Cases in which a number of different parties are said to have acted together in causing loss to a claimant have given rise to plenty of case law. It is an important point since, if parties are classified as "joint tortfeasors", they are individually liable for all of the claimant's loss. Even if, say, one tortfeasor is said to be 20% responsible, if the other tortfeasors are not (or cannot) be sued, that party is liable for 100% of the loss.
The Supreme Court yesterday handed down its Judgment in Sea Shepherd UK v Fish & Fish Limited  UKSC 10 confirming the test for accessory liability in tort.
All five Supreme Court judges agreed that the test was, essentially, a three part test. The defendant will be jointly liable for the tortious acts if (1) he assisted the commission of an act by the primary tortfeasor; (2) he acted pursuant to a common design; and (3) the act is a tort as against the claimant.
The case concerned a fish farm in Malta operated by Fish & Fish. The Sea Shepherd Conservation Society (SSUS), a US outfit, used its ship, "Steve Irwin", to attack a vessel belonging to Fish & Fish as part of what was known as "Operation Bluerage", to intercept and oppose the overfishing of Bluefin tuna in the Mediterranean. One of the fish cages was rammed and forced open, releasing the fish. It was said that Sea Shepherd UK (SSUK) assisted SSUS' tort by participating in the fundraising for Operation Bluerage and recruiting two volunteers.
The first instance decision of Mr Justice Hamblen dismissed the claim against SSUK holding that it could not be liable for the actions of the US outfit. The Court of Appeal disagreed.
Applying the test, there was general agreement amongst the Supreme Court judges that SSUK had acted pursuant to a common design (condition 2). SSUK was aware (from the fundraising pamphlet) that the campaign involved a "preparedness to use violent intervention". The judges though disagreed on whether it could be said that SSUK had "assisted" the campaign (condition 1).
The "assistance" which is said to further the common design must be material. SSUK's fundraising had raised £1,730, the volunteers had sourced and transported a pump for the Steve Irwin and done a day's work aboard the ship. Lords Toulson, Neuberger and Kerr considered it properly open to Hamblen J to conclude that such a role was of "minimal importance" to the commission of the tort. Lords Sumption and Mance dissented saying that though the sums collected were a small proportion of the total costs of Operation Bluerage, they were not so small as to be legally irrelevant.
The decision does not offer a radical charge to the law. That said, it is a useful discussion of the difficult factual issues which can arise on common enterprise cases. The obvious message here was that it was all very fact sensitive and the majority of the Supreme Court was not prepared to second guess the first instance judge's assessment of the facts. But the risk remains: a participant in an unlawful scheme, even if only to a small degree, can be exposed to the entirety of the claims which follow.