Supreme Court finds that parties were not joint tortfeasors

In June 2010, Fish & Fish Limited, a fish farm operator  based in Malta, was transporting live  Bluefin tuna in the Mediterranean Sea. On 17 June 2010 divers from the vessel “STEVE IRWIN” entered  the water and cut cages containing the tuna as part of a campaign known as Operation Blue Rage. The  tuna escaped. Sea Shepherd UK (“SSUK”) and two US-based defendants - Sea Shepherd Conservation  Society (“SSCS”) and Mr Paul Watson - were sued for the value of the tuna. Jurisdiction against all  Defendants was sought based upon SSUK’s alleged involvement.

There was a trial of a preliminary issue as to whether SSUK was liable for the acts of those  involved in the incident on the basis of Paul Watson’s role as both Master of the vessel at the  relevant time and also director of SSUK, SSUK’s legal ownership of the vessel involved and being  joint tortfeasors pursuant to the doctrine of common design. At first instance, Hamblen J rejected all such  arguments, accepting that Paul Watson was operating at all times on behalf of SSCS, that  SSCS was  the beneficial owner of the vessel and did not  require SSUK’s authority to use the vessel, and  that the steps taken by SSUK in support of the campaign were minimal such that it was not liable  under the doctrine of common design. The Court of Appeal reversed this judgment in part, holding  that SSUK merely needed to take some steps pursuant to a common design and that this test had been  met resulting in liability on the part of SSUK. The Court of Appeal overturned both the legal  findings and also, in part, the factual findings of the Judge in this regard. The question of  whether SSUK was liable on the basis of common design was the subject of the appeal to the Supreme  Court.

In a majority of 3:2, the Supreme Court has now found that SSUK was not liable as joint tortfeasor.

All five justices agreed on the test for liability in tort by common design, resolving the  ambiguity created in the Court of Appeal. Lord Toulson’s leading judgment 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 to a level that is greater  than de minimis; and (ii) does so in pursuance of a common design to do, or secure the doing of,  the acts which constitute the tort. The judges disagreed as to the application of the facts to the case, but the  majority found that Hamblen J’s findings of fact were not so unreasonable as to be capable of being  overturned by an appellant court and the acts of SSUK in furtherance of a common design (accepting  GBP 1,730 in donations and sending two volunteers to work on the vessel) were de minimis.