Slipping through the net? Joint tortious liability in English law

1. Introduction

The net of civil liability in English law does not currently stretch to liability for knowingly aiding and abetting a tort. Some scholars have advocated a broader approach, arguing that liability in tort should be analogous to that found in criminal law. (See Paul Davies, Accessory Liability for Assisting Torts, Cambridge Law Journal 70(2), July 2011, pp.353-380.)

But as things stand, English case law distinguishes the position in tort from that found in criminal law (see Lord Templeman in CBS Songs Ltd v Amstrad plc [1988] AC 1018 at 1059: “it is a mistake to compare crime and tort”; Lord Woolf in Credit Lyonnais v ECGB [2000] AC 486 at 500: it is “unhelpful” to draw an analogy between criminal law and civil law; and Hobhouse LJ in Credit Lyonnais v ECGB [1998] 1 Lloyd’s Rep 19: there is no tortious liability for aiding and abetting or facilitating the commission of a tort, even knowingly).

English law does, however, impose civil liability where assistance to a tort is given as part of a common design. From an international criminal law perspective, we might instinctively think of this as liability on the basis of “joint tortious enterprise”. English cases do not use such terminology.  They talk instead of “joint torts” or “joint tortfeasance”.

The UK Supreme Court recently confirmed and applied existing English law on joint torts in Fish & Fish Ltd v Sea Shepherd UK [2015] UKSC 10. It is a deceptively remarkable case, involving an allegation of deliberate damage to fishing nets. Although the Justices broadly agreed on the law, they split when applying the law to the facts. By a bare majority of 3:2, the Supreme Court decided that the defendant – the English subsidiary in a group of marine environmentalists – was not liable as a joint tortfeasor. Although the English subsidiary was held to have shared a tortious common purpose, the majority held that its contribution was too small for liability to be imposed. The case deserves careful scrutiny because it raises points relevant to the contours of liability for assisting torts committed by others.

This post first summarises the alleged facts, the judgments below and explains the unusual basis on which the points about joint tortfeasance arose. Secondly, I summarise the current law on joint tort liability as confirmed by the Supreme Court. Thirdly, I consider how the Justices applied the law to reach such divergent views of the facts. Finally, I make five observations on the significance of this case.

2. The facts alleged, the judgments below and how joint tort liability arose

Fish & Fish Limited (the “Claimant”) ran a fishing business in the Mediterranean. On 17 June 2010, the Claimant was transporting tuna in cages at sea when its vessel was attacked by another vessel called the “Steve Irwin”.

The attack was part of “Operation Blue Rage”, a campaign organised by the Sea Shepherd Conservation Society (“SSCS”). The purpose of Operation Blue Rage was to combat the overfishing of Bluefin tuna. The details of what occurred remain disputed – the appeal proceeded on the basis of a preliminary point rather than following a full trial. But in summary, the Claimant denied that the fish were caught illegally; it alleged that its cages were rammed, that divers from the Steve Irwin forced open a cage and tore nets, releasing some 33 tonnes of (valuable) fish.

Bluefin tuna (Credit: Tom Puchner under Creative Commons)

SSCS is an American-based organisation founded by Mr Paul Watson, a Canadian environmentalist and US citizen. Mr Watson captained the Steve Irwin on 17 June 2010. SSCS has a network of subsidiaries in various countries, including the UK where the relevant entity is Sea Shepherd UK (“SSUK”). Mr Watson was also director of SSUK.

The Claimant brought a claim in England against SSUK, SSCS and Mr Watson, relying on the torts of trespass and/or conversion. At the trial of preliminary matters, Hamblen J found that the capacity in which Mr Watson acted was for SSCS rather than SSUK. This finding was significant. It meant that the Claimant had to rely instead on SSUK’s alleged participation in the alleged common enterprise and participation which was remote in time and place from the events in the Mediterranean on 17 June 2010. Hamblen J’s logic was that SSUK could only be liable if it shared the common purpose with SSCS and Mr Watson and assisted the acts which led to the alleged tort. SSUK was therefore the “anchor” defendant in order for the English court to have jurisdiction over SSCS and Mr Watson. As a consequence of Hamblen J’s finding on the capacity in which Mr Watson acted, if no claim could be made out against SSUK on the basis of common enterprise, the claims against SSCS and Mr Watson would fall away as well.

Turning to the question of joint liability in tort, Hamblen J made the following key findings:

(A) SSUK did not share a common purpose with SSCS and/or Mr Watson to commit the alleged tortious acts.

• According to Hamblen J, although Operation Blue Rage envisaged the possibility of violent intervention against property, such as cutting fishing nets, violence was not its purpose or object.

• Rather, the purpose or object of Operation Blue Rage was to investigate, document, and take action when necessary to expose and confront illegal activities.

• A preparedness to use violence did not, in Hamblen J’s view, necessarily mean that a tort would occur.

• Hamblen J therefore concluded that SSUK did not share the necessary intent for joint liability in tort.

(B) SSUK’s assistance to Operation Blue Rage was too negligible.

• Although SSUK provided general funds to SSCS (including £30,000 in December 2009 and £80,000 in March 2010), its specific assistance to Operation Blue Rage was limited to:
  

  – implementing a UK fundraising mailshot which raised the relatively small sum of £1730; and

  – recruiting two volunteers, one of whom sourced a pump for the Steve Irwin then he and the other volunteer travelled to France and performed some work on the vessel while she was in port.

• Although the Steve Irwin was registered to SSUK, Hamblen J found that in reality she was beneficially owned and operated by SSCS.

Hamblen J concluded that SSUK’s role was remote in time and place, “of minimal importance and played no effective part in the commission of the tort” (para. 59). In all the circumstances, SSUK’s assistance was so negligible that it could not be held liable for what eventuated on 17 June 2010. He therefore struck out the claim.

A unanimous Court of Appeal (Mummery, McCombe and Beatson LJJ) reversed Hamblen J’s decision. Beatson LJ gave the leading judgment, holding that:

• The confrontation on 17 June 2010 was part of a common design to which SSUK was a party; and

• Provided that any contribution to a common design is more than de minimus, liability should follow. The Court of Appeal concluded that the Claimant was entitled to proceed with its claim in England against SSUK and, in consequence, the other defendants.

3. The Supreme Court’s judgment

By a majority of 3:2, the Supreme Court reversed the Court of Appeal and restored Hamblen J’s decision to strike out the claim. The majority consisted of Lords Toulson, Neuberger and Kerr. The minority consisted of Lords Sumption and Mance. Where the Justices disagreed with each other and, in the case of the majority, with the Court of Appeal, was the application of the law to the facts. But first, a summary of the relevant law as explained by the Supreme Court.

A door closed on aiding & abetting liability in tort? (Credit: Shark Attacks under Creative Commons)

(A) The law of joint liability in tort

Three of the Justices expressly confirmed that English law distinguishes between accessory liability in criminal law compared to tort law (Lord Toulson, para. 20; Lord Sumption, para. 39; Lord Kerr, para. 88.). This was even though, as noted by Lord Toulson, the point had not been raised by the parties – nobody argued that liability should ensue for (“merely”) aiding and abetting a tort.

Whereas criminal liability is said to attach to any act of assistance with knowledge of the circumstances constituting the offence, it not being necessary to prove intention that the offence be committed, liability in tort requires proof of a common intent that the act amounting to the tort be perpetrated. Lord Toulson summarised the position as follows:

To establish accessory liability in tort it is not enough to show that D did acts which facilitated P’s commission of the tort. D will be jointly liable with P if they combined to do or secure the doing of acts which constituted a tort. This requires proof of two elements. D must have acted in a way which furthered the commission of the tort by P; and D must have done so in pursuance of a common design to do or secure the doing of the acts which constituted the tort. I do not consider it necessary or desirable to gloss the principle further. (para. 21)

Lord Sumption summarised “classic statements” in the case law on joint tortfeasance as follows:

