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

Case No A3/2012/1784[2013] EWCA Civ 544
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2012] EWHC 1717 (Admlty)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMIRALTY COURT
The Hon. Mr Justice Hamblen
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/05/2013
Before
LORD JUSTICE MUMMERYLORD JUSTICE McCOMBELORD JUSTICE BEATSON
Between
Fish & Fish LtdAppellant/
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Michael Davey (instructed by Hill Dickinson LLP) for Appellant/ClaimantJohn Russell (instructed by Clyde & Co) for Respondent/First Defendant for The Second and Third Defendants did not appear and were not representedHearing Hearing date: 19 March 2013Further submissions: 2 and 3 May 2013
JudgmentLord Justice Beatson :Introduction and background:
[1]This is an appeal from the order, dated 25 June 2012, of Hamblen J following the trial of a preliminary issue. The immediate question is whether the respondent, Sea Shepherd UK (hereafter “SSUK”) is liable as a joint tortfeasor for an attack which damaged the property of Fish & Fish Ltd (hereafter “the appellant”) to prevent what SSUK and others regarded as illegal fishing for bluefin tuna.[2]SSUK is an English company limited by guarantee and a charity. It was the first defendant in these proceedings and was served within the jurisdiction. The second and third defendants, Sea Shepherd Conservation Society (hereafter “SSCS”), and Paul Watson, were served out of the jurisdiction pursuant to the permission of the court on the ground that they are necessary or proper parties to the claim against SSUK. As that was the only jurisdictional gateway to service out of the jurisdiction against them, if there is no claim against SSUK, there is no jurisdiction for the proceedings against them. Accordingly, while the immediate question is the one I have set out at [1], there is also an underlying question as to the jurisdiction of the courts in this country over SSCS and Mr Watson. That question does not fall for decision in these proceedings in which neither took any part.[3]The International Conference for the Conservation of Atlantic Tuna (hereafter “ICCAT”) and Council Regulation (EC) No. 302/2009 regulate the fishing of Atlantic blue fin tuna. Fishing is only permitted during a limited period each year and a quota system restricts catches.[4]The appellant operates a fish farm situated offshore of Malta which is authorised by ICCAT. It claims €760,148 in damages for trespass to and/or conversion to its property. On 17 June 2010 two of its vessels were towing cages containing live bluefin tuna from Libya to its fish farm, when, as part of “Operation Blue Rage”, a campaign by SSCS, one of them was rammed by another vessel, the “STEVE IRWIN”. A cage was damaged and some 33 tonnes of the total catch of 64 tonnes of fish were released into the sea by divers from the “STEVE IRWIN”.[5]SSUK is one of a number of Sea Shepherd charities in a number of countries. It is the registered owner of the “STEVE IRWIN”. The vessel was sold pursuant to a sale agreement dated 24 October 2006 between Babcock Support Services Ltd, as sellers, and SSUK, as buyers. There is also a bill of sale between the Scottish Ministers as transferors and SSUK as transferee. The purchase price of £825,000 was met by SSCS using its funds and a loan made to it and to SSUK which SSCS subsequently paid off. The vessel remained a UK registered vessel until 22 October 2008, when it was registered in the Netherlands. The Netherlands certificate of registry names SSUK as the owner.[6]SSCS is a conservation charity based in the United States of America. It was founded in 1977 following a split from Greenpeace. It is an Oregon corporation, and is now based in Washington State. In 2010 it launched “Operation Blue Rage”, a campaign aimed at preventing fishing of Atlantic blue fin tuna contrary to the ICCAT’s Regulations and Council Regulation (EC) No. 302/2009. A posting on SSCS’s website dated 23 January 2010 announced the campaign. It stated that “the objective will be to intercept and oppose the illegal operations of blue fin tuna poachers” and that “Sea Shepherd intends to confront the poachers and will not back down to threats and violence from the fishermen”.[7]The third defendant, Paul Watson, is the founder and organisational head of SSCS. He is a director, but not an employee, of SSUK. On 17 June 2010, Mr Watson was the Master of the “STEVE IRWIN”. In email notices dated 9 and 10 June sent to SSCS recipients he stated “the time has come … for Sea Shepherd to legally intervene against any blue fin tuna fishing activity we can encounter” and “Sea Shepherd’s objective is to free [illegally fished] blue fin tuna from the nets and cages and we can do this with the poachers. We anticipate a violent defence by the poachers but that is a violence we can defend ourselves from…”.[8]The main focus of the appellant’s case in the pleadings and before the judge concerned the capacity in which Mr Watson acted. It was submitted that on 17 June Mr Watson directed the attack on its vessels and cages and the release of the fish on behalf of both SSUK and SSCS. Accordingly, SSUK and SSCS are both legally responsible for his actions. In view of the judge’s findings of fact, as to which see [15] – [17], Mr Davey, on behalf of the appellant, while not abandoning this point, concentrated on the appellant’s alternative case. This was that the actions against the appellant’s property were taken pursuant to a common design between the three defendants to commit such acts. SSUK was a joint tortfeasor because it acted in furtherance of the common design by making the vessel available to the “Blue Rage” campaign and inter alia paying the crew and processing and remitting donations received for the “Blue Rage” campaign to SSCS. The appellant relied inter alia on a document (hereafter “the mailshot”) which solicited funds for the campaign and SSUK’s processing of contributions. It also relied, particularly in the oral submissions, on SSUK’s Trustees’ Report for the year ending on 30 June 2010, which formed part of its financial statements.[9]The mailshot is headed “Blue Rage”. Its headline stated:
“We intend to seize, cut, confiscate and destroy every illegal tuna fish net we find”
. At the bottom of the page SSUK’s address was set out. The evidence of Mr Collis, the sole employee of SSUK at the time, was that copies of the mailshot to recipients in the UK were posted in the UK, although probably by an intermediary (acting for SSCS) rather than by SSUK. SSUK received and processed the responses to the mailshot which it received and remitted £1,730 to SSCS for use in the “Blue Rage” campaign.[10]SSUK’s Trustees’ Report for the year ending on 30 June 2010 was signed off by Mr Roest, then a director and a trustee of SSUK, on 7 December 2010. It contained sections on “objective, mission and principal activity” and “public benefit”. The former stated inter alia that SSUK’s objectives are “to conserve and protect the world’s marine wilderness ecosystems and marine wildlife species” and endeavours to do so “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” (emphasis added).[11]The section on public benefit stated that the Trustees “consider how planned activities will contribute to the aims and objectives they have set”. It also stated that SSUK “work[s] towards the goal of marine conservation and saving marine species and habitats from extinction”, “Sea Shepherd saved 528 whales in the protected Southern Ocean sanctuary during Operation No Compromise …., and that[t]here were several new international campaigns in 2010, including a campaign in the Mediterranean to protect the critically endangered Bluefin tuna …” (emphasis added).

The preliminary issue:

[12]Although Mr Watson gave evidence, SSCS and Mr Watson took no part in these proceedings as parties. They challenged jurisdiction principally on the ground that, as the appellant had no real claim against SSUK, there was no claim to which they could be necessary or proper parties. The jurisdiction challenge was stood over pending the outcome of the preliminary issue trial. The preliminary issue before Hamblen J therefore sought to address SSUK’s responsibility. It was formulated thus:
“Whether the incident on 17 June 2010 was directed and/or authorised and/or carried out by the first defendant, SSUK, its servants or agents, as alleged in paragraph 9 of the particulars of claim and as further particularised in paragraph 6 of the reply and accordingly whether SSUK is liable, directly or vicariously, for any alleged damage to the tuna fish cage and/or the release of the fish.”

The judge’s order answered it in the negative.

The judgment below:

[13]I have referred (see [8]) to the two issues before the judge. It was common ground (see judgment, [19]) that the first , “the capacity issue”, depended on whether, as a matter of fact, Mr Watson was acting on behalf of SSUK while directing the attack on 17 June 2010. The second question was, in the light of the classic statement from Clerk & Lindsell on Torts adopted by Scrutton LJ in The Koursk [1924] P 140 termed “the common design issue”. In that case Scrutton LJ stated (at 156) that “persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design” and “… mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action to a common end.” The judge stated that 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

The “capacity issue”:

[14]The witnesses called on behalf of SSUK included Mr Watson, Mr Makhani, SSCS’s chief financial officer, Mr Lockhart-McLean, first mate on the “STEVE IRWIN” at the material time, Ms Lamya Essemlali, President of Sea Shepherd France, and Mr Collis, to whom I have referred. The judge also had before him a statement from Ms Susan Hartland, an administrative co-ordinator employed by SSCS. Mr Roest, who was dismissed by the organisation in February 2012 when it was discovered that he had created documents purporting to be minutes of SSUK board meetings which had not taken place, did not give evidence.[15]The judge rejected the appellant’s case that Mr Watson was the controlling mind behind all the Sea Shepherd entities and acted on behalf of them all. He stated ( judgment, [29]) that was not borne out by the evidence. He accepted the evidence of the witnesses called on behalf of SSUK that the international organisation is SSCS, to which the national charities, such as SSUK provide support. He stated (judgment, [30]) “while it is correct that there is a close connection between the various Sea Shepherd entities worldwide, the different entities are separate legal bodies and the operational reality is that SSCS is the global organisation which utilises the resources of other Sea Shepherd entities when it is convenient”. He also stated (at [31]) that the fact that SSUK’s role was a supporting one was borne out by the Trustees’ Report which “[u]nder the heading, ‘Plans for the Future,’ … stated, ‘The primary objective of the Sea Shepherd UK remains the provision of funds to support the aims and objectives of our international organisation the Sea Shepherd Conservation Society’.”[16]In determining on whose behalf Mr Watson as Master was acting, the judge stated (judgment, [34]) that an important consideration is who had possession and control of the “STEVE IRWIN”. He then stated:
“35. Although SSUK was the legal owner of the vessel I find that at all times from its purchase the vessel was both beneficially owned and operated by SSCS. In particular: (1) SSCS's money bought the "STEVE IRWIN". The evidence was that SSCS paid off the loan made to it and SSUK to purchase the vessel and that it made the additional payments necessary for the purchase; (2) SSCS paid for the extensive modifications made to the "STEVE IRWIN". The evidence was that these cost over US$783,000; (3) SSCS bought the helicopters for the vessel. The evidence was that in 2010 over US$970,000 was spent on helicopters; (4) SSCS bore the vast majority of the maintenance and repair costs of the "STEVE IRWIN"; (5) SSCS bought the bunkers for the "STEVE IRWIN"; (6) SSCS paid operational costs such as Panama transit; (7) The crew were paid by SSCS (to the extent that the crew were paid - the majority of the crew are SSCS volunteers); (8) SSCS chose which volunteers will be on the vessel, and the volunteers entered agreements with it (including an agreement whereby SSCS own all image rights in relation to the campaign); (9) SSCS decided on what campaigns would be carried out and whether and how the "STEVE IRWIN" would be used in those campaigns. 36. Not only was the "STEVE IRWIN" managed, directed and operated by SSCS it was also treated as being SSCS's vessel. This is borne out by its accounts. It was treated as an asset of SSCS in SSCS's accounts and depreciation was claimed on that basis. By contrast, it does not appear in SSUK's accounts. 37. In the light of the evidence summarised above I find that the practical reality is that at all times it was SSCS which had possession and control of the "STEVE IRWIN". Although beneficial ownership does not carry with it the right to possession and control, in this case it helps to explain how and why possession and control was as a matter of fact exercised throughout by SSCS.”
[17]Because the judge found that SSUK and SSCS acted on the basis that the “STEVE IRWIN” was in SSCS’s possession and control, he found that there was no need for them to have made a formal agreement such as a bareboat charter. As to information that SSCS’s counsel had told a Seattle court that SSCS did not own any of the vessels, including the “STEVE IRWIN” although it funded them, the judge considered that was inconclusive and, in any event, “in terms of legal ownership it would be true”: judgment, [38] – [39].[18]The judge stated that his conclusion was supported by the fact that the campaigns, including the Blue Rage campaign, were conducted by SSCS, and it was pursuant to that campaign that the “STEVE IRWIN” was being deployed: judgment, [41]. He also referred to the fact that it was SSCS which chose the Blue Rage campaign logo, entered into agreements with media organisations to publicise its actions, organised the funding mailshot, paid over US$1 million, the cost of the campaign, that reports from the vessel during the operation were not sent to Mr Collis, who the judge found only learned anything about what was going on in the campaign after the incident on 17 June 2010 had occurred: judgment, [41].[19]Finally, the judge accepted (judgment, [45]) that, although Mr Watson was a director of SSUK, that was effectively an honorary title. He stated that Mr Watson appeared to have taken no action as director other than signing the promissory note relating to the purchase of the “STEVE IRWIN” on behalf of SSUK and SSCS. He also found that Mr Watson did not need to be a director of SSUK to exercise control over the vessel.

The “common design” issue:

[20]The judge stated the relevant principles on “common design” at [20] - [27] of his judgment. Apart from The Koursk (see above at [13]), he referred inter alia to the explanations of common design by Mustill LJ in Unilever Plc v Gillette (UK) Ltd [1989] RPC 583 at 609; Hobhouse LJ in Credit Lyonnais Bank Nederland NV (now Generale Bank Nederland NV) v Export Credit Guarantee Department [1999] 1 Lloyd’s Rep 19 (hereafter “Credit Lyonnais v ECGD”); and Peter Gibson LJ in Sabaf SpA v Meneghetti SpA [2002] EWCA Civ 976, [2003] RPC 14 at [59]. I refer to the material parts of these and other cases later in this judgment.[21]The appellant alleged that SSUK was a party to a common design with SSCS and Mr Watson to carry out “Operation Blue Rage”. It contended that the “Blue Rage” campaign was to carry out “direct action”, which meant violent intervention such as that which occurred and that SSUK did acts in furtherance of the common design. The appellant relied in particular on the mailshot. It also relied on the fact that SSUK facilitated the tort by making the “STEVE IRWIN” available for the campaign, recruiting volunteers, paying crew members, paying for parts and for repairs to the vessel, and supporting the Blue Rage campaign by obtaining financial contributions: see judgment, [48].[22]As to the nature of the common design, the judge stated: “In relation to the campaign it is correct that SSUK was aware and generally approved of the Blue Rage campaign and that the campaign envisaged the possibility of violent intervention against property, such as cutting fishing nets. However, that was not the purpose or object of the campaign. The purpose or object of the campaign was to seek to "investigate, document, and take action when necessary to expose and confront illegal activities" in relation to bluefin tuna fishing. That involved a preparedness to use violent intervention, but it did not necessarily mean that any such action would be taken. The campaign could and indeed very nearly did take place without any confrontation occurring. Investigating, documenting and exposing illegal activities does not involve violent intervention. Confronting such activities may do so, but not necessarily.” ([49])[23]As far as facilitation is concerned, the judge considered each of the factors relied on by the appellant and made his findings. He concluded that, since the vessel was at all times in the possession and control of SSCS, SSUK did not make it available for the campaign: judgment, [51]. He also found there was no evidence that any of the crew on board at the material time was recruited by SSUK, and that SSUK did not pay any of the crew: judgment, [52] – [55]. The payment to Ms Essemlali, who was on board, was in fact paid to her for other reasons, namely that as a matter of French law she could not receive payment from Sea Shepherd France and remain its President. The other payment on which the claimant (now the appellant) claimant relied was made to a Mr de Groot, who was not on board the vessel during operation Blue Rage and which the judge found was in respect of his role as SSCS European Co-ordinator.[24]The judge also found that payments of just under £3,000 were made by SSUK for general maintenance and repair of the “STEVE IRWIN” in the period around the Blue Rage campaign, but usually the sums were reimbursed by SSCS, and the parts were for general maintenance and repair, and not specifically for the campaign: judgment, [56]. He also found that SSUK did not itself seek campaign contributions, although its address and bank details were included in respect of UK recipients of SSCS’s mailshot to make it easier for them to donate in sterling. Funds received were processed by SSUK and sent to SSCS. Those sums amounted to £1,730. The £110,000 provided by SSUK in December 2009 and March 2010 was for general fundraising, and not specifically for the Blue Rage campaign: judgment, [57] – [58].[25]The judge found that the main thrust of the pleaded case was that the attack was directed or authorised or carried out by SSUK, and that, once the third defendant and the crew were found not to be acting on its behalf but on behalf of SSCS, the participation relied on by the claimant was “remote in time and place” and “of minimal importance and played no effective part in the commission of the tort”: judgment, [59]. Analysis: (1). Introduction[26]Many of the grounds of appeal are challenges to the judge’s findings of primary fact or to the inferences which he drew from those findings of primary fact. This was particularly so in the case of the “capacity” issue. In his oral submissions, Mr Davey recognised the height of the hurdle he had to overcome in that respect and concentrated on the “common design” issue, although he did not abandon the appeal on capacity.[27]SSUK’s position is that the judge’s findings on both the capacity issue and the common design issue are findings of fact. Mr Russell submitted that this appeal is essentially an unwarranted challenge to those findings of fact, including findings of fact which depended on oral evidence from witnesses. On some points, such as whether any of the unrestricted sums sent by SSUK to SSCS were in fact spent for the “Blue Rage” campaign, the evidence of SSUK’s witnesses was unchallenged. On some points on which their evidence was challenged, they were believed by the judge. The findings based on the judge’s acceptance of challenged evidence include: the global organisation was SSCS, and the national charities provided only support for SSCS; the beneficial ownership of the “STEVE IRWIN”; it was SSCS which conducted the “Blue Rage” campaign; the nature of SSUK’s involvement in the fundraising mailshot; and the capacity in which Mr Watson was the Master and had control of the vessel.[28]On the capacity issue, Mr Russell maintained that the appellant has cherry-picked among the facts. He argued that, in the light of the evidence as a whole, the judge was clearly entitled to find that SSCS had possession and control of the vessel, and that Mr Watson was acting on its behalf and not on behalf of SSUK. In relation to the finding about the significance of Mr Watson’s directorship, Mr Russell submitted that the challenge is to the judge’s finding of primary fact. He argued that the judge was entitled to find that Mr Watson was not acting on behalf of SSUK during the attack because the “Blue Rage” campaign was an SSCS campaign, in which SSUK had a minimal role, and because Mr Watson did not need to be a director of SSUK to exercise control of the vessel.[29]Mr Russell also submitted that the judge was entitled to find that, at all times after the acquisition of the vessel, it was “managed, directed and operated by SSCS”. Once that finding was made, he submitted the judge was entitled to find that it had always been in the possession and control of SSCS. (2). The “capacity issue”[30]Notwithstanding the force of Mr Davey’s submissions, on the capacity issue I do not consider that he has overcome the formidable burden that lies on an appellant who wishes to challenge a judge’s findings of fact, and in particular findings of primary fact which depended upon the judge’s views of the credibility of the witnesses heard at the trial. Hamblen J heard oral evidence from a number of the key people involved in the “Blue Rage” campaign including Mr Watson. He also heard evidence from SSUK’s only full-time employee at the time, Mr Collis.[31]There are undoubtedly documents that, in a court of first instance, provide powerful support for Mr Davey’s submissions that Mr Watson was the controlling mind of all the Sea Shepherd entities, and as such acted on behalf of the entities that were relevant in a particular context including, in this context, SSUK. Those involved appear to have been willing to blur roles and capacities, including the use of the funds of a particular Sea Shepherd entity for matters which are, or appear to be, the concern of another entity. Examples of this involving SSUK include the payments to Ms Essemlali and those to Mr Roest for expenses incurred when he was travelling for SSCS. But the judge found (at [30]) that the operational reality was that SSCS was the global organisation which utilised the resources of other entities when it was convenient to do so. He concluded, in the light of the evidence he heard, that the practical reality was that SSCS had possession and control of the “STEVE IRWIN” and that in relation to the events on 17 June 2010 the Master and crew on board were acting on behalf of SSCS and not on behalf of SSUK. He also found (at [41]) that the campaigns, including the “Blue Rage” campaign, were conducted by SSCS, and it was pursuant to that campaign that the vessel was being deployed.[32]It is precisely in such a case that it is important not to forget the oft-quoted statement of Lord Hoffmann in Biogen Inc. v Medeva Plc [1997] RPC 1 at 45. He stated:
“[T]he need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance…of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”
The grounds of appeal and the appellant’s written submissions on the capacity issue lost sight of the fundamental truth underlying Lord Hoffmann’s words, although the focus of Mr Davey’s oral submissions recognised his difficulties on this ground.[33]The judge’s carefully structured and clear judgment on what, (see judgment, [19] it was common ground was a matter of fact sets out the particular matters on which he relied, including (see judgment, [29]) the oral evidence of the SSUK witnesses, which he accepted. His acceptance of their evidence on key issues was a significant element in his finding. There was a wealth of evidence before him which entitled him to reach the conclusion that he did about possession and control, including the fact that the “STEVE IRWIN” had been operated by SSCS from the time it was purchased and at all times thereafter (see judgment, [35] and [37]), and SSUK’s inability in terms of personnel, financial capacity and experience to operate the vessel.[34]The judge did not consider that SSCS’s beneficial ownership and treatment of the vessel’s finances in its accounting records were conclusive factors in determining possession and control. It is clear from [36] and [37] of his judgment (set out at [16] above) that he used these factors as support for the conclusion he reached on other grounds. He was entitled to take beneficial ownership and control into account. The suggestion made during the hearing that the fact that SSUK was the registered owner and had legal title meant that it could require SSCS to give it possession and control of the vessel at any time does not sit easily with the judge’s finding, which the appellant did not challenge, that SSCS was the beneficial owner of the vessel. Had SSUK demanded possession from SSCS, it would have been open to SSCS to resist on the ground that it was the beneficial owner. (3) The “common design” issue[35]The appeal on this ground depends on whether, even on the facts that the judge found, he fell into error(a) in not finding a common design between SSUK and SSCS and Mr Watson of “direct action” which included violent intervention by cutting fishing nets, and(b) in concluding that it was fatal to liability on the part of SSUK that the participation by it relied on by the appellant was remote in time and place and played no effective part in the commission of the tort by SSCS and Mr Watson.[36]Mr Russell relied on Hobhouse LJ’s analysis in Credit Lyonnais v ECGD [1998] 1 Lloyd’s Rep 19 at 42 and the statement at 46 that “acts which knowingly facilitate the commission of a crime amount to the crime of aiding and abetting but they do not amount to a tort or make the aider liable as a joint tortfeasor”. Mr Russell submitted that it follows from this that, in the law of tort, a person not actually carrying out the tortious act will only be held to have committed the tort if he has solicited or incited the tort, or if the act of the primary actor is to be treated as his act on agency principles. To be liable, he must, in the words of this court in Sabaf SpA v Meneghetti SpA [2003] RPC 14 at [59], have made the tortious act his own.[37]Mr Russell submitted that the question of how involved a person must be to make the tortious act his own is a matter of fact and degree. The appellant did not, at the trial, rely on solicitation, incitement or procurement of the tort, and the factual context relied on in respect of the capacity issue is, he submitted, also fatal to any case on common design based on agency.[38]The starting point on common design was, submitted Mr Russell, the relationship of the three defendants, SSUK, SSCS and Mr Watson, and their relationship with the vessel. He relied heavily on Mr Collis’s evidence on SSUK’s day to day activity. When cross-examined on SSUK’s Trustee Report, Mr Collis stated that parts of the public benefit section in the Report were “not entirely accurate”, the reference to Sea Shepherd should have been clarified to SSCS, and that when preparing the Report Mr Roest had blurred his roles. He submitted that, notwithstanding what was said in SSUK’s Trustee Report, the determination of what the parties do is a primary fact and that the judge was entitled to reach the conclusion he did in respect of SSUK’s activities in the light of Mr Collis’s evidence.[39]Mr Russell also submitted that, on the appellant’s case that once there was a common design any act furthering it beyond the de minimis would make the person involved a joint tortfeasor. On the appellant’s approach, the volunteers who drove to the south of France with parts for the “STEVE IRWIN” and supported the SSUK campaign and those who donated small amounts of money filling out the form on the mailshot, would become joint tortfeasors, and that was wrong in principle.

(a) The relevant principles

[40]I shall indicate the general approach of the courts and summarise the relevant principles before turning to their application by the judge in this case. In doing so I bear in mind that, although the modern law on this part of the law of joint torts has largely developed in the contexts of torts involving the infringement of intellectual property rights, the principles stated and applied in the intellectual property cases “are drawn from the general law of tort” and are of general application: Credit Lyonnais v ECGD [1999] 1 Lloyd’s Rep 19, at 44 per Hobhouse LJ. I also bear in mind that in Unilever Plc v Gillette (UK) Ltd [1989] RPC 583 at 608, Mustill LJ cautioned against over-analysis of the cases on this topic. He did so because he considered that the cases “do little more than illustrate how in various factual situations the courts have applied principles which are no longer in doubt …”.[41]At common law, the fact that a person has facilitated the doing of a tortious act by another is not in itself sufficient to make him liable in tort. This is so even where the facilitation is done knowingly. A number of distinguished scholars, in particular Glanville Williams, Joint Torts and Contributory Negligence (1951), Atiyah, Vicarious Liability in the Law of Torts, (1967) 195, 301, Fleming, Law of Torts (8th ed) 156, and Sales [1990] CLJ 491, 509, drawing on the analogy of the criminal law, have argued that liability should be wider. In Credit Lyonnais v ECGD [1999] 1 Lloyd’s Rep 19 this court considered and rejected their views. Hobhouse LJ stated (at 44) that “knowing assistance is not enough to found tortious liability”. Stuart-Smith LJ (at 36) agreed. In the House of Lords Lord Woolf stated ([2000] 1 AC 486, 500) that in this area it is unhelpful to draw an analogy between the criminal law and civil law. About a decade earlier, in CBS Songs Ltd v Amstrad Plc [1988] AC 1018 at 1059, Lord Templeman stated that, in this context, it is “a mistake to compare crime and tort”.[42]Although other commentators (e.g. Davies [2011] CLJ 353 and Dietrich (2011) 31 Legal Studies 231) have continued to argue that the rejection of tortious liability for knowing assistance is mistaken, the position is that joint responsibility in the law of tort is more restricted than it is in the criminal law. In this context, the law of tort does not recognise true accessory liability, only joint liability where the person who can be termed the actual perpetrator is the agent of another person. Taking Devlin J’s well-known example in NCB v Gamble [1959] 1 QB 11 at 23, the consequence is that selling a person a gun knowing that person will use it to kill someone else will make the seller an accessory to the murder but will not in itself make him liable in tort. Joint responsibility in the law of tort is also more restricted than it is in equity where knowingly to assist a person to commit a breach of trust amounts to an equitable wrong.[43]In Credit Lyonnais v ECGD Hobhouse LJ stated (at 46) that the criminal law goes further than the civil law for obvious policy reasons. He did not, however, state what those policy reasons were. Earlier in his judgment (at 42), he stated that the liability in tort of a defendant for the act of another depends on participation in or authorisation of the tortious act, and that “it is essentially an agency principle which makes the defendant liable for the relevant act”. This does not provide the policy reasons for the difference. He also referred to the existence of inchoate offences; that is criminal conduct which is not dependent upon the commission of the principal crime. There is, however, no question of that in this context. It is common ground that the tort must have been committed. Moreover, the fact that there is no inchoate liability in tort does not seem relevant to the question of whether there should be accessory liability in tort.[44]A number of possible reasons of varying force might be deployed to justify the difference. They include a greater emphasis on deterrence in the criminal law, and the traditional role of equity in protecting trusts and the beneficiaries of other fiduciary relationships. They also include the uncertainty of the law of knowing assistance in equity, and the difficulty of holding the line that only actual knowledge of the intent to commit the specific tort will suffice to establish liability against arguments that lesser forms of knowledge should suffice. There is also the fact that, whereas in the criminal law different degrees of culpability can be reflected in the sentence, a joint tortfeasor is fully liable for all the claimant’s loss. McBride & Bagshaw, Tort Law (4th ed. 2012 864) suggest that drawing the boundaries of joint tortious liability more widely than at present risks uncertainty and the inhibition of perfectly legitimate activities. See also Weir, Economic Torts (1997) 32 n 31, commenting that “accessory liability in the criminal law has not been joyous, nor has it in equity…”, Carty, (1999) 19 Legal Studies 489, and Stevens, Torts and Rights (2007) 256-257.[45]What then are the requirements for this sort of joint responsibility or joint tortfeasance? In the light of the decision of this Court in Unilever Plc v Gillette (UK) Ltd [1989] RPC 583 at 609, it was common ground between the parties that there are two requirements. The first is that there must be a common design that the acts relied on as tortious should be done by one or more of the alleged joint tortfeasors, the actual perpetrator or perpetrators, here SSCS and Mr Watson. This requirement of a common design means that this form of joint liability is not accessory liability and provides protection against indeterminate and uncertain liability. The second requirement is that the other alleged joint tortfeasor, “the alleged participator” (here SSUK) itself did acts in furtherance of the common design. There is, however, no need for the participator to commit an independent tort.[46]As to the first requirement, in Unilever Plc v Gillette (UK) Ltd [1989] RPC 583 at 609 Mustill LJ, in a passage cited by

the judge in these proceedings, stated:

“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 form part of a statute. They all convey the same idea. The 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 any 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.”
[47]The fact that there can be a tacit agreement can lead to a blurring of the difference between the requirement of common design as meaning “agreement on common action” or “concerted action” and the requirement that the alleged joint tortfeasor itself did acts in furtherance of the common design. See for example the discussion of Unilever Plc v Chefaro Proprietaries Ltd [1994] FSR 135 by Laddie J in Mead Corporation v Riverwood Multiple Packaging Division of Riverwood International Corporation [1997] FSR 484 at 489-490. But the fact that there can be a tacit agreement and that there need not be a common design to commit the tort but to do acts which in the event prove to be torts, shows the potential breadth of this form of joint responsibility. In Unilever v Chefaro [1994] FSR 135 Glidewell LJ stated that what must be shown is that there are “facts from which an inference [of an agreement] could clearly and properly be drawn”.[48]I give two examples of facts which justified the drawing of such an inference. The first is Credit Lyonnais v ECGD [1998] 1 Lloyd’s R. 19. Mr Pillai, a dishonest ECGD employee, authorised the issue of ECGD guarantees in respect of bills of exchange with forged acceptances which assisted a fraudster, Mr Chong, to sell the bills of exchange to Credit Lyonnais. That act of assistance did not render Mr Pillai liable as a joint tortfeasor with Mr Chong. What made him so liable was, as Stuart-Smith LJ stated (at 36), that it was permissible to draw the inference of a common design between Messrs Pillai and Chong from all the evidence in the case, including letters from Mr Pillai stating that the bills of exchange were valid and acceptable in the United Kingdom and his claim to have recognised the signatures of the acceptors. Hobhouse LJ stated that “they were in effect partners”.[49]The second example is Shah v Gale [2005] EWHC 1087 (QB). Leveson J (as he then was) held (at [42]) that a person, who knew that others wanted to find someone and beat him up, was taken in a car and pointed out the address at which she believed the victim lived, “expressly or by the clearest implication became part of the common design”.[50]What are the limits? In exploring them, it is important to remember Mustill LJ’s warning against over-analysis of the cases. But it is nevertheless possible to identify a number of relevant factors. First, the fact that knowing facilitation does not suffice means that a common design will not be inferred merely because a person sells a product to another which he knows is going to be used to commit a tort: Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd [1979] FSR 59 at 64 per Buckley LJ. Secondly, a common design will not be inferred merely because two entities are closely related by shareholding, control or otherwise. Thirdly, a common design will not be inferred where one person or entity looks on with approval at what another person or entity is planning or doing. On the second and third factors, see Unilever v Chefaro [1994] FSR 135; Mead Corporation v Riverwood [1997] FSR 484 at 490 per Laddie J; and Sandman v Panasonic UK Ltd [1998] FSR 651, at 663 per Pumfrey J.[51]In Sandman v Panasonic UK Ltd Pumfrey J (at 664) held that there was a good arguable case for inferring participation in a common design between a parent company and its subsidiary where the parent adapted a product it manufactured specifically for sale in the United Kingdom where it would infringe copyright. His acknowledgement that he had felt considerable doubt over this and that his opinion had changed more than once in the course of the argument, suggests that it was a borderline case.[52]Sandman’s case, Unilever Plc v Gillette (UK) Ltd,Mead Corporation v Riverwood and a number of the other intellectual property cases concern service out of the jurisdiction and the question of whether one of the gateways for such service had been satisfied. They only involved determining whether there was a “good arguable case” on joint liability to put before a judge, rather than the determination of the issue after hearing live evidence. They are thus not only cases which turn on the facts, but cases where all that can be said is that when the undisputed facts are set in the context of the background the claimants have a good arguable case. For that reason they must be treated with some care.[53]I turn to the requirement that the alleged joint tortfeasor who is not the “actual perpetrator” did acts in furtherance of the common design. One of the cases cited by the judge was Monsanto Plc v Tilly & others [2000] Env LR 313. The media liaison officer of a group which had taken direct action by pulling up GM plants did not pull up plants himself but (see Stuart-Smith LJ at [46]) reconnoitred the site the day before, led the press to it, was present while others pulled up plants, and “explained the purpose and significance of their acts to the media”. He was held to have no arguable defence to a claim that he was a joint tortfeasor. It may be as a result of the circumstances of that case that the judge (judgment, [59]) described SSUK’s participation as “remote in time and place”, “of minimal importance”, “played no effective part in the commission of the tort”, and was not “of any real significance to the commission of the tort”.[54]At the hearing Mr Russell pointed to the fact that Mr Davey was not able to find an example of “common design” liability for a physical tort where the defendant was not present at the scene of the tort. But there is nothing in the formulations of the conditions of liability that requires such physical presence, and there appears to me to be no reason of principle for such a limit. On facts such as those in the Credit Lyonnais case there is no need for the joint tortfeasor to be present when the deceiving act is carried out. Moreover, an example has been found since the hearing. It is Shah v Gale (see [49]), where the person who pointed out the house of a man who others wanted to attack was not at the house when they did so and stabbed him. That case shows that there is no requirement of presence.[55]Is there a requirement that the alleged joint tortfeasor’s act in furtherance of the common design must play “an effective part” in the tort? In Credit Lyonnais v ECGD Stuart-Smith LJ stated (at 36) that there was “abundant evidence” that what Mr Pillai did in authorising the guarantees was pursuant to and in the furtherance of that common design and that the issue of the guarantees was “an essential part of the fraud” because without them Credit Lyonnais would not have purchased the bills of exchange. But again, the classic formulations of the “common design” liability in The Koursk and Unilever Plc v Gillette (UK) Ltd (see [46] above) do not require this. Nor does Hobhouse LJ’s formulation in the Credit Lyonnais case or Glidewell LJ’s in Unilever Plc v Chefaro Proprietaries Ltd [1994] FSR 135. Glidewell LJ stated only that there had to be “some act” in furtherance of the common design and did not refer to a requirement of causal potency.What is required is that there be “concerted action to a concerted end” (The Koursk), and that the defendant intends the act which in the event proves tortious (Unilever Plc v Gillette (UK) Ltd). In Credit Lyonnais v ECGD Hobhouse LJ’s formulation (at [46]) was that the defendant must have “joined in” the common design.[56]Mr Russell relied heavily on the statement of Peter Gibson LJ in Sabaf SpA v Meneghetti SpA [2003] RPC 14 at [59] that the defendant must have “made the [tortious] act his own”. But this must be seen in the context of the facts of that case, and is of limited assistance in the circumstances of the present case. The statement is in a paragraph dealing with the question whether it was possible to infer a common design in that case. It is not dealing with the quality of the act that will qualify as furthering a common design which has been established.[57]It is clear that merely facilitating a tort does not suffice to show a common design. It has been clear since before the decision in Belegging-en Exploitatiemaatschappij Lavender BV v Witten Industrial Diamonds Ltd [1979] FSR 59 (see [50] above) that “common design” joint responsibility is not established merely because a person sells a product to another which he knows is going to be used to commit a tort: see the discussion of Townsend v Haworth (1875) 48 LJ Ch 770 by Mustill LJ in Unilever Plc v Gillette (UK) Ltd [1989] RPC at 604. In Sabaf’s case all the defendant did was to supply and pass title to goods to MFI in Italy and to arrange for their importation into the United Kingdom. It was not possible to infer a common design from that. Absent a common design, all the defendant was doing was knowingly facilitating what turned out to be MFI’s breach of patent in the United Kingdom.[58]I have concluded that once a common design has been established, the question is whether the defendant who is said to be a joint tortfeasor has done something that has furthered that common design. Since it is the requirement of a common design that provides protection against indeterminate and uncertain liability, providing that the act furthering an undoubted common design is more than de minimis, I do not consider that there is a further hurdle requiring it to have been “an essential part” of or of “real significance” to the commission of the tort. The cases which may appear to give support to such a requirement are cases which are concerned with the prior question of whether there is a common design. In those cases the quality of the acts are scrutinised to see whether it is possible to infer a common design.

