UK Supreme Court Reaffirms Law On Accessory Liability In Tort

The UK Supreme Court has reviewed and confirmed the legal principles behind accessory liability for joint tortfeasors under the doctrine of "common design" in a successful appeal by Sea Shepherd UK, represented by Michelle Crorie and her team of Clyde & Co LLP.

Sea Shepherd UK v Fish & Fish Limited [2015] UKSC 10 provides a useful overview of the development and application of the doctrine of common design in English tort law.

Lord Toulson, who delivered the leading judgment, outlined 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.

Background to the Case

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"), a charity registered in England, and two US-based defendants - Sea Shepherd Conservation Society ("SSCS") and Mr Paul Watson - were sued for the value of the tuna. The "STEVE IRWIN" was arrested in Scotland in 2011 as security for the proceedings, at which point Clyde & Co was instructed by SSUK.

The case involved a preliminary issue as to whether Sea Shepherd UK was liable for the acts of those who were involved in the incident. Jurisdiction against all three Defendants was sought based upon SSUK's alleged involvement.

Fish & Fish Limited argued that SSUK was liable on the bases, inter alia, that it was the legal owner of the vessel and that Paul Watson was a director of SSUK. SSUK's sole employee at the relevant time gave witness evidence at trial. His activities for SSUK included setting up stalls at English music festivals and arranging volunteer training events.

High Court and Court of Appeal

In the trial at first instance, heard in the English High Court of Admiralty, Mr Justice Hamblen rejected Fish & Fish Limited's arguments, accepting that Paul Watson was operating at all times on behalf of SSCS, that SSCS was 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...