[T]he defendant will be liable as a joint tortfeasor if (i) he has assisted the commission of the tort by another person, (ii) pursuant to a common design with that person, (iii) to do an act which is, or turns out to be, tortious. (para. 37)

Lord Neuberger summarised the position as follows:

[I]n order for the defendant to be liable to the claimant […], three conditions must be satisfied. First, the defendant must have assisted the commission of an act by the primary tortfeasor; secondly, the assistance must have been pursuant to a common design on the part of the defendant and the primary tortfeasor that the act be committed; and, thirdly, the act must constitute a tort as against the claimant. (para. 55)

(B) The application of the law to the facts

The level of contribution required

The outcome turned on the Justices’ differing assessments of SSUK’s contribution to the common purpose and the deference to be given to Hamblen J’s first instance findings.

The majority concluded that the trial judge’s finding that SSUK’s role was too minimal should not have been disturbed by the Court of Appeal.

• Lord Toulson  held that the trial judge’s finding that SSUK’s role was “minimal” meant that the conduct element for joint tortious liability was not established (para. 27).

• Lord Neuberger emphasised that it is not the role of an appellate court to make its own assessment of the evidence. Lord Neuberger concluded that Hamblen J was entitled to find that SSUK “played no effective part in the commission of the tort.” SSUK’s assistance was “trivial” in the context of the operation as a whole (para. 72).

– In relation to the money funnelled by SSUK to SSCS for Operation Blue Rage, this was insufficient to establish liability because Hamblen J had found that SSUK had not used its own initiative or incurred costs in doing so: the mailshot had in fact been organised, funded and solicited by SSCS; SSUK had merely allowed its name to be used (paras. 74, 77, 79). All that SSUK did was not object to the use of its name and bank account in the mailshot (para. 79).

– In relation to the volunteers, any connection to Operation Blue Rage was “tenuous” and there was no evidence that the pump or the volunteers’ work was connected to the particular operation, as opposed to the sea worthiness of the vessel in general (para. 72).

• Lord Kerr held that in “hard, practical terms” SSUK had adopted a passive “back-seat” role (para. 85). Hamblen J’s findings that SSUK’s role was of minimal importance should have been left untouched by the Court of Appeal. SSUK did not itself produce the mailshot or actively seek donations (para. 84). Merely passing money through an account was not“ concerted action to a common end” (para. 88). Recruiting two volunteers to source and supply a pump and to carry out work could not sensibly be regarded as having made more than a de minimus contribution to the enterprise (para. 89).

Lords Sumption and Mance disagreed. They considered that, if Hamblen J had intended to say that SSUK’s role was de minimus, that conclusion could and should be reversed.

• Lord Sumption stressed that while de minimus is an imprecise concept, it is concerned with extreme and trivial matters: the £1730 raised by SSUK could not be described in that way (para. 57).

• Lord Mance agreed with Lord Sumption: He held that “Every little helps” (para. 99).

The common purpose

In the Court of Appeal, Beatson LJ held that “it is the requirement of a common design [in tort] that provides protection against indeterminate and uncertain liabilities.” (see [2013] EWCA Civ 544, para. 58.) In the Supreme Court, Lord Toulson noted that scholars have criticised this distinction drawn between crime and tort in English law. But he stated his view that, although the parties had not raised the issue, “there is much to be said for keeping the law in this area as simple as possible” (para. 20) – ie tort should not follow criminal law.

Lord Toulson (para. 27) and Lord Neuberger (paras 65-66) were satisfied that SSUK’s conditional intent and/or preparedness to use violence in the event that Operation Blue Rage was met with resistance – was sufficient to find that SSUK shared the necessary common purpose.  Lord Sumption agreed, stressing that the express purpose of Operation Blue Rage was to “seize, cut, confiscate and destroy” (para. 46). The Supreme Court therefore agreed with the Court of Appeal, and reversed Hamblen J, on the factual issue as to whether SSUK shared the common purpose.

Casting a net, but not as far as aiding and abetting (Credit: Vern Fong under Creative Commons)

4. Five observations on the significance of this case

The result in the Supreme Court turned on differing applications of the law to the facts. At first sight, such a case might appear to be of little broader significance, other than to highlight the fact sensitive nature of such cases.

But this case is much more interesting and instructive than it might appear at first. It offers important lessons, and raises difficult questions, for lawyers litigating allegations of complicity in torts committed by others. I would make five observations about it.

(A) Low conduct threshold

First, the Supreme Court confirmed that joint liability in tort requires a high mental threshold, but a low conduct threshold. As a conduct element, anything more than a “minimal” contribution could give rise to liability in tort. To practitioners with a background in international criminal law, this might seem surprising as joint criminal enterprise liability requires any contribution to have been “significant” before (criminal) liability might arise. It therefore seems that, in this respect at least, English law is quicker to impose civil liability.

(B) Applying the low conduct threshold flexibly

Secondly, although the conduct threshold is a low one, it can be quite difficult to apply in practice. When deciding whether a contribution is more than minimal, the Supreme Court took an inconsistent approach to various contextual matters, and proceeded in a technical way. For example, the Supreme Court Justices focused on the narrow conduct elements as found by Hamblen J, then reached different conclusions as to how they should be interpreted. The majority tended to stress that SSUK had not used its own initiative or incurred costs; it had acted in a “passive” way when contributing to Operation Blue Rage. Notably, the Supreme Court also proceeded on the basis that SSUK’s contribution had to have been to Operation Blue Rage specifically, rather than SSCS’s purposes generally. That may be right in theory, but the result then seems to turn on the accounting treatment given to the £1730 and minimises the much larger contributions made by SSUK around the same time (between December 2009 and March 2010, SSUK provided £110,000 to SSUK by way of “general fundraising”.)

Moreover, none of the Supreme Court Justices dealt with the fact that Mr Watson was a director of SSUK. They were content to proceed on the basis of Hamblen J’s finding that the capacity in which Mr Watson acted was limited to SSCS, and he was merely an “honorary” director of SSUK. By way of contrast, in the Court of Appeal McCombe LJ wrote a short judgment in which he criticised this aspect of Hamblen J’s findings, stating the he did “not know what an ‘honorary’ director of a company is.” He further held that Mr Watson’s status as a director of SSUK was not a status that he could “shake off”. This highlights the importance of litigating such matters fully at first instance.

(C) Potential unfairness

Thirdly, there is a potential unfairness with the de minimus threshold in that liability in tort is joint and several. This means that a joint tortfeasor is potentially on the hook for the totality of any damages award, rather than an amount proportionate to their (conceivably only marginally more than de minimus) role. However, three of the Justices referred to the possibility of apportioning damages between tortfeasors by making contribution orders between them. But they did so in a way that raises further questions.

• Lord Sumption noted that the “ordinary response of the law to differences between the culpability of joint tortfeasors or between the causal efficacy of their contributions is an award of contribution.” (para. 49)

• Lord Neuberger stated that “once assistance is shown to be more than trivial, the proper way of reflecting the defendant’s relatively unimportant contribution to the tort is through the court’s power to apportion liability, and then order contribution, as between the defendant and the primary tortfeasor.” (para. 57)

• Lord Mance similarly noted the possibility of contribution between SSUK and SSCS. (para. 100)

The obvious problem with contribution orders is that they are only of use if the party so ordered has the means to make their contribution. Cases might arise where the primary wrongdoer does not have sufficiently deep pockets to satisfy their “share” of the award of damages. The Supreme Court rather glossed over this difficulty.

(D) Why did this case reach the Supreme Court?

Fourthly, if this case really was just about differing applications of the law to facts, it is curious that it reached the Supreme Court at all. It is highly unusual for questions over the application of settled law to particular facts to reach the UK’s highest court. The test in order to be granted permission to appeal to the Supreme Court is whether a case raises an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and reviewed on appeal.

