OUTER HOUSE, COURT OF SESSION
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P973/11
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OPINION OF LORD GLENNIE
in the petition of
CAIRN ENERGY PLC Petitioner;
against
(FIRST) GREENPEACE LTD, (SECOND) GREENPEACE UK LTD, (THIRD) STICHTING GREENPEACE COUNCIL, (FOURTH) GREENPEACE ENVIRONMENTAL TRUST LIMITED and (FIFTH) PERSONS UNKNOWN Respondents:
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Petitioner: Dean of Faculty, Walker; Balfour + Manson LLP
Third Respondents: Aidan O'Neill QC, Van der Westhuizen; Patrick Campbell & Co, Solicitors
27 March 2013
Introduction
[1] The
petitioner is a company involved in, amongst other things, the exploration and
exploitation of petroleum resources in Greenland and the North Sea. The first,
second, third and fourth respondents, and possibly also the fifth, are all part
of what may, for present purposes, loosely be called the Greenpeace "network"
("Greenpeace"). Greenpeace is well known for its campaigns on environmental
issues.
[2] The
present proceedings concern events that occurred on 18 July 2011 at the
petitioner's premises at 50 Lothian Road, Edinburgh. The petitioner alleges
that the respondents, including the third respondent, were engaged in the
organisation and coordination of an illegal invasion and occupation of its
premises by Greenpeace activists.
[3] The
petitioner's averments concerning that invasion and occupation are to the
following effect. At about 8:20 a.m. some 40 or so activists invaded their
offices on the fourth and fifth floors at 50 Lothian Road. Some were dressed
as polar bears. They "ran amock" through the offices, occupying the fifth
floor office space and the fourth floor vestibule, ransacking rooms and desks
and rifling through cabinets. They caused a nuisance, preventing the
petitioner and its staff from engaging in the lawful conduct of their
business. They occupied the reception areas and interfered with the phone
systems. Some of them chained themselves to desks. As a result, the petitioner
and its staff were severely inconvenienced and disrupted and the staff had to
vacate areas of the office and eventually had to go home on the direction of
the police. The activists posted messages on social networking sites making it
clear that they intended to remain on the premises indefinitely. After a few
hours, some of the activists left; but the remaining 20 or so activists
remained in the premises locked in offices and/or chained to desks until
removed by the police later in the day. It is clear that the activists were
looking for, amongst other things, the petitioner's Oil Spill Response Plan to
which I shall refer more later in this Opinion. The activists took pictures of
sensitive commercial information, information which is of commercial value to
competitors of the petitioner. While the fact of the environmental activists
entering the petitioner's premises on that day was admitted by the third
respondent, the details were denied. However, the general nature of what went
on that day was supported by affidavit evidence (see below) and was not
seriously in dispute.
[4] On 18 July
2011the petitioner obtained interim interdict ex parte against the first
to fourth respondents, interdicting them from (1) entering upon the
petitioner's premises at 50 Lothian Road, Edinburgh, (2) instructing,
procuring, assisting, facilitating or encouraging others or doing any act
calculated to disrupt or to attempt to disrupt or to prevent, impede or
interfere with the petitioner's lawful business operations and (3) disseminating,
printing, uploading, sharing, copying or otherwise publishing any images,
photographs, pictures or other material (or copies thereof) taken or recorded
by Greenpeace activists present within the petitioner's premises at 50 Lothian
Road, Edinburgh on or around that date. At the hearing before me, the Dean of
Faculty on behalf of the petitioner accepted that, if permanent interdict were
granted, para. (2) should be limited to acts done or threatened in
Scotland.
[5] Subsequently,
on 26 July 2011, on the petitioner's motion, interim interdict was recalled in
so far as directed against the fourth respondent; and an order was made
refusing the prayer of the petition against that respondent. On 11 July 2012
the first and second respondents, collectively referred to as "Greenpeace UK",
each gave an undertaking to the court in place of the interdict, and the
petition in so far as directed against them was dismissed.
