Lloyd's Maritime and Commercial Law Quarterly
JOINT AND ACCESSORY LIABILITY FOR WRONGS IN PRIVATE LAW
Gerard McMeel *
The Steve Irwin
A joint tortfeasor is fully liable for all the losses suffered by a claimant.1 Therefore, the test for establishing when a person who has participated to some degree in another’s wrongdoing is liable is an important one, and is crucial in cases where the principal wrongdoer may not be a financially worthwhile defendant to sue, or is outside the jurisdiction. In The Steve Irwin
2 the Supreme Court has considered the appropriate test for this species of joint liability, and has confirmed the nine-decades-old approach of the Court of Appeal in The Koursk.3 Each member of that distinguished court approved the crisp statement in the then current edition of Clerk and Lindell on Torts:4
“Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in the furtherance of a common design. …But 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 other classic statement is that of Mustill LJ in Unilever Plc v Gillette (UK) Ltd:5
“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.”
In The Steve Irwin the Supreme Court were unanimous in their support for the traditional tests, but seriously divided about their application to the assumed facts.
Proceedings were commenced in the Admiralty Court by the claimant, which operated a fish farm off Malta. It claimed damages for trespass and conversion against three defendants for damage to its cages and tuna fish in its possession. The second defendant (“SSUS”) was a Washington State-based conservation charity using direct action tactics to confront what it perceived to be illegal fishing. The third defendant is a US citizen, the founder of the charity, and was in charge of the eponymous vessel on the day of the alleged incident. The first defendant (“SSUK”) was a UK-registered charity, the legal owner of the vessel, and part of a worldwide network of entities linked to SSUS. It was
1. Two well-established categories of joint tortfeasorship are the principal’s liability for his agent’s tort and the employer’s vicarious liability for an employee’s wrongdoing. A defendant may also be jointly liable by procuring a tort through inducement, incitement or persuasion: CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013, 1058 (Lord Templeman). We are concerned with the further category of “common design”, which has proved the most problematic to apply in practice.
2. Fish & Fish Ltd v Sea Shepherd UK (The Steve Irwin) [2015] UKSC 10; [2015] 1 Lloyd’s Rep 593; [2015] AC 1229.
3. [1924] P 140.
4. 7th edn (1921), 59. See [1924] P 140, 151–152 (Bankes LJ), 156 (Scrutton LJ) and 159 (Sargant LJ).
5. [1989] RPC 583, 609.
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