New Supreme Court Judgment on Common Design liability
The Supreme Court has clarified the test of ‘common design’ liability, where one party assists or participates in the tortious activity of another.
Sea Shephed UK is the UK branch of a major US charity devoted to protecting fisheries and marine biodiversity. In June 2010, as part of a campaign called ‘Blue Rage’, a ship carrying Sea Shepherd volunteers and funded by Sea Shepherd rammed the tuna cages of the Respondent and forced several open, before being driven off with rubber bullets. The Respondent sued SSUK, alleging that by participating in fundraising for the ‘Blue Rage’ campaign and by recruiting two volunteers it had participated in the common design of its US parent and was therefore jointly liable for its actions.
Lord Toulson giving the lead judgment found that a defendant will only be jointly liable for the tortious acts of the principal if the defendant: (i) acts in a way which furthers the commission of the tort by the principal; and, (ii) does so in pursuance of a common design to do or secure the doing of the acts which constitute the tort. Lord Sumption broadly agreed, but Lord Neuberger declined to lay down a fixed test, preferring to maintain a fact-specific approach.
In the application of this test to the facts, their lordships were split 3-2, the majority finding that SSUK’s involvement was too minimal to incur liability.
This case demonstrates the breadth of the ‘common design’ liability and should be a warning for those funding or recruiting for potentially tortious activities elsewhere. SSUK only raised £1,730 in funds, but found itself embroiled in extensive litigation which, although ultimately successful, dwarfed the scale of its initial involvement.