[6] The third
respondent has given no similar undertaking. It denies being a party to the
action in the petitioner's premises on 18 July 2011. Its position is that the
action was undertaken by and on behalf of Greenpeace UK. That is the position
which Greenpeace UK itself adopts. The third respondent maintains that it did
not organise or execute the protest. Its only involvement was to alert its
press contacts and its own supporters to the protest. The petitioner
challenges that account of events. No doubt partly with an eye to the future,
it wishes to establish its case against the third respondent which it regards
as legally or de facto behind all or most of the activities of
Greenpeace. Accordingly, the present proceedings continue against the third
respondent, and only against the third respondent; and the issue is whether the
third respondent was involved in that action on 18 July 2011 as alleged by the
petitioner.
[7] By consent
of both parties, directions were given requiring them to exchange affidavits of
witnesses from whom evidence was to be led, with a provision that each party
should, if so advised, give notice of its intention to cross examine any
particular witnesses for whom affidavits had been exchanged. Any witness in
respect of whom notice was given would be called to give evidence and his or
her affidavit would stand as evidence in chief; but if no such notice was given
in respect of any witness, then the affidavit of that witness was to be taken
as his or her evidence without the need for him or her to be called. In the
event I heard live evidence from Morag McCracken and William Keil for the
petitioner and Jasper Teulings for the third respondent. The evidence of
other witnesses was adduced in affidavit form without them being called. In
addition, a number of important matters were agreed in detailed joint minutes
of admission. As a result, the scope of the factual dispute between the
parties at the proof was relatively narrow.
The third respondent and the Greenpeace network
[8] The third
respondent has its registered office in the Netherlands. It is commonly known
as "Greenpeace International", abbreviated to "GPI". In the petition and
answers lodged on its behalf, GPI is described as an active environmental group
which organises, encourages and promotes campaigns, protests and demonstrations
and other activities internationally with an environmental objective. It is
alleged in the petition, and this too is admitted in the answers, that it
frequently engages in direct action through the medium of environmental
activists, though its activities are not limited to that.
[9] Evidence
concerning the structure of the Greenpeace network and the relationship between
various Greenpeace organisations was given by Jasper Teulings, a Dutch
lawyer who is General Counsel and an Advocaat in the Legal Unit of GPI. He
explained that Greenpeace was a global campaign organisation with the aim of
promoting nature conservation. It was a Greenpeace tradition "to bear witness
to societal atrocities and to campaign against these atrocities through
non-violent means." The work was done without financial contributions from
corporations or government grants. From small beginnings, the organisation had
grown enormously, largely due to donations from individual supporters. It now
had 28 national or regional organisations ("NROs") in 42 countries. GPI
itself was a Dutch foundation set up for the purpose of international
coordination.
[10] It is a
matter of admission in one of the Joint Minutes of Admissions that:
"... each NRO is a separate legal entity subject to the national laws of its own country and having its own Board. Subject to the rules on governance that have been agreed between and apply inter se the third respondent and the other members of the Greenpeace network, each NRO operates on a daily basis to a large extent independently of one another and of [GPI]. Each NRO contributes to financing [GPI]. Amongst other things, [GPI] plays a facilitating role to support some less-developed NROs in certain respects, such as IT and fundraising."
Mr Teulings explained that the NROs are the most important players amongst the Greenpeace entities because they develop and carry out campaigns. As well as operating to a large extent independently and individually contributing to financing GPI, the NROs have a say in the strategic direction of GPI, "not the other way round".
[11] Mr Teulings
went on to explain that GPI manages the Greenpeace trademark and the three
vessels used in Greenpeace campaigns. It had licensed the use of the name
"Greenpeace" and its logo to NROs such as Greenpeace UK. Its facilitating role
in areas such as IT and fundraising is crucially important for new offices,
such as those in developing countries. GPI maintains direct contact with
Greenpeace supporters in countries only where there is no national Greenpeace organisation,
and in such places, but only in such places, may itself carry out campaigns.
