Sea Shepherd UK v Fish & Fish Ltd [2015] UKSC 10

Sea Shepherd UK was sued as joint tortfeasor after its US parent's vessel allegedly attacked a Maltese fish farm's tuna cage during Operation Bluerage. The Supreme Court, by majority, held SSUK's contribution (a small mailshot raising £1,730 and recruiting two volunteers) was de minimis and insufficient for accessory liability.

Facts

The claimant, Fish & Fish Ltd, operated a tuna fish farm off Malta. On 17 June 2010, the vessel ‘Steve Irwin’, commanded by Mr Paul Watson, allegedly attacked the claimant’s vessels in the Mediterranean, ramming a fish cage and releasing the bluefin tuna inside. The attack formed part of ‘Operation Bluerage’, a campaign launched by the US-based Sea Shepherd Conservation Society (SSCS) to disrupt what it regarded as illegal bluefin tuna fishing.

The appellant, Sea Shepherd UK (SSUK), is an English registered charity and subsidiary of SSCS. As the only defendant present in the UK, it was the anchor defendant for jurisdictional purposes. SSUK’s involvement in Operation Bluerage was limited: it had been involved in a mailshot soliciting funds (designed, organised and paid for by SSCS, but issued in SSUK’s name and using its bank account, raising £1,730 which was passed to SSCS), and the recruitment of two volunteers who sourced a pump and worked on board the vessel for a day.

Hamblen J held at first instance that SSUK’s role was of ‘minimal importance’ and ‘played no effective part in the commission of the tort’. The Court of Appeal reversed, holding SSUK liable as joint tortfeasor. SSUK appealed to the Supreme Court.

Issues

The preliminary issue was whether SSUK was liable as a joint tortfeasor with SSCS for the alleged tortious acts committed during Operation Bluerage, assuming those acts were tortious. This required the Court to consider:

• The legal elements required to establish accessory liability in tort;
• Whether SSUK acted pursuant to a common design with SSCS;
• Whether SSUK’s assistance was more than de minimis.

Arguments

Appellant (SSUK)

SSUK argued that its involvement was insufficient to constitute joint tortfeasorship. The vessel was beneficially owned and controlled by SSCS. SSUK did not actively solicit donations, the mailshot was prepared and sent by SSCS, and the small sum forwarded to SSCS was of minimal importance to the commission of the tort.

Respondent (Fish & Fish)

The claimant argued that SSUK shared a common design with SSCS to conduct Operation Bluerage, which expressly contemplated cutting fishing nets, and that SSUK had assisted by lending its name and bank account to the fundraising mailshot, processing donations, and recruiting volunteers.

Judgment

The Supreme Court allowed the appeal by a majority of 3-2 (Lords Neuberger, Kerr and Toulson; Lords Sumption and Mance dissenting), restoring Hamblen J’s order.

Legal principles (broadly agreed)

All five Justices agreed on the essential legal framework. Lord Neuberger identified three conditions for accessory liability: (i) the defendant must have assisted the commission of an act by the primary tortfeasor; (ii) the assistance must have been pursuant to a common design that the act be committed; and (iii) the act must constitute a tort against the claimant.

The Court endorsed the classic formulations in The Koursk [1924] P 140 and Mustill LJ’s statement in Unilever Plc v Gillette (UK) Ltd [1989] RPC 583, that tacit agreement suffices for a common design, and that the parties need only combine to secure the doing of acts which prove to be tortious. Mere facilitation, even with knowledge, is insufficient (CBS Songs Ltd v Amstrad [1988] AC 1013; Credit Lyonnais v ECGD [2000] 1 AC 486). The assistance must be more than de minimis, but need not be indispensable; relative importance can be reflected through contribution.

Application of principles

The majority held that Hamblen J was entitled to find SSUK’s contribution to be of minimal importance. Lord Toulson held that the only point of substance was the funding arrangements, but SSUK played no active role in fundraising and merely accounted to the parent for a small sum solicited by SSCS. Although he would have found common design satisfied (because conditional intent is intent), the conduct element was not established.

Lord Neuberger accepted that SSUK shared the common design with knowledge that tortious acts were intended, but held the assistance was nevertheless trivial. The mailshot was conceived, written, reproduced, circulated and paid for by SSCS; SSUK was ‘at best a sort of sleeping partner’. The recruitment of two volunteers and a day’s work involving a pump was de minimis. He emphasised the appropriate appellate restraint in interfering with a trial judge’s evaluative judgment.

Lord Kerr agreed, emphasising SSUK’s ‘passive, back-seat’ role and the appellate restraint required when reviewing evaluative findings of fact.

Dissenting judgments

Lord Sumption considered Hamblen J had failed to appreciate the legal significance of his findings. SSUK clearly shared a common design with SSCS, conditional intent being sufficient. The £1,730 contribution, though small, was not legally equivalent to nothing; the de minimis principle is concerned with extremes. Lord Mance agreed, noting that the mailshot was sent in SSUK’s name with its authorisation, and that the sum raised was ‘not insignificant’ particularly when viewed as part of SSCS’s international fundraising structure.

Implications

The decision authoritatively confirms the test for joint tortfeasorship: assistance plus a common design that the tortious act be committed. The Court rejected the suggestion that the law of tort should mirror criminal accessory liability, maintaining that mere knowing facilitation is insufficient.

The case clarifies several practical points:

• A ‘common design’ need not be expressly articulated; tacit agreement suffices.
• Conditional intent is intent: parties may share a common design to commit a tort ‘if necessary’ or upon a contingency.
• Assistance need only be more than de minimis; it does not need to be indispensable or commensurate with the primary tortfeasor’s role.
• Relative differences in contribution between joint tortfeasors are best addressed by apportionment and contribution, not by exoneration.
• Appellate courts should exercise restraint when reviewing a trial judge’s evaluative judgment on whether assistance crosses the de minimis threshold.

The decision is significant for practitioners advising on accessory liability across various tortious contexts, including intellectual property infringement, environmental campaigns, and group corporate structures. It illustrates the difficulty of imposing liability on subsidiary or associated entities whose role is peripheral, even where they share knowledge and approval of the principal’s activities. The case also demonstrates the fact-sensitive nature of such determinations and the limited scope for appellate interference.

The narrow 3-2 majority and divergent application of the same legal principles by the Justices indicates that borderline cases will continue to turn on judicial evaluation of the particular facts, with the de minimis threshold operating as a control mechanism preserving freedom to engage in lawful activities.

Verdict: Appeal allowed (by a majority of 3-2). The Supreme Court restored the order of Hamblen J dismissing the claim against Sea Shepherd UK, holding that although SSUK shared a common design with SSCS, its contribution to the commission of the alleged tort was de minimis and therefore insufficient to establish accessory liability as a joint tortfeasor.

Source: Sea Shepherd UK v Fish & Fish Ltd [2015] UKSC 10