Case Comment: Sea Shepherd UK v Fish & Fish Ltd  UKSC 10
07 Tuesday Apr 2015
This judgment contains a useful summary of the law on accessory liability in tort. This principle is necessarily fact-sensitive, and so although the key cases are discussed they come with a warning that each case must be considered on its own merits. It is interesting, therefore, that where the dissenting judges differed from the majority was not on a question of law but on the application of that law to the facts of the case.
The majority overturned the decision of the Court of Appeal, ruling that the first instance judge had been entitled to find that Sea Shepherd UK’s (“SSUK’s”) actions were not sufficient for it to be liable as a joint tortfeasor.
SSUK is the UK branch of the Sea Shepherd Conservation Society (“SSCS”), an organisation based in the USA. In June 2010, a boat named the ‘Steve Irwin’, beneficially owned and operated by SSCS, was used as part of a campaign called ‘Operation Blue Rage’ through which SSCS hoped to disrupt illegal tuna fishing. The Steve Irwin rammed and tore open cages belonging to Fish & Fish Limited, freeing the live bluefin tuna which Fish & Fish were attempting to transport to Malta.
SSUK has only one employee, who was not on board the Steve Irwin. Although the Steve Irwin was registered under the name of SSUK, it was beneficially owned and controlled by SSCS (this finding was not challenged on appeal). The acts by which SSUK contributed to Operation Blue Rage were by approving a fundraising mailshot (designed, organised and paid for by SSCS), as a result of which they received £1,730 in donations, which were passed to SSCS. The mailshot stated that SSCS intended to “seize, cut, confiscate and destroy every illegal tuna fish net we find”. SSUK also passed on the names of two people who contacted them about volunteering, who then travelled to France and did a day’s work on the Steve Irwin.
Fish & Fish brought the action against SSUK and attempted to join SSCS and Captain Paul Watson (the founder of SSCS) to the action, on the basis that SSUK had joined with SSCS and Mr Watson in a common design. A preliminary issue trial was held to determine whether SSUK was liable as a joint tortfeasor for the damage suffered by Fish & Fish.
At first instance, Hamblen J found that there was no common design to commit a tort, and also that SSUK’s contribution to Operation Blue Rage had not been significant. The facts of the case and additional information about the subsequent Court of Appeal judgment are set out in our Case Preview.
In determining liability as a joint tortfeasor, it had to be established: (1) whether SSUK had assisted SSCS and Mr Watson with the commission of a particular act; (2) whether this assistance was in pursuance of a common design that the act be committed; and (3) whether the planned act was, or turned out to be, tortious. If these elements were met then SSUK would be liable as a joint tortfeasor (for the tort itself rather than just the assistance).
Lord Kerr characterised the key question before the Supreme Court as whether it had been open to Hamblen J to conclude that SSUK’s facilitation of SSCS’s alleged tortious activity amounted to no more than a de minimis contribution.
Hamblen J’s findings of fact were not challenged.
Majority Supreme Court judgments
Lord Neuberger stated that a defendant should not escape liability simply because his assistance is minor compared to the actions of the primary tortfeasor, or indirect so far as any consequential damage to the claimant is concerned. The claimant does not need to show that the tort could not have happened without the assistance of the defendant. Lord Neuberger agreed with Lord Sumption (dissenting) that, once the assistance is “more than trivial”, the proper way of reflecting the defendant’s minor contribution “is through the court’s power to apportion liability”.
Lord Neuberger noted that mere facilitation is not enough; there must be a common design to perform the act constituting or giving rise to the tort. However this does not need to be an equal contribution to the primary tortfeasor. Lord Toulson noted that, although Sabaf SpA v Meneghetti SpA  EWCA Civ 976 referred to the joint tortfeasor “making the act his own”, this merely means that “the defendant must have involved himself in the commission of the tort in such a way as to justify the conclusion that he combined with the other[s]” to commit the tort.
It is not necessary that the defendant appreciated the act constituted or gave rise to a tort. Lord Neuberger stated, “It is not enough for the claimant to show merely that the activity… was carried out tortuously if it could also perfectly well be carried out without committing any tort. However, the claimant need not go so far as to show that the defendant knew that a specific act harming a specific defendant was intended.” Once a defendant is party to a common design, “he cannot excise from the scope of the design aspects which he knows are included in it, but does not support” (though Lord Neuberger considered there would be exceptions to this rule, for example, where there is honest belief that the primary tortfeasor will not commit torts).
In applying the law, the Court considered the two factors relied upon by Fish & Fish as evidence of SSUK’s involvement in the common design: firstly, SSUK’s assistance in recruiting volunteers for the operation, and secondly the involvement of SSUK in raising money for Operation Blue Rage.
The question for the court was not to assess the facts for themselves, but to assess whether, on the basis of these two factors, Hamblen J had been “entitled to conclude that the extent to which SSUK assisted SSCS was too trivial to bring SSUK within the scope of the tort” (per Lord Neuberger). This question was concerned with the level of restraint that an appellate court should apply in reviewing the decision of a first instance judge involving the exercise of judgment on findings of fact. Citing In re B (A Child) (Care Proceedings Threshold Criteria)  1 WLR 1911, Lord Kerr considered that the issues which justify a very high hurdle for an appeal on an issue of primary fact apply (though with somewhat less force) in relation to an appeal regarding evaluation of facts. Therefore the question was whether Hamblen J’s finding that SSUK’s actions “played no effective part in the commission of the alleged tort” was “insupportable”.