However GPI does not have control of the NROs either legally or in practical
terms. It is not the headquarters, merely a coordinating body. With input
from the NROs, GPI determines and coordinates "top-line global issues,
strategies and campaigns". For certain key "global issue areas", such as
climate and energy, nuclear energy, oceans, sustainable agriculture and toxics
and forests, GPI will help develop the global long-term strategy and
campaigns. An example of this is the "Save the Arctic" campaign, which is a
key component of the global long term strategy for the climate and energy and
oceans issue areas. However, GPI does not get involved in the NRO campaign strategies
and tactics which may contribute to and support those global strategies and
campaigns. If an NRO decides to participate in a global campaign, then it will
develop and implement a national campaign strategy. It is up to the NRO to
determine the best way to achieve its goals, to bring public attention to the
issue and to influence national actors, whether individuals, governments or
corporations, to act in an environmentally sound way. While there might be
discussions between GPI and an NRO about particular issues, these will not take
the form of instructions. Each NRO will choose its own tactics, such as
non-violent protest. GPI does not get involved in the design and execution of
those actions, unless, following an NRO's request, GPI staff members actively
participate or a Greenpeace asset, such as a ship, is used. In such cases GPI
would carry out a risk assessment; but, since GPI did not get involved in the
action taken on 18 July 2011, no such assessment was carried out in this case.
GPI does not generally finance global campaign work, though it may provide some
support to NROs that are not yet financially independent. Greenpeace UK does
not need GPI's assistance. It has a highly functional office with sufficient
budget and capacity to act on its own; and is a leader in developing
sophisticated national strategies and campaigns to bolster the global
campaigns.
[12] Mr Teulings
was at pains to point out that Greenpeace "never uses its structure to avoid
responsibility and accountability for its peaceful actions." Indeed,
"transparency, accountability, and taking responsibility for one's own actions
are core values of Greenpeace's non-violent direct action tradition." Where
GPI does participate in conjunction with an NRO, its role will always be
acknowledged. It fully acknowledged its responsibility for the protests that
took place in waters off Greenland in May and June 2011 against the
petitioner's drilling operations, but it was not involved in the Greenpeace UK
protest at the petitioner's premises on 18 July 2011.
[13] It was
pointed out to Mr Teulings in cross-examination, under reference to Article 2
of the GPI Articles of Association, that amongst its means of achieving its
object of promoting nature conservation it includes "coordinating its national
organisations in the execution of their objectives...". In Article 3, headed
"Means", it is stated that to attain its objectives GPI "shall co-ordinate
campaigns". The "Governance structure" of GPI is described in an item on the
GPI website. It describes the International Board, i.e. the Board of Directors
of GPI, as, amongst other things, being responsible for monitoring the
operations and activities of the wider organisation and approving the start of
new campaigns. The Annual Report for 2010 features on its front cover a
photograph of activities forming part of the "Go Beyond Oil" campaign. As I
understood his evidence, Mr Teulings sought to suggest that this was a
Greenpeace UK campaign, GPI's role only being to operate the ships chartered in
for that purpose. I had some difficulty with that part of his evidence,
particularly in light of the admission by GPI in their Answers to the petition
that GPI itself was directly involved in the incidents described by Mr Keil and
set out below, all of which formed part of that "Go Beyond Oil" campaign. Mr
Teulings was pressed on this point in cross-examination. He appeared to
suggest that the apparent inconsistency was simply down to a misuse of language
and he maintained that there was no major issue about this. That did not give
me much assistance. While it is clear that a number of the blogs and articles
about the "Go Beyond Oil" campaign appear on the Greenpeace UK website, that
does not appear to me to exclude the direct involvement of GPI in the campaign.
