From: Matthew Dyson <mnd21@cam.ac.uk>
To: obligations@uwo.ca
Date: 04/03/2015 14:50:54 UTC
Subject: Sea Shepherd and common design in tortious accessory liability ([2015] UKSC 10)

Dear All,

The Supreme Court handed down today its decision on the appeal in Sea
Shepherd UK (Appellant) v Fish & Fish [2015] UKSC 10. On appeal from
[2013] EWCA Civ 544

https://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0133_Judgment.pdf

In short, the case concerns ramming operations by SSCS, based in the US,
on this occasion for "operation bluerage"'s effects on a Maltese fish
farm business collecting fish. Was SSUK liable as a joint tortfeasor?
The link is that SSCS asked SSUK to mail the UK lists get raise funds.
Per Lord Sumption (in dissent on the facts):

[34] ... On 3 March 2010 SSCS emailed SSUK for a local mailshot appealin
g for funds for Operation Bluerage from “our supporters from within the
UK”. As the e
mail shows, the main reason for involving SSUK was to make use of bulk
mailing
services within the United Kingdom, and to enable donors to contribute
through sterling cheques to be handled by SSUK, sterling bank transfers
to SSUK’s account, or sterling credit card transfers through merchant
facilities to be acquired by SSUK. The mailshot was designed, organised
and paid for by SSCS but in the name of
and with the consent of SSUK, whose name and UK address appear at the
foot of the face page.

Ultimately, the test for liabilty is whether D:

1) facilitated P's tort (see, e.g., [22]); and
2) did so in pursuance of a common design.

The first was challenged on the facts, the second was the subject of
agreement in principle.

The majority (Lord Toulson, Lord Kerr and Lord Neuberger) reasoned that
the appellant's role in contributing funds was too small to generate
liability (as had Hamblen J at first instance) while the minority (Lord
Sumption and Lord Mance) held that it was more than de minimis and
therefore enough (following Beatson LJ in the CA).

On the test for common design, there was little innovation. The SC cited
the classic formulations of the test, wide as they are despite the
otherwise limiting nature of the common design requirement. E.g.,

21. The nature of a ‘common design’ was explained by Mustill LJ in
Unilever v Gillette [1989] RPC 583, at p 609:

‘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 formed part of a statute. They all convey
the same idea. This 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 a 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.’

22. 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.

23. As explained by Hobhouse LJ in his judgment in Credit Lyonnais v
ECGD [1998] 1 Lloyd’s Rep 19 there is no tortious liability for aiding
and abetting or facilitating the commission of a tort, even knowingly.
There may, however, be such a liability if that is done pursuant to a
common design. He treated this as an example of liability based on agency

Lord Toulson also notes that while one might have expected the civil and
criminal law to develop in similar ways, they have not: [20]. Readers
may be interested in Paul S. Davies' work on this, e.g., P S Davies,
'Complicity' in M Dyson (ed), /Unravelling Tort and Crime/ (CUP 2014),
discussing the CA decision and more generally, P S Davies, Accessory
Liability (Hart 2015), as well as Joachim Dietrich's 'Accessorial
liability in the law of torts' (2011) 2 LS 231. That said, it is
remarkable that criminal law and tort law both use "common" in respect
to certain secondary liability situations, and neither have a clear and
unambiguous meaning. At least tort law does not seem to be following the
same route that criminal law is, and having extensive liability heaped
on individuals largely without relevant responsability or culpability.

as ever

Matt

--
Dr Matt Dyson
Trinity College, Cambridge
CB2 1TQ
+44 (0)1223 338520
www.trin.cam.ac.uk/law
Twitter: @TrinityLawCam

View my research on my SSRN author page:
http://ssrn.com/author=1729519