(b) The judge’s approach

[59]With that background, I turn to the judge’s approach in this case. The first and most important question is whether the judge was entitled to conclude that there was no “common design” which included violent intervention by cutting fishing nets. I start with the purpose of the Blue Rage campaign, and do so on the basis that the campaign was SSCS’s and that I am only concerned with its purpose. After considering that, I will turn to the questions whether SSUK made itself party to that purpose so that it became the common design of SSUK, SSCS and Mr Watson and, if it did, whether SSUK did an act in furtherance of that common design.[60]In the passage I set out at [22], the judge found that, although the Blue Rage campaign envisaged the possibility of violent intervention against property, such as cutting fishing nets, that was not its purpose or object. Its purpose or object was to “investigate, document, and take action when necessary to expose and confront illegal activities in relation to bluefin tuna fishing and that a preparedness to use violence did not necessarily mean that any such action would be taken.[61]I am very conscious that this experienced judge made this finding after hearing evidence from a number of those involved, including Mr Watson and Ms Essemlali. An appellate court can hardly ever overturn primary findings of fact by a trial judge who has seen the witnesses give evidence where the credibility of those witnesses was in issue. But in making this finding the judge did not refer to any oral evidence about the purpose of the campaign.[62]The statement the judge quoted at [49] of his judgment when making his finding about the purpose or object of the Blue Rage campaign is in identical terms to the statement from SSCS’s mission statement which he had set out at [11]. The only material about the objects, purposes and development of the Blue Rage campaign itself referred to in this part of his judgment was the mailshot I referred to at [9]. That stated:
“We intend to seize, cut, confiscate and destroy every illegal tuna fish net we find”
. The judge referred to that document at [47] when summarising the appellant’s case. But he did not consider it or the other documents specifically concerned with the objects and purposes of the Blue Rage campaign at [49] when making his finding about the purpose or object of the campaign.[63]The first of those documents is the January 2010 posting on SSCS’s website. It stated that the objective of the campaign was “to intercept and oppose” the illegal operations of blue fin tuna poachers and that “Sea Shepherd intended to confront the poachers”, and would not “back down to threats and violence from the fishermen”. While the second and third quotations may indicate only defensive action, they must be read in the context of the first. That clearly stated that the objective was to “intercept and oppose”. It went much further than the statement quoted by the judge at [49] which I have noted is in identical terms to the statement from SSCS’s mission statement which he set out at [11] and which gives direct action a secondary role to investigation and documentation.[64]Mr Watson’s emails dated 9 and 10 June (see [7]) are also important. They make it clear that intervention to achieve Sea Shepherd’s objective to free blue fin tuna from the nets and cages was imminent, albeit only the fish described as “illegally fished”. They also make it clear that a violent defence by the fishermen was anticipated. In the light of the terms of these documents and the terms of the mailshot it is difficult to regard the cutting of fishing nets and freeing fish from them and the cages as not an objective or purpose of the campaign even if the campaign also had other purposes.[65]Finally, there is the briefing document Mr de Groot prepared in April 2010 for what was called the “Mediterranean” campaign, which it is accepted was the “Blue Rage” campaign. In a section on international waters, this document refers to “finding illegal, unregulated and unreported” fishing vessels and identified the weakest link in the tuna fishing arrangements in the Mediterranean as the period when the tuna were transferred to the tuna farm by tugboats pulling cages. It stated “they drag the school of tuna behind their vessels. The have no security and are mostly operated by a very small crew”. This document thus identifies the time at which the tugboats and cages would be most vulnerable to “direct action”. Mr Davey’s submission that Mr de Groot prepared the briefing document as an employee of SSUK is unable to overcome the hurdle of the judge’s finding (at [55]) that the payment by SSUK to Mr de Groot was for his role as SSCS’s European Coordinator. This because it would seem to follow that that was the capacity in which Mr de Groot prepared the briefing document. But, in ascertaining the purpose of the Blue Rage campaign, if the briefing document was prepared by him as SSCS’s European Coordinator, it provides a significant indication of what SSCS’s purpose was in its “Blue Rage” campaign.[66]I am conscious that, as Thorpe LJ stated in Credit Lyonnais v ECGD at [48], it is dangerous to draw confident inferences from equivocal facts when assessing motives and intentions. I do not, however, consider that the documents in this case are equivocal. 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. But, it is to be recalled that in Unilever PLC v Gillette (UK) Ltd Mustill LJ stated that there was no need for the common design to be to commit the tort. It suffices that the parties have combined to secure the doing of acts which in the event prove to be tortious. I have concluded that in inferring from the documents before him that the purpose of the campaign was investigation, documentation, and exposing illegal activities but that it did not, notwithstanding the contents of these documents, encompass violent intervention, the judge fell into error.[67]I turn to the question whether SSUK made itself party to SSCS’s purpose so that it became the common design of SSUK, SSCS and Mr Watson. The judge accepted (at [49]) that SSUK was aware of and generally approved of the Blue Rage campaign. He then turned to the part played by SSUK and made the findings I have summarised at [23] – [24]. In the part of the judgment dealing with common design he did not consider the Trustees’ Report to which I have referred. He only considered it in the section of the judgment on the “capacity issue”. There (see above at [15]) he only referred to material under the heading “plans for the future”. He did not consider the material under the headings “objective, mission, and principal activity” and “public benefit” to which I referred at [10] – [11].[68]Mr Collis’s evidence was that those parts of the Trustees’ Report were not entirely accurate and that Mr Roest, then a trustee and director of SSUK as well as CEO of SSCS, had blurred the roles of the two organisations. The difficulty with this is that the Trustees’ Report was a public document prepared inter alia for the Charity Commission relating to the period in which the “Blue Rage” campaign took place. It was signed off by one of SSUK’s directors and trustees, who, despite his later misconduct, had apparent authority to do so. It is thus SSUK’s document and it sets out the activities which SSUK presents as fulfilling the public benefit that is required of it as a charity. Those activities include direct action and international activity. There are references to “enforcement of violations of international treaties”, and “international campaigns” including that in the Mediterranean in 2010 to protect the Bluefin tuna, which must be a reference to the Blue Rage campaign. Even if the contents of the Report did not mean that SSUK itself did those things, the Trustees’ Report is powerful evidence that SSUK joined in SSCS’s campaign and “joined in” what was a common design.[69]The judge stated that “investigating”, “documenting” and “exposing” illegal activities does not involve violent intervention, and that while “confronting” such activities may do so, it does not necessarily do so. Again, Mustill LJ’s statement that it suffices that the parties have combined to secure the doing of acts which, in the event, prove to be tortious, and do not have to have a common design to commit the tort is of assistance. The Trustees’ Report shows that SSUK had combined with SSCS to secure the doing of acts which, in the event, proved to be tortious.[70]I therefore turn to the question whether the judge erred in finding that SSUK’s participation was “of minimal importance and played no effective part in the commission of the tort”. Some of the conduct on which the appellant relied was found by the judge to have been done on behalf of SSCS. Some, for example, paying Ms Essemlali and Mr de Groot, paying for repairs to the vessel, only part of which was reimbursed, and the £110,000 provided to SSCS in December 2009 and March 2010, was not specifically for the “Blue Rage” campaign. The judge found that the “Blue Rage” mailshot was designed, organised and paid for by SSCS and posted to UK recipients on behalf of SSCS, rather than SSUK. But he also found that SSUK processed the funds for the “Blue Rage” campaign it received in response to this mailshot and sent them to SSCS. Additionally, on the facts found by the judge, SSUK, acting through Mr Collis, passed on the details of those who contacted him about assisting in dockside logistics to prepare for the campaign, one of whom sourced a pump for the “STEVE IRWIN”, and with another drove to the south of France and did a day’s work on the vessel: judgment, [53]. The judge also found (see judgment, [30]) that SSCS utilised the resources of other Sea Shepherd entities when it was convenient to do so, and in the case of the “Blue Rage” campaign, it utilised SSUK’s resources.[71]I have concluded that, in the context of a common purpose which included action to free blue fin tuna from nets and cages by intercepting the fishermen, even leaving aside acts by SSUK which were done for SSCS but not specifically for the “Blue Rage” campaign and what was said during the court proceedings in Seattle, the action of SSUK showed that it had “joined in” the common design by doing acts in furtherance of it. It does not follow from this that the volunteers who drove to France with parts for the vessel, or who supported the campaign by donating small amounts of money, would become joint tortfeasors. It would be necessary to show, in respect of any of them, that their actions amounted to more than facilitation of the tort. Absent evidence about them showing that they made the wrongful act their own, such as the evidence about SSUK, for instance in the Trustees’ Report, their cases appear analogous to those of the seller of goods who knows that they will be imported into the United Kingdom and sold in breach of a patent or copyright which I have considered at [50] and [57].[72]For these reasons, I would allow this appeal and answer the preliminary issue accordingly, that is on the “common design” basis of joint responsibility.

Lord Justice McCombe:

[73]I am grateful to my Lord, Beatson LJ, for his statement of the salient facts of this case and for his exposition of the principles of law in his judgment which I have read in draft. I agree entirely that this appeal should be allowed for the reasons given by him.[74]For my part, however, I have been concerned as to whether the appeal should also have been allowed on the “capacity” point.[75]In my view, it is difficult to see how Mr Watson could discard his position as a director of SSUK and say he was merely acting, on the occasion in question, only for SSCS. He was a director of SSUK, which was not merely a “shell company”. It had its own independent activities within the global Sea Shepherd organisation. With respect to the judge, I do not know what an “honorary” director of a company is. Either he was a director of SSUK or he was not. SSUK remained the legal owner of the vessel and, while it may not have been (on the judge’s finding) in possession or control of the vessel or its beneficial owner, it retained that status and had left the vessel in the control of SSCS for the purposes of, what this court finds, was the “common design” of the two entities.[76]Mr Watson’s name appears as a trustee and director in SSUK’s report to June 2010 in which SSUK’s public benefit role could not have been more clearly stated. That report, as Beatson LJ notes, was issued with the company’s authority. When the vessel and its crew, including Mr Watson, embarked upon the attack about which complaint is made, he was still a director of that company – a status which he could not shake off – carrying out one of SSUK’s express corporate objects. Was it open for him to choose, from minute to minute, the capacity in which he was acting? Both SSCS and SSUK wanted such attacks to occur, where required in furtherance of their common objectives. Mr Watson, it is accepted, was the overall directing mind of the operation and, in my judgment, might well be said to have been acting with the status in each organisation which, in fact, he held.[77]Nonetheless, as already said, I would allow the appeal for the reasons given by Beatson LJ.

Lord Justice Mummery:

[78]I agree that this appeal should be allowed for the reasons given in the judgment of Beatson LJ.

Cited in 6 later judgments