Hamblen J had considered whether the matters relied on by Fish & Fish had any significance to the commission of the tort, as another way of considering whether SSUK had combined to secure the doing of acts which proved to be tortious. Lord Toulson stated that this approach was acceptable: “there is no formula for determining that question and it would be unwise to attempt to produce one.”
None of the judges considered that the recruitment of volunteers had been significant, although Lord Neuberger noted if the recruitment had been more successful his view “may well have been different”.
In relation to the fundraising mailshot, Lord Neuberger stated that the furthest Fish & Fish could go would be to say that SSUK adopted the sending of the mailshot by not objecting to its name being used, and retrospectively adopted it by accepting payments from members of the public: “SSUK was at best a sort of sleeping partner”. He agreed with Lords Sumption and Mance (both dissenting) that £1,730 was not de minimis in itself: “if SSUK had pursuant to its own initiative and at its own expense” prepared and sent out the mailshot, then it would not have escaped liability.
Similarly to Lord Neuberger’s comment regarding on the recruitment of volunteers, Lord Kerr considered that if the donations received and transmitted by SSUK had in fact been substantial, its contribution could be said to be more than de minimis.
Lord Kerr stated that, at the least, “it cannot be said that it was plainly not open” to Hamblen J to reach the conclusion he did, and therefore the Court of Appeal should not have interfered with his judgment to that effect.
However, the Supreme Court disagreed with Hamblen J’s finding that Operation Blue Rage did not amount to a common design which contemplated the committing of tortious acts. Lord Neuberger thought it “clear that [Fish & Fish] did establish that SSUK had sufficient knowledge that tortious acts were contemplated”. While “general approval” could not amount to assistance on its own, a defendant cannot escape accessory liability “by saying that, although he supported the activities generally, he did not support the carrying out of tortious acts”. Lord Sumption (dissenting) described Hamblen J’s conclusion as “unrealistic”; “the common design of SSCS and SSUK [was] that the nets of any fishermen whom they considered to be poachers should be damaged and destroyed”. If two parties design to commit a tort in a certain eventuality, then “it is irrelevant that they both appreciated and perhaps even hoped that it would not occur”. On this basis Lord Toulson commented that, if SSUK had been held to have assisted SSCS, then he would have found that these acts were done in pursuance of a common design.
Lords Sumption and Mance agreed with the majority on the legal test for joint liability, but dissented on the application of that law to the facts, and in particular whether the assistance given by SSUK could be regarded as de minimis (Lord Mance noted that this was complicated by a degree of obscurity about the facts relating to the mailshot, which had been “at best a very peripheral part of the respondent’s case at first instance”).
Lord Sumption commented, “the limitations which the courts have placed upon the scope of liability as a joint tortfeasor are founded on a pragmatic concern to limit… interfere[nce] with a person’s right to do things which are in themselves entirely lawful.” It is on this basis that assistance must be more than de minimis, and also that mere assistance will not create liability, although assistance pursuant to a common design will do so.
Lord Sumption said the assistance “must be material, but that means no more than that it must be more than de minimis”; there was no justification in principle, he believed, for requiring more than this. He stated that the maxim of de minimis non curat lex is concerned with extremes, and “refers to some fact which is in principle legally relevant but is so trivial or negligible as to be no fact at all in the eyes of the law”. While the sum of £1,730 was a small proportion of the total cost of Operation Blue Rage, it was “not so small as to be legally equivalent to nothing”. Further, he believed the significance of the appeal for funds should not be judged solely by its outcome, as international fundraising “was important to SSCS, even if it was not indispensable”.
Lord Mance also considered that, at the least, SSCS requested the ability to send out a mailshot in SSUK’s name, and was expressly or implicitly authorised to do so. He considered that if the fundraising effort “had yielded nothing or only a tiny sum”, he would agree that the mere despatch of the mailshot was not significant assistance. However, the sum raised was “not insignificant”, and even less so when viewed as part of SSCS’s general strategy for fundraising from all of their foreign branches.
This judgment emphasised that the law of accessory liability in tort is very fact-sensitive, and so the real question was when it is appropriate for an appellate court to interfere with a first instance court’s exercise of judgment based on their findings of fact. The majority considered the assistance, in the scheme of Operation Blue Rage, was rightly considered to be insignificant by Hamblen J; the dissenting judges argued that the act of allowing the mailshot to be sent out in the name of SSUK and the sums donated could not reasonably be seen to be legally equivalent to nothing. Also, the majority considered that only the actual assistance given by SSUK was relevant, whereas Lord Sumption thought that the potential assistance that could have resulted from their actions should be considered.
SSUK was jubilant about this result, which brings an end to several years of litigation. Unfortunately, for the Sea Shepherd organisation (and for blue fin tuna), this judgment did not condone SSCS’s acts but merely held that it could not be sued in England and Wales.