Inshore Services (International) Ltd v NFFO Services Ltd & Anor [2001] EWCA Civ 1722

Tuesday November 20th, 2001
Neutral Citation Number: [2001] EWCA Civ 1722
Case No: A2/2000/3315 QBENF

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(Mr Michel Kallipetis QC sitting as a deputy high court judge)

Royal Courts of Justice
Strand,
London, WC2A 2LL
Tuesday 20th November 2001

B e f o r e :

LORD JUSTICE BROOKE
LORD JUSTICE LATHAM
and
MR JUSTICE BURTON

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INSHORE SERVICES (INTERNATIONAL) LTD
Claimants/
Respondents
and –


(1) NFFO SERVICES LTD

(2) MARK STANLEY HAMER

First Defendants/
Appellants
Second Defendant

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Ian Mayes QC & Michael Wood (instructed by Hill Dickinson for the Appellants)
Timothy Brenton QC & Robert Thomas (instructed by Watson Farley & Williams for the Respondents)

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HTML VERSION OF JUDGMENT
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    LORD JUSTICE BROOKE : This is the judgment of the court.

  1. This is an appeal by the first defendants NFFO Services Ltd (“NFFO Services”) against an order of Mr Michel Kallipetis QC, sitting as a deputy high court judge of the Queen’s Bench Division, on 10th October 2000 whereby he ordered them to pay the claimants Inshore Services (International) Ltd (“Inshore”) damages to be assessed.
  2. By the Statement of Claim endorsed on the original writ, which was issued on 1st June 1998, Inshore claimed damages from both defendants for wrongfully inducing and procuring Horizon Exploration Ltd (“Horizon”) to terminate and/or repudiate a contract which that company had made with Inshore for the provision of the services of their vessel MARY ANN I and a fishery liaison officer to support Horizon’s vessel PACIFIC OCEAN for the duration of a seismic survey which Horizon had been engaged to carry out in the Morecambe Bay area in early 1997. The judge dismissed these claims and acquitted the second defendant Mr Hamer of any wrongful action of any kind. Inshore does not appeal against any of these findings. However, they succeeded as against NFFO Services on a plea added by amendment to their Statement of Claim on 16th November 1998, whereby they alleged that the actions of that company on which they relied constituted interference with their business by unlawful means, such actions being made with intention to injure, and in fact injuring them.
  3. In the event, the only matter on which Inshore successfully relied arose from the contents of a letter written by Mr Bevan of NFFO Services to Mr Robinson of Horizon on 12th January 1997 which led to Horizon depriving Inshore of the work they were expecting to perform in Morecambe Bay and transferring it to a member of the local Fleetwood fishing fleet. It was common ground on the appeal that a tort is committed where A interferes with the trade or business of B with the intention of harming him by the use of unlawful means (Associated British Ports v TGWU [1989] 1 WLR 939, 965B). It was also not in the event contested on this appeal that in this letter Mr Bevan used threats with the intention of harming Inshore’s business. The real issue between the parties was whether Mr Bevan’s letter contained a threat to use unlawful means to achieve that purpose. Although this is ordinarily described as the tort of intimidation, it was common ground between the parties at the trial that this fell within the tort of unlawful interference.
  4. As will already be apparent, three companies were engaged in this dispute, Horizon, Inshore and NFFO Services. Horizon carries on a business of acquiring marine seismic data for the geophysical exploration industry. Their work involves the production of a geophysical analysis of the subsurface beneath the sea which enables oil companies to plan their development of oil deposits. Their seismic survey vessels, in this case the PACIFIC HORIZON, tow a number of cables behind them, submerged to a depth of about 8 metres. These cables can be as much as three miles long. The survey vessels are required to conduct their survey along a line marked out on a chart, and they are often not allowed to deviate more than a few metres on either side of the line.
  5. A seismic survey vessel will be accompanied by one or more support vessels, and in inshore waters local fishing vessels are often used for this purpose. These vessels act as chase boats, operating in collaboration with a fisheries liaison officer (“FLO”). who will be stationed on board the survey vessel. Their function is to guard the survey cables and to ensure the survey vessel can get on with its appointed task without being distracted by the presence of other vessels on the sea at the same time. The job of the FLO is to ensure that the survey vessel does not interfere with fishing operations, so far as practicable, and vice versa.
  6. At the time Mr Bevan wrote his letter Mr Wing, who was Horizon’s operations manager, was away on holiday, and his place was taken, so far as these matters are concerned, by Horizon’s operations supervisor, Mr Robinson. In the past Horizon had on occasions used NFFO Services as a conduit for the provision of chase boats and FLOs from the local Fleetwood fishing fleet for seismic surveys in the Irish Sea. On the occasion with which this action is concerned, they wished to use Inshore’s services instead.
  7. Inshore are the owners and operators of the MARY ANN I, which they describe as a fishery research and seismic support vessel. It is a converted trawler. Horizon had a preference for using Inshore because they were familiar with Horizon’s operations, and they were also able to offer other support services for the transportation of equipment and personnel, in a way that was not open to a local fishing vessel. Mr Wing said that Inshore’s craft were equipped to a high specification, maintained in good condition, and possessed trained crews, but it was not suggested that a local fishing vessel could not fulfil the chase boat function provided that it passed the appropriate audit test.
  8. At the end of 1996 the PACIFIC HORIZON was engaged in survey work in the North Sea east of Aberdeen, using MARY ANN I as its chase boat. In early January 1997 Horizon signed a contract with the Atlantic Richfield Corporation (“ARCO”) for a seismic survey in the Irish Sea, and when the weather broke in the North Sea on about 11th January, Horizon instructed their vessel to proceed to the Irish Sea. They also wished the Inshore vessel to act as their chase boat there. The MARY ANN I therefore left the North Sea and arrived in Liverpool on 13th January, expecting to start work in Morecambe Bay in the near future.
  9. Although Inshore asserted that they had concluded a contract with Horizon for the Morecambe Bay work, the judge found that no such contract had in fact been concluded. The reason why Horizon decided that they did not wish to use Inshore’s services after all arose out of Mr Bevan’s intervention.
  10. Mr Bevan was the on-shore co-ordinator of NFFO Services, which he described as the commercial arm of the National Federation of Fishermen’s Organisations (“NFFO”). NFFO was formed in 1977 to represent the interests of a wide range of fishing vessel operators and their crew. NFFO Services was incorporated seven years later to provide a link between fishing interests and offshore exploration and construction companies. At that time the search for oil and gas in British waters was increasing rapidly, and because of the potential disruption to fishing activities, the two industries had to develop satisfactory working relationships, based on communication and co-operation.
  11. In this context NFFO Services played a useful role in liaising with the exploration and construction companies. It was able by this means to obtain information about the activities these companies planned in particular areas of the sea, and to establish whether local fishermen and their vessels would be able to assist. Any chartering of fishing vessels would be arranged through NFFO Services, who would charge a commission of 10% for their services. Thus on the contract which eventually transpired in this case, Horizon paid NFFO Services at the rate of £1,100 per chase boat per day, of which that company retