Sea Shepherd UK v Fish & Fish Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lord Neuberger,Lord Mance,Lord Toulson,Lord Sumption |
| Judgment Date | 04 March 2015 |
| Neutral Citation | [2015] UKSC 10 |
| Date | 04 March 2015 |
| Court | Supreme Court |
[2015] UKSC 10
Lord Neuberger, President
Lord Mance
Lord Kerr
Lord Sumption
Lord Toulson
Appellant
John Russell QC
(Instructed by Clyde & Co LLP)
Respondent
Michael Davey QC
(Instructed by Hill Dickinson LLP)
Heard on 8 December 2014
This appeal concerns accessory liability in tort. The appellant, Sea Shepherd UK, is an English company. The other defendants, Sea Shepherd Conservation Society and Mr Paul Watson, have no presence in the UK. The appellant is therefore the anchor defendant for the purpose of the English court having jurisdiction to entertain the action.
The claim is for loss and damage allegedly suffered by the claimant, Fish and Fish Limited, in an incident in the Mediterranean Sea on 17 June 2010 when conservationists mounted an operation designed to disrupt the bluefin tuna fishing activities of the claimant. The appeal arises from the determination of a preliminary issue as to whether the incident was directed and/or authorised and/or carried out by the appellant, its servants or agents, and whether the appellant was liable, directly or vicariously, for any damage sustained by the claimant.
After a trial which included oral evidence, Hamblen J decided the issue in favour of the appellant and dismissed the claim against it: [2012] EWHC 1717 (Admlty), [2012] 2 Lloyd's Rep 409. He also directed that service of the proceedings on the other defendants out of the jurisdiction be set aside.
Hamblen J's decision was overturned by the Court of Appeal (Mummery, McCombe and Beatson LJJ) for reasons set out in the judgment of Beatson LJ: [2013] EWCA Civ 544, [2013] 1 WLR 3700. The court gave the following answer in its order to the question raised by the preliminary issue:
"On the assumption that the incident on 17 June 2010 was tortious, [Sea Shepherd UK] is liable for any alleged damage to the tuna fish cage and/or the release of the fish on the ground that it joined with the [other] [d]efendants in a common design to carry out such acts (and not on any other basis."
The claimant operates a fish farm off Malta. On the day of the incident it was using two vessels to transport a catch of tuna in fish cages when they allegedly came under attack from a vessel, the "Steve Irwin", under the command of the defendant Mr Watson. It is alleged that a cage was rammed and divers from the "Steve Irwin" tore it open, enabling the fish inside to escape.
Mr Watson is a Canadian environmentalist and US citizen. He is dedicated to the cause of marine wildlife conservation. In 1977 he broke away from Greenpeace and formed the defendants Sea Shepherd Conservation Society (SSCS), now based in the state of Washington, USA. SSCS has since become the parent of a network of national Sea Shepherd entities including the appellant. In his evidence Mr Watson described himself as the organisational leader with overall strategic control of the parent organisation. He is also a director of its subsidiaries including the appellant.
The appellant is a company limited by guarantee and is a registered charity. According to the Charity Commission's website, its activities include raising funds for campaigns to protect marine wildlife and ecosystems worldwide. Its charitable objects include promoting the conservation and preservation of marine and freshwater living organisms. At the time of the incident the appellant had only one employee, Mr Darren Collis, who gave evidence at the trial.
The appellant's financial statements for the year ended 30 June 2010 included a trustees' report approved by the board on 7 December 2010. The report summarised the charity's objectives and principal activities as follows:
"The charity's objectives as set out in the Memorandum of Association are to conserve and protect the world's marine wilderness ecosystems and marine wildlife species.
The organisation endeavours to accomplish these goals through public education, investigation, documentation and, where appropriate and where legal authority exists under international law or under agreement of national governments, enforcement of violations of the international treaties, laws and conventions designed to protect the oceans.
All of Sea Shepherd's campaigns are guided by the United Nations World Charter for Nature."
The trustees' report went on to refer to a number of international campaigns in 2010, including a campaign in the Mediterranean "to protect the critically endangered bluefin tuna". Under "Plans for the future" the report stated that the appellant's primary objective remained "the provision of funds to support the aims and objectives of our international organisation the Sea Shepherd Conservation Society".