The "Go Beyond Oil" campaign and related activities
[14] It is
admitted by GPI in Answer 5 to the petition that it (i.e. GPI) is, or was at
the material time, engaged in a campaign known as "Go Beyond Oil". The aim of
the campaign is to pressure the oil industry to move beyond oil. Under
reference to a number of averments in the petition, Mr Keil gave evidence as to
certain steps taken by Greenpeace as part of its campaign. The purpose of this
evidence, from the point of view of the petitioner, was to show that the
invasion of its offices in July 2011 was part of the campaign "Go Beyond Oil"
waged by GPI; and thereby to show that GPI was involved to a greater or lesser
extent in that invasion.
[15] Mr Keil
referred to an incident on 21 September 2010 concerning drilling operations
being performed by Capricorn Greenland Exploration 1 Ltd ("Capricorn"), a
subsidiary of the petitioner, off the coast of Greenland, involving the use of
a semi-submersible drilling unit, the STENA DON. The mv ESPERANZA, which was
under charter to GPI, approached the STENA DON, thereby breaching a 500 metre
exclusion zone imposed under the law of Greenland. Activists left the mv ESPERANZA,
boarded the STENA DON, and suspended themselves in tents from the STENA DON.
They remained suspended for over 40 hours, while being supplied from mv
ESPERANZA. Their activities came to an end only when adverse weather caused
them to be rescued. As a result drilling was stopped for approximately 2
days. Mr Keil was not cross-examined on his account of this incident and I
accept his evidence about it.
[16] On about 22
April 2011 environmental activists associated with GPI climbed aboard the
semi-submersible drilling unit LEIV ERIKSSON, which was under charter to
Capricorn for its 2011 drilling campaign off Greenland, while it was leaving
Istanbul. They climbed the derrick and unfurled a banner that read "Stop
Arctic destruction" and "Go Beyond Oil, Choose Clean Energy". Some activists
left the drilling unit as it crossed the Dardanelles Strait, but others
remained on board until a heavy gale forced them to give up. This incident -
including the use of the banner "Go Beyond Oil ..." - is admitted by GPI in its
Answers. It emphasises that it took responsibility for these actions. Under
reference to the petition, Mr Keil also says that the stated objective of the
activists was to impede the progress of the drilling unit and that they had
sufficient supplies to last for days. This is formally denied by GPI.
Notwithstanding that denial, Mr Keil was not cross examined on this issue and I
accept his evidence on it.
[17] On about 29
May 2011 activists associated with GPI left the mv ESPERANZA, which was still
on charter to GPI, boarded the LEIV ERIKSSON and connected a survival capsule
or "pod" to it. They were removed by the Danish navy on about 2 June
2011. Two days later, on about 4 June 2011, 18 activists associated with GPI
left the mv ESPERANZA and boarded the LEIV ERIKSSON. They were again removed
by the Danish navy and arrested. The first part of this narrative, up to and
including the events of 2 June 2011, is admitted by GPI. Again it says that it
took responsibility for those actions. The account of the events thereafter is
formally denied, but I accept Mr Keil's evidence on it - the only cross
examination on this passage of his evidence was to the effect that there was no
proper basis for saying, as was said in the petition, that the first and second
respondents (Greenpeace UK) were also involved.
[18] On 9 June
2011 Capricorn obtained an injunction from the Dutch court against GPI in
respect of the events pertaining to the LEIV ERIKSSON. GPI admits that it
breached that injunction in that on the 17 June 2011 two Greenpeace activists,
including one of GPI's executive directors, left the mv ESPERANZA and boarded
the LEIV ERIKSSON, where they handed over a petition for Cairn Energy
containing 50,000 signatories. Its stated aim was (a) a moratorium on Arctic
drilling and (b) to find the petitioner's Oil Spill Response Plan. As was made
clear in items on the websites of both Greenpeace UK and GPI, that action was
regarded as being action against Cairn Energy, even though the vessel against
which the action was taken was chartered by Capricorn.
[19] There was a
further protest in Edinburgh on 26 May 2011 when Greenpeace activists left a
mechanical polar bear beside the entrance to the petitioner's office in Lothian
Road. Two of those activists climbed on ladders at the entrance, and the sign
for Cairn Energy was vandalised. There is a dispute as to whether this action
was carried out by GPI, as the petitioner contends, or by Greenpeace UK, as GPI
say. I do not need to resolve that dispute.
