Sea Shepherd UK v Fish & Fish Limited

Accessory liability as a joint tortfeasor requires more than knowing facilitation. The defendant must provide assistance which is more than trivial and must do so pursuant to a common design with the primary tortfeasor to commit the act which constitutes the tort.

The common design may be tacit, conditional and untargeted. The accessory need not know that the act is tortious or intend harm to a particular claimant. Whether the assistance crosses the de minimis threshold is a fact-sensitive evaluation. An appellate court should not substitute its own assessment where the trial judge’s conclusion was reasonably open on the findings.

Fish & Fish Limited alleged that conservationists had damaged a tuna cage and released its fish during a Mediterranean campaign. It claimed that Sea Shepherd UK was jointly liable because it shared the campaign’s design and assisted through fundraising and volunteer recruitment.

Hamblen J dismissed the claim against the appellant: [2012] EWHC 1717 (Admlty). The Court of Appeal reversed that decision and held the appellant liable on the assumed basis that the incident was tortious: [2013] EWCA Civ 544. The central issues were the elements of accessory liability in tort and whether the trial judge was entitled to regard the appellant’s contribution as no more than de minimis.

By a majority, allowing the appeal and restoring Hamblen J’s order.

1. Per Lord Toulson, Lord Neuberger and Lord Kerr, accessory liability requires assistance in the commission of the tort and a common design to do or secure the doing of the acts which constitute it. Mere facilitation, even with knowledge, is insufficient. The assistance must further the tort and must be substantial only in the sense that it is more than de minimis or trivial: paras 21, 55–60 and 87–89.

2. Per Lord Neuberger, the claimant need not prove that the tort depended upon the assistance, that the accessory contributed as much as the primary tortfeasor, or that the accessory knew the act was tortious or intended harm to a particular claimant. A common design may be inferred. Conditional or untargeted intent may suffice, but participation in a generally lawful activity does not suffice merely because it might be performed tortiously: paras 57–60 and 65–69.

3. Per Lord Toulson and Lord Neuberger, the appellant knew that the campaign contemplated intervention against property and shared the relevant common design. The decisive failure was the conduct element. Its recruitment activity was insignificant, while the parent organisation had conceived, produced, circulated and paid for the fundraising mailshot. The appellant’s role was essentially to receive £1,730 and pass it to the intended recipient: paras 26–27 and 67–80.

4. Per Lord Neuberger and Lord Kerr, whether that contribution exceeded the trivial threshold was a fact-sensitive evaluation. The trial judge was entitled to find that it was minimal and played no effective part in the alleged tort. The Court of Appeal should not have substituted its assessment: paras 70–80 and 82–90.

5. Lord Neuberger, supported on this point by Lord Kerr, cautioned that describing a participant as having made the tortious act his own could become circular and place an unsafe gloss on the common-design requirement: paras 59 and 90.

6. Lord Sumption and Lord Mance dissented on application, not principle. They considered that the authorised fundraising assistance and resulting £1,730 were legally more than de minimis, so they would have dismissed the appeal: paras 49–52 and 91–101.

1. United Kingdom Supreme Court: By a 3–2 majority, allowed the appeal and restored Hamblen J’s order: [2015] UKSC 10.
2. Court of Appeal: Allowed the claimant’s appeal and held the appellant jointly liable on the assumption that the incident was tortious: [2013] EWCA Civ 544; [2013] 1 WLR 3700.
3. High Court: Hamblen J decided the preliminary issue for the appellant, dismissed the claim against it, and set aside service on the other defendants out of the jurisdiction: [2012] EWHC 1717 (Admlty); [2012] 2 Lloyd’s Rep 409.