Whether charities liable for damage caused by protesters depends on factual connections, says expert

The five Supreme Court judges were split over the circumstances in which an environmental charity could be held liable for damage caused by protesters. Their judgment, although ultimately bad news for the company in this case, provides useful analysis of when an NGO or campaigning group could be found acting in "common design" with protesters.

It is becoming increasingly common for businesses to find themselves the focus of, or caught up in, protests about some current topic. That protest may, of course, be peaceful and lawful – or it may not. While there are sensible steps that can be taken to reduce or minimise the damage caused at the hands of unlawful protesters, businesses can end up substantially out of pocket - with little chance of recovering their losses from individual protesters, assuming they can be traced, or ad hoc protest groups.

However, not infrequently NGOs or similar groups may be closely connected with the protests, and may even have assets which could be used to pay for the damage. Being able to pin liability on one of these groups is clearly in the interests of affected businesses. The legal concept of joint liability means that one party can be pursued for all damages due in a case regardless of its individual share of the liability, leaving that party to pursue the others for their contribution.

In a case between marine conservation charity Sea Shepherd's UK arm and fish farm company Fish & Fish the UK Supreme Court had to decide whether the charity could be held liable for the actions of protesters organised primarily by a Sea Shepherd group in the US. Sea Shepherd UK owned the boat used by the protesters, who were seeking to disrupt tuna fishing in the Mediterranean, and their mailing list had been used to solicit donations which had led to a modest sum being passed on to the US organisers. They had also attempted, with very limited success, to recruit volunteers.

All five Supreme Court judges agreed on the principles which should be applied to make a party jointly liable. There were two essential elements: assistance in the commission of what turned out to be an unlawful act; and that it was pursuant to what was described as a "common design" or "common intention". Whether the UK charity's contribution to the unlawful acts was significant was not critical, provided it was not so trivial as to be capable of being legally ignored. That was a fact-sensitive decision, primarily for the original High Court judge to decide.

On the particular facts of this case, the majority of the judges concluded that the 'first instance' High Court judge had been entitled to find that Sea Shepherd UK's contribution was minimal. His decision  not to hold them jointly liable should not therefore be interfered with. Two of the judges, Lords Sumption and Mance, disagreed. They took the view that sending out the fundraising mailshot and the raising of at least some funds from that mailshot could not be described as so trivial as to be legally irrelevant. They would therefore have overturned the judge.

The decision on the facts of this case may be disappointing because liability was not assigned to a party capable, at least in theory, of paying for the damage. However, the exploration of the issues is nevertheless valuable. That discussion may not provide much comfort to a potential target – but may give some hope to those suffering damage which would otherwise fall to be uncompensated.

Craig Connal QC is a litigation expert at Pinsent Masons, the law firm behind Out-Law.com.