New Judgment: Fish & Fish Ltd v Sea Shepherd UK  UKSC 10
04 Wednesday Mar 2015
On appeal from:  EWCA Civ 544
The Supreme Court allowed the appeal by a majority of 3-2 against the Court of Appeal allowing the respondent’s appeal for the loss and damage it suffered because its ship had been rammed as part of an international charity’s campaign, of which the appellant was a branch of, to stop illegal tuna fishing.
In the High Court, Hamblen J had dismissed the claim finding that the appellant could not be held liable. The Court of Appeal disagreed and had allowed the respondent’s appeal.
The Court unanimously agreed on the test for liability. Lord Toulson reasoned that a defendant will be jointly liable for the tortious acts of the principal if the defendant: (i) acts in a way which furthers the commission of the tort by the principal; and, (ii) does so in pursuance of a common design to do or secure the doing of the acts which constitute the tort.
The justices differed in applying the test to the current case. Lord Toulson, Lord Kerr and Lord Neuberger in the majority stated that Hamblen J had reached an entirely proper conclusion that the role played by the appellant, based mainly on its fundraising relating to a small sum solicited by the Sea Shepherd Conversation Society (SSCS), had been of minimal importance. Lord Neuberger went on to clarify that the appellant’s recruitment of volunteers was trivial and, in relation to the fundraising, all the appellant did was not to object to the use of its name and bank account in the mailshot before paying the small sum over to SSCS.
Lord Sumption and Lord Mance in their dissenting judgment disagreed with the application of the test and stated that the appellant’s participation in relation to fundraising, though small, cannot be described as so trivial as to be no fact at all in the eyes of the law. Lord Mance went on to argue that the appellant had explicitly or implicitly authorised the mailshot to be sent out in his name and his behalf which meant his involvement could not be described as minimal.