There are international regulations, introduced by the International Conference for the Conservation of Atlantic Tuna and by the European Council, which are supposed to control the fishing of Atlantic bluefin tuna. There are quotas, restrictions on the size of fish which may be caught and limits to the fishing season. In 2010 SSCS launched a campaign because of its concern that poor law enforcement in the Mediterranean was allowing widespread violation of the regulations, threatening the future of the species. It chose the title "Operation Bluerage". It announced the campaign by a posting on its website dated 23 January 2010. This stated that "The objective will be to intercept and oppose the illegal operations of bluefin tuna poachers" and "Sea Shepherd intends to confront the poachers and will not back down to threats and violence from the fishermen". There are issues between the parties about what exactly happened in the incident on 17 June 2010 and whether the claimant was engaged in illegal fishing, but they are not relevant to this appeal.
Hamblen J found that in conducting the operation, as master of the "Steve Irwin", Mr Watson was not acting for the appellant but only for SSCS. The vessel was registered in the name of the appellant but it held a bare legal title. The vessel was beneficially owned and operated by SSCS.
On the issue of accessory liability Hamblen J summarised the relevant legal principles as follows:
"20. In respect of the common design issue, persons may be joint tortfeasors when their respective shares in the commission of a tort are done in furtherance of a common design: The Koursk [1924] P 140 at p 156 per Scrutton LJ; CBS Songs v Amstrad [1988] AC 1013 at p 1058.
21. The nature of a 'common design' was explained by Mustill LJ in Unilever v Gillette [1989] RPC 583, at p 609:
'I use the words common design because they are readily to hand but there are other expressions in the cases, such as 'concerted action' or 'agreed on common action' which will serve just as well. The words are not to be construed as if they formed part of a statute. They all convey the same idea. This idea does not, as it seems to me, call for any finding that the secondary party has explicitly mapped out a plan with the primary offender. Their tacit agreement will be sufficient. Nor, as it seems to me, is there any need for a common design to infringe. It is enough if the parties combine to secure the doing of acts which in the event prove to be infringements.'
22. The joint tortfeasor needs to join or share in the commission of the tort which generally means some act which at least facilitates its commission.
23. As explained by Hobhouse LJ in his judgment in Credit Lyonnais v ECGD [1998] 1 Lloyd's Rep 19 there is no tortious liability for aiding and abetting or facilitating the commission of a tort, even knowingly. There may, however, be such a liability if that is done pursuant to a common design. He treated this as an example of liability based on agency.
24. In considering whether there is any such liability it is relevant to consider whether the person has been so involved in the commission of the tort as to make the infringing act his own. As stated by Peter Gibson LJ in Sabaf v Meneghetti [2002] EWCA Civ 976; [2003] RPC 264, para 59:
'The underlying concept for joint tortfeasance must be that the joint tortfeasor has been so involved in the commission of the tort as to make himself liable for the tort. Unless he has made the infringing act his own, he has not himself committed the tort. That notion seems to us what underlies all the decisions to which we were referred. If there is a common design or concerted action or otherwise a combination to secure the doing of the infringing acts, then each of the combiners has made the act his own and will be liable.'"
The claimant alleged that the appellant was party to a common design with the other defendants to carry out Operation Bluerage and that this was to involve violent intervention of the kind which allegedly occurred. It relied particularly on a mailshot soliciting payments to the appellant in support of the operation. Under the heading "OPERATION BLUERAGE" and subheading "2010 MEDITERRANEAN BLUEFIN TUNA DEFENSE CAMPAIGN" the mailshot stated "We intend to seize, cut, confiscate and destroy every illegal tuna fish net we find". As to the appellant's role, the claimant alleged that it facilitated the commission of the tort by making the vessel available for the campaign, recruiting volunteers, paying the crew and obtaining financial contributions.
Hamblen J accepted that the appellant approved of the campaign and was aware that it envisaged the possibility of violent intervention against property, but he added that this was not the object of the campaign. The campaign involved a preparedness to use violent action, but it was not necessarily the case that such action would be taken.
As to the part played by the appellant,...
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