent tort. The formulation in The Koursk [1924] P 140 and Unilever Plc v Gillette (UK) Ltd [1989] RPC 583 does not require an express plan or an intention to infringe.
3. Knowing facilitation alone is insufficient. Joint tortious liability is distinct from criminal accessory liability and equitable liability for knowing assistance. The Court followed the approach in Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1999] 1 Lloyd’s Rep 19 and rejected any requirement that the participant’s act be an essential or causally effective part of the tort. The act must be more than de minimis, but physical presence at the scene is unnecessary.
4. Application. The campaign documents showed that interception and violent intervention to free illegally caught tuna formed part of its purpose. Sea Shepherd UK’s authorised Trustees’ Report was powerful evidence that it had joined the campaign. Its processing of campaign funds and assistance with preparations and logistics were acts in furtherance of the common design, not merely passive facilitation. The appeal was therefore allowed on that basis. The conclusion did not mean that every donor or volunteer became a joint tortfeasor; individual conduct would still have to amount to more than facilitation.

• Court of Appeal (Civil Division) allowed the appeal and answered the preliminary issue in favour of liability on the common-design basis: [2013] EWCA Civ 544.
• Queen’s Bench Division, Admiralty Court, Hamblen J answered the preliminary issue negatively after trial: [2012] EWHC 1717 (Admlty).