Dear Colleagues,

An English Court of Appeal decision today considers the circumstances in which there can be joint responsibility in tort, examining the requirements of a common design and acts done in furtherance of that common design (Unilever Plc v Gillette (UK) Ltd [1989] RPC 583). Fish & Fish Ltd v Sea Shepherd UK & Ors [2013] EWCA Civ 544 concerned damage to the property of Fish & Fish as part of a campaign against what Sea Shepherd UK and other defendants considered to be illegal fishing for Bluefin tuna ('Operation "Blue Rage"'). One of F&F's vessels was attacked while out fishing, resulting in damage to a cage and the release by the protestors of around half of the catch of fish. It was alleged that 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".

It is confirmed that mere facilitation, even with knowledge, does not suffice for joint responsibility. Beatson LJ giving the main judgment for the Court, refers to a lot of academic literature including several ODG members. His Lordship concludes (at [58]) 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."

On the particular facts, the Court allows appeal, holding that the SSUK had 'joined' in the common design.

There is a separate background point about capacity, which might interest those with knowledge of the liability of directors (particular McCombe LJ's short concurring speech in which he expresses some incredulity at the approach below: "With respect to the judge, I do not know what an "honorary" director of a company is... Was it open for [Mr Watson] to choose, from minute to minute, the capacity in which he was acting?").

Best wishes,
James
--
James Lee
Lecturer and Director of Careers
Academic Fellow of the Inner Temple
Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk<mailto:j.s.f.lee@bham.ac.uk>



Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx


SSRN: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1192219