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This case considers the requirements for a party to be held liable for a tort committed by another as a joint tortfeasor.Lucy_Hayes_ph

Background

The parties are Sea Shepherd, an international conservation charity, and Fish & Fish, a tuna fishing corporation. In June 2010, Sea Shepherd were running a campaign against illegal tuna fishing entitled ‘Operation Blue Rage’. The Sea Shepherd ship the Steve Irwin (named in memory of the crocodile-loving conservationist) intercepted two of Fish & Fish’s vessels as they towed cages of live Bluefin tuna from Libya to its fish farm offshore of Malta.  The crew of the Steve Irwin rammed one of the vessels, damaged the cage and released around 33 tonnes of tuna back into the sea. Fish & Fish sued the UK branch of Sea Shepherd (“SSUK”) (the legal owner of the Steve Irwin) for damages in trespass and/or conversion, with the US-based Sea Shepherd Conservation Society (“SSCS”) and Captain Paul Watson, the founder and organisational head of SSCS, as second and third defendants.

SSCS and Mr Watson have taken no part in the proceedings so far, challenging jurisdiction on the basis that the claimant had no real claim against SSUK.  A preliminary issue trial was held in the Admiralty Court to determine whether SSUK could be held liable as a joint tortfeasor; the points in issue were whether Mr Watson was acting on behalf of SSUK while directing the attack (the “capacity issue”), and whether SSUK was acting in furtherance of a common design with SSCS and Mr Watson (the “common design issue”).[1]

At first instance in the Admiralty Court, Hamblen J rejected the argument that Mr Watson was the “controlling mind” behind all the Sea Shepherd entities.  Although Mr Watson was a Director of SSUK, he accepted that this was an “honorary” position.  He also accepted that SSUK’s role was a supporting one to that of SSCS; the campaigns were conducted by SSCS, and SSUK’s primary objective was to raise funds for SSCS.  Mr Watson was held to have been acting on behalf of SSCS.

SSUK carried out acts in furtherance of ‘Operation Blue Rage’, such as sending out a fundraising mailshot, and facilitated the tort by making the Steve Irwin available.  The trial judge held, based on the campaign documents, that the purpose of the campaign was to “investigate, document, and take action when necessary to expose and confront illegal activities” in relation to Bluefin tuna fishing.  This did not necessarily involve violent intervention; therefore SSUK did not have a common design to carry out the attack.  Hamblen J additionally held that the actions of SSUK in furtherance of the campaign were “remote in time and place” and “of minimal importance and played no effective part in the commission of the tort”.  They had not facilitated the tort by making the Steve Irwin available as the ship was in fact under the beneficial control of SSCS.

Fish & Fish appealed on both the capacity issue and the common purpose issue.

Court of Appeal[2]

Beatson LJ and Mummery LJ did not overturn the Admiralty Court’s finding on the capacity issue, stating that the appellants had not “overcome the considerable burden that lies on an appellant who wishes to challenge a judge’s findings of fact”.  McCombe LJ, however, voiced “concern” as to Hamblen J’s decision on the capacity issue. In his view, it was “difficult to see how Mr Watson could discard his position as a director of SSUK and say he was merely acting… only for SSCS” (paragraph 75 of the judgment).

On the issue of common design, Beatson LJ held that there were two requirements for joint responsibility (Unilever Plc v Gilette (UK) Ltd [1989] RPC 583 at 609).  The first is that there must be a common design that the tortious acts should be done by one or more of the alleged tortfeasors (here SSCS and Mr Watson).  The second is that the alleged participator (SSUK) did acts in furtherance of the common design.  There is no need for the participator to commit an independent tort.

SSUK relied heavily on Sabaf SpA v Meneghetti SpA [2003] RPC 14 at [59], which states that the joint tortfeasor must have “made the tortious act his own”.  However that decision was found to be closely linked to the specific facts of that case and “of limited assistance in the circumstances of the present case” (Beatson LJ at paragraph 56).  The Court of Appeal held that the question was whether the alleged joint tortfeasor (SSUK) had done something that furthered that common design; it was not necessary for that act to have been an essential part of, or of real significance to, the tort.

Beatson LJ found that the trial judge had placed too much emphasis on SSCS’s ‘mission statement’ in relation to ‘Operation Blue Rage’, when there was significant evidence which showed it was a clear aim of the campaign to take direct action by freeing tuna from nets and cages.  It was noted that “SSCS may have considered the cutting of nets and freeing of fish in international waters not to be tortious because in their view the fishing was illegal” (Beatson LJ at paragraph 66).   However, it is not necessary for the common design to be to commit the tort; it is enough that the parties combine to secure the doing of acts which, in the event, prove to be tortious.  The common design was held to include freeing Bluefin tuna from nets and cages by intercepting the fishermen.

The Court of Appeal then considered whether Hamblen J had erred in finding that SSUK’s participation was of minimal importance and did not play an effective part in the commission of the tort.  Beatson LJ held that there is no requirement for the joint tortfeasor to be proximate in time and place when the tort is carried out (Shah v Gale [2005] EWHC 1087 (QB)).  Even leaving aside acts by SSUK done for SSCS but not specifically for ‘Operation Blue Rage’, “the action of SSUK showed that it had ‘joined in’ the common design by doing acts in furtherance of it” (Beatson LJ at paragraph 71).  The Court of Appeal therefore held that SSUK could be liable as a joint tortfeasor. SSUK brought an appeal of that decision to the Supreme Court.

Appeal to the Supreme Court

The appeal is to be heard on 8 December 2014 before Lord Neuberger, Lord Mance, Lord Kerr, Lord Sumption and Lord Toulson. The points appealed are whether SSUK is liable by common design.

Postscript – Steve Irwin sails on

When Fish & Fish commenced proceedings against Sea Shepherd in 2011, the Steve Irwin was impounded in Shetland.  However, a global internet campaign assisted Captain Watson in getting together the £520,000 security bond required for it to be released.  While the court case has continued, the Steve Irwin has been sailing the high seas disrupting illegal whaling.

[1] Fish & Fish Ltd v Sea Shepherd UK [2012] EWHC 1717 (Admlty)

[2] Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544