One possible reason why this case nevertheless reached the Supreme Court might be that the Justices who  granted the Claimant permission to appeal (see decision of Lords Neuberger, Clarke and Carnwarth dated 9 January 2014) considered that that the Court of Appeal had been too interventionist with first instance findings, thus raising an issue of broader principle. Indeed, Lord Kerr’s judgment on the substantive appeal emphasises the level of restraint that an appellate court should apply.  Lords Neuberger and Toulson were also critical of the Court of Appeal’s decision to reverse the trial judge’s findings on whether SSUK’s satisfied the conduct element.

This case therefore includes a curious twist in that Supreme Court Justices who criticised the Court of Appeal for reversing Hamblen J’s findings in relation to the conduct element, nevertheless felt able to reverse Hamblen J’s findings as to SSUK’s intentions (as the Court of Appeal had also done).

Arguably the different approaches to the degree of deference owed by an appellate court to first instance findings can be explained because the purpose of Operation Blue Rage was set out in documents and not dependent upon oral evidence heard only by the trial judge. But it seems to be quite a difficult line for the those judges to hold because they could quite easily have drawn different inferences from the primary facts established at trial – including the fact that Mr Watson was a director of SSUK.

(E) The mental element of joint tort liability: might aiding and abetting be revisited?

Fifthly, even if it is correct that liability in English tort law requires proof of a common purpose, and this is viewed as the limiting factor on the reach of tortious liability, there exists considerable leeway in order to prove a common purpose amongst alleged joint tortfeasors. In his review of case law on joint tortfeasance, Lord Sumption acknowledged that there are examples where “the evidence of common design may fairly be regarded as thin” (at para. 38). A common design can be inferred from surrounding circumstances.

It is of note that the Justices’ summaries of the law are clear that the common design need only be to do an act that turns out to be tortious. In the words of Lord Neuberger, the defendant must have “been party to a common design to commit, the act that constituted, or gave rise to, the tort” (para. 60). It does not matter whether the defendant appreciates that the acts are tortious (para. 66).

It therefore seems unlikely that mere foresight of a possible tort is sufficient. Lord Neuberger used language of “inevitability” of a tort being committed. Indeed, this was a case about “conditional intent” – the common purpose being that if certain circumstances arose then, so the judges concluded, an act amounting to a tort would be committed.

Nevertheless, it seems that English courts will be flexible in their approach to identifying and applying the (mental) element of joint tort liability. In future cases, there could be uncertainty as to what must be pleaded and proved as making up the alleged common enterprise.

What is clear, however, is that mere knowledge that another person will commit a tort is insufficient to give rise to tortious liability. Lord Sumption justified the distinction between tort and crime on the basis that “aiding and abetting the commission of an offence is itself an offence distinct from the primary offence” (para. 39). Lord Sumption reasoned that both in England and the United States, the principles of accessory liability in tort have been worked out mainly in relation to the infringement of intellectual property rights (para. 40). He considered a number of examples from both jurisdictions which take a more restrictive approach compared to English criminal law.

One wonders whether English courts might still be asked to revisit aiding and abetting as a viable and fair mode of tortious liability, for example with strict knowledge standards but a higher conduct element (substantial contribution to the tort rather than a de minimus contribution). This would require a claimant willing to pursue the point to the Supreme Court, where it might face an uphill struggle. But Lord Sumption’s citation of US cases in the field of intellectual property rights omits other lines of US cases which, applying US domestic law, appear (in certain circumstances) to impose aiding and abetting liability on the basis of a knowledge standard. The Restatement (Second) on Torts Section 876 provides as follows:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he […]

(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself [….]

The US position and Lord Sumption’s reliance on it deserve careful analysis. This will be explored further in future posts.

5. Conclusion

The importance of the Supreme Court’s decision in Fish & Fish Ltd v Sea Shepherd UK [2015] UKSC 10 should not be overlooked. At first sight, it appears to be of minor importance because the result turned on the Justices’ differing application of the law to the facts. But it includes an important illustration of the elements of joint liability in tort. It raises difficult questions that might be litigated again in future, particularly in cases involving alleged liability for torts committed by others.