The petitioner's case in outline
[20] The
petitioner's case, articulated by Mr Keil in his evidence, was that all the
protests which he described were part of a campaign by Greenpeace, led by GPI,
to get the petitioner's Oil Spill Response Plan and encourage a moratorium on
drilling in the Arctic. The activists aboard the LEIV ERIKSSON demanded the
Oil Spill Response Plan and the activists who invaded the petitioner's premises
on 18 July 2011 also demanded that plan. Given that GPI accepted
responsibility in respect of the placing of activists aboard the LEIV ERIKSSON,
it seemed clear that it was also GPI which, albeit with others, was involved in
the attempt to obtain a copy of the Oil Spill Response Plan from the
petitioner's premises in Lothian Road on 18 July 2011.
[21] Mr Keil
gave evidence that he monitored the Greenpeace UK and GPI websites, as well as
other Greenpeace websites. Although he recognised that posts might often go
back and forth between websites, and it was not always clear where any
particular post had originated, he observed that if there was any news, blogs,
photographs or other material posted on the Greenpeace UK website, it was
usually also on the GPI website. Sometimes there was a direct hyperlink from
the one to the other. The protest on 18 July 2011 which led to the invasion of
the petitioner's premises was widely publicised on the websites both of
Greenpeace UK and of GPI. There was material on the Greenpeace websites
showing that the invasion of the petitioner's offices was part of the attempt
to obtain the Oil Spill Response Plan, which had been at the centre of the
campaign of direct action over the summer. Some of that material was on the
Greenpeace UK website. An item dated 15 August 2011 quoted the "Greenpeace oil
campaigner Ben Ayliffe" talking about that the summer campaign. Ben Ayliffe
had earlier blogged on 28 May 2011 on the GPI website about the attempt to
obtain a copy of the Oil Spill Plan. He is described in articles on the GPI
website as "a Polar Campaigner for Greenpeace International", though it should
be noted that he is also described in other articles as "Senior Nuclear
Campaigner Greenpeace UK". An item dated 15 August 2011 on the GPI website
referred to the "oil spill response plan that Cairn has been refusing to
publish", describing it as:
"The one we went to the Arctic and to Cairn's Edinburgh HQ to look for ... The one they were so worried we'd found, they slapped a legal interdict on us to prevent us from publishing it..."
This was evidence that GPI was itself claiming credit for having gone to the petitioner's Edinburgh offices to look for the Oil Spill Response Plan, and had been interdicted from publishing it.
Submissions and discussion
[22] On behalf
of the petitioner, the Dean of Faculty submitted that the central question was
a question of fact, namely whether GPI was involved in the operations which
included the invasion of the petitioner's headquarters in Lothian Road,
Edinburgh on 18 July 2011. The petitioner's case was that both GPI and
Greenpeace UK were involved in a campaign which had as one of its principal objectives
to recover by any means, legal or illegal, the Oil Spill Release Plan, whether
that be by boarding a Cairn Energy or Capricorn vessel in the Arctic or by
invading the petitioner's offices in Edinburgh. While it was not always
possible to say which people were involved and of which organisation they were
members, the fact was that the whole "Go Beyond Oil" campaign was a campaign in
which GPI was involved. Even if Greenpeace UK initiated that campaign, it was
a campaign which GPI adopted as its own and/or in which GPI was directly
involved. It had as its aim, or one of its aims, the recovery of the Oil Spill
Release Plan.
[23] I am not
persuaded that GPI itself, as opposed to other emanations of Greenpeace, was
directly involved either in planning the invasion of the petitioner's premises
on 18 July 2011 or in carrying out that invasion. There was no direct evidence
that it was involved, nor was there any other evidence from which their direct
involvement in the planning or carrying out of that invasion could be
inferred. The fact that on its website it referred to the Oil Spill Release
Plan as "the one we went to the Arctic and to Cairn's Edinburgh HQ to look for
..." does not, in my opinion, take the petitioner very far. It is not unusual,
even where there are separate corporate structures and different lines of
instruction and communication, for an organisation to use "we" as a way of
talking about the group or network as a whole. This is certainly my impression
of the way Greenpeace talked on their various websites. There was no evidence
of particular individuals being involved who were clearly acting as employees
or agents of GPI. People such as Mr Ayliffe often acted, so it seems to me, on
behalf of different Greenpeace entities. Therefore the presence of someone
such as Mr Ayliffe does not signify that GPI was involved as opposed to
Greenpeace UK. Nor does the fact that GPI may have given advance publicity to
the proposed action, or later rejoiced in what it regarded as its success, mean
that it can be regarded as having taken part in it. I do not accept that any
of that is evidence that GPI as a legal entity was itself directly involved in
the action.
[24] In support
of what was in essence an alternative case, the Dean of Faculty submitted that
GPI was nevertheless liable on the basis that it procured the invasion of those
premises by others and/or that it was acting in concert with Greenpeace UK, the
invasion of the premises being part of a common design shared by them. GPI and
Greenpeace UK were involved in a campaign with that common purpose and the
invasion and ransacking of the petitioner's offices was part of that campaign.
[25] I was
referred to the judgment of Mustill LJ in Unilever plc v Gillette
(UK) Ltd [1989] RPC 583 at 607-609. At p.608, having referred to a number
of passages in the authorities, including the speech of Lord Templeman in
CBS Songs v Amstrad [1988] AC 1018, Mustill LJ said this:
"I have set out in these cases in some detail in deference to the care with which they were analysed during the argument on this appeal. In truth, however, I believe that they do little more than illustrate how in various factual situations the courts have applied principles which are no longer in doubt, save perhaps as regards the relationship between indirect infringements by procuring and by participation in a common design. There may still be a question whether these are distinct ways of infringing, or different aspects of a single way. I prefer the former view, although of course a procurement may lead to a common design, and hence qualify under both heads. We need not however explore this question... As to the authorities on this subject, if I am right in the view just expressed that they are really cases on the facts, I suggest that little is to be gained by matching the circumstances of each case against each of the allegations in the draft amended statement of claim. For my part I prefer to take the relevant part of the amendment as a whole, and to ask whether, if the allegations therein are proved to be true (and there seems no dispute that they will be), and if they are set in the context of the relationship between the companies in the Gillette Group, when that has emerged at the trial, a judge directing himself correctly could reasonably come to the conclusion that - (a) there was a common design between Boston and GUK to do acts which, if the patent is upheld, amounted to infringements, and (b) Boston has acted in furtherance of that design. 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 formed part of a statute. They all convey the same idea. This 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 a common design to infringe. It is enough of the parties combine to secure the doing of acts which in the event proved to be infringements."
Those remarks have been quoted with approval in a number of subsequent cases. I was referred in this context to my own decision in Naxos Rights International Ltd v Project Management (Borders) Ltd [2012] CSOH 158 and the cases cited therein. As was made clear by Sir William Blackburne in British Sky Broadcasting Group plc v Digital Satellite Warranty Cover Limited [2012] EWHC 2642 (Ch) at para.38, those principles are not confined to infringement of copyright. Nor are they confined to the field of intellectual property disputes: see per Hobhouse LJ in Credit Lyonnais v ECGD [1998] 1 Lloyd's Rep 19 at p.44. An early illustration of the principles is to be found in the well-known case of The KOURSK [1924] P 140 (per Scrutton LJ at p.156). In Fish & Fish Ltd v Sea Shepherd UK [2012] EWHC 1717 (Admlty), Hamblen J applied those principles to a dispute concerning allegations of interference by the defendants with the claimant's fish farm operations; and see also Monsanto v Tilly [2000] Env LR 313, a case involving the deliberate uprooting of GM crops.
[26] There are,
in my opinion, four points that might usefully be taken from the cases so far
as relevant to the present dispute. First, whether or not procuring and
participation in a common design are distinct ways of committing a tort, their
juxtaposition tends to show that the basis of liability is, to use a more neutral
word, encouragement by the one of action by the other. This encouragement may
take the form of direct procurement or incitement. Or it may be that
participation in a common design can be taken as tacit encouragement to
individuals to take the particular action of which complaint is later made. In
Credit Lyonnais v ECGD, Hobhouse LJ treated liability under this
heading is based on agency: see Fish & Fish at para.23. Whether or
not this is the correct analysis, the agency approach tends to support the notion
that secondary liability is based on the fact that, whether by procurement or
by participation in a common design, the secondary party, i.e. the party sought
to be made liable on this basis, has encouraged the primary party, i.e. the
party directly involved in the wrongful conduct, to take the action of which
complaint is made. Secondly, as Mustill LJ emphasised in Unilever, it
is important not to get too tied down to particular phrases. The idea conveyed
by the expressions "common design", "concerted action" and the like is that the
secondary party has agreed, whether expressly or tacitly, with a plan which
includes the particular course of action to be undertaken by the primary
party. Thirdly, in the common design there need not be a common intent to
infringe (in the case of copyright or patent infringements) or otherwise act
unlawfully (tortiously or delictually). Intention to act unlawfully is
irrelevant; it is sufficient that the particular course of action upon which
the parties agree in the event proves to be unlawful. However, and this is the
fourth point, this does not make the secondary party liable for every act
committed by the primary party in the course of carrying out that common
design. The unlawful act, i.e. the act which turns out to be unlawful, must
itself, whether this is spelled out in terms or emerges as a matter of
inference from the circumstances, be part of the common design before the
secondary party can be made liable for its commission. This, I think, is made
clear in the judgment of Hamblen J in Fish & Fish at paras.20-25 and
in the cases which he cites. It is consistent with the agency analysis
favoured by Hobhouse LJ in Credit Lyonnais v ECGD. As Hobhouse
LJ points out, there is no tortious liability for aiding and abetting or
facilitating the commission of a tort, even knowingly. As a matter of
principle, a person should not be held liable in delict for the act of another
unless he has by procurement, or by participation in a common design,
encouraged that act. Only in those circumstances can it be said that he has
become so involved in the commission of the wrong as to make the wrongful act
his own. This is the concept underlying the imposition of secondary liability
in tort or delict, as explained by Peter Gibson LJ in Sabaf v Meneghetti
[2003] RPC 14 at para. [59], and approved by the Court of Appeal in
Generics v Lundbeck [2006] EWCA Civ 1261 at para. [24].
[27] Considering
the facts in this light, while I accept that GPI was a primary actor in the
campaign "Go Beyond Oil", whoever may have originated that campaign, and that
GPI had as one of its principal purposes behind that campaign the recovery of
the petitioner's Oil Spill Response Plan, it does not follow that it is
responsible in either a primary or secondary capacity for everything done
pursuant to that campaign. I accept the evidence of Mr Teulings that GPI is a
separate legal entity from the various Greenpeace NROs and has no power of
direction over them. Of course it may encourage them to take specific actions
in support of a global campaign organised by GPI, or rejoice in the fact that
they do. But Mr Teulings' evidence was that GPI would not normally do this
except in support of an organisation that had not yet found its feet.
Greenpeace UK according to his evidence, and I have no doubt that this is
right, is well-organised and perfectly capable of deciding upon its own course
of action. The evidence given by Mr Keil, which was not challenged and which I
accept, was that GPI had itself engaged in a number of actions against the
petitioner and/or Capricorn, in part with the aim of obtaining a copy of the
Oil Spill Response Plan. Further in some at least of those actions it had
acted unlawfully. But this does not mean that it is to be held responsible
whenever an NRO takes action in support of one of its global campaigns,
particularly when that NRO is as well-organised as Greenpeace UK. Before GPI
could be held liable on the basis of either procurement or involvement in a
common design, it would have to be shown that it procured Greenpeace UK to
carry out this action, or that the common design of which it was a part, here
the "Go Beyond Oil" campaign, was a campaign which was so likely to involve
action of this type by NROs that GPI could be taken tacitly to have approved
and encouraged such action. The evidence does not satisfy me on the balance of
probabilities that the campaign necessarily contemplated that NROs such as
Greenpeace UK would take independent and unlawful action of the sort which occurred
on 18 July 2011.
[28] In those
circumstances the petitioner's claim against GPI fails.
[29] It is not
therefore necessary for me to consider the detailed arguments on other matters
advanced by Mr Aidan O'Neill QC under reference to his helpful Note of
Argument. Those arguments were far-reaching and should be dealt with when they
are central to the decision to be taken. I summarise the main argument briefly
- and no doubt inadequately - in the following way. Mr O'Neill contended that
GPI had fundamental constitutional rights at common law, and separately under
Articles 10 and 11 of the ECHR and Articles 11 and 12 of the EU Charter of
Fundamental Rights, to freedom of expression and information and to freedom of
assembly and association. Those fundamental rights included and encompassed
the right to assemble and to engage in peaceful protest even where that might
have as one of its foreseeable effects the impeding or interfering with another
party's otherwise lawful business operations. He relied on a large number of
cases, including Appleby v United Kingdom (2003] 30 7EHRR 38 and Steel
& others v United Kingdom (1999) 28 EHRR 603. The full list of
authorities cited can be found in the Note of Argument. Mr O'Neill accepted
that such rights were not unqualified and might have to be balanced against the
petitioner's right lawfully to pursue legitimate business interests. He
suggested, however, that an application of a proportionality test to the
present circumstances would mean that GPI had a substantive defence even if it
were found that they were relevantly involved in the 18 July 2011 invasion of
the petitioner's Edinburgh office. That was because (i) the failure of the
petitioner to disclose their Oil Spill Response Plan for the recovery of which
the direct action was aimed was arguably illegal under domestic and/or
international law; (ii) there was no legal reasonable alternative way of
obtaining that plan; (iii) the action could reasonably be expected to be
effective in highlighting the illegal nature of the petitioner's failure to
disclose the plan, and thus encourage their publication of it; and (iv) the
direct action in invading the petitioner's offices on that day "was marked by a
'fidelity to legal values' within our democratic polity in that they were
proportionate, involved no possibility of harm to individuals and no attempt
was made to avoid detection in the doing of the act."
[30] As I have
said, I do not propose to consider these arguments in any detail. Should the
matter go further they will all be available to GPI. All I would say at this
stage is that even assuming that Mr O'Neill's submission is correct in law, as
to which I express no opinion, I am not persuaded that the grant of interdict
in the terms sought would interfere to any significant degree with GPI's
legitimate rights of free expression and protest. There is, so it seems to me,
no real basis for saying that their rights would be rendered less valuable,
because their protest would be in some way diminished or emasculated, were they
to be restricted to protest in a public area and not in the petitioner's
premises; nor is there any real basis for saying that they should be allowed,
in the name of free speech and the right to protest, to obtain or obtain the
benefit of documents taken from the petitioner's offices. Certainly there was
no evidence led at the proof to suggest that the grant of interdict would
prejudice any such rights. It is true that the terms of the interdict granted
ex parte prevent GPI from disrupting or attempting to disrupt, prevent,
impede or interfere with the petitioner's lawful business operations, which
might on one reading be taken to prevent GPI demonstrating outside the
petitioner's offices in any way which obstructed access. However, had I found
in favour of the petitioners on the facts and been minded to grant interdict
against GPI, I would have invited parties to discuss the precise terms of an
interdict which would avoid this problem. I would not have regarded the
problem as insuperable.
Disposal
[31] In the
circumstances, for the reasons given above, I find in favour of GPI and refuse
the prayer of the petition. I shall reserve all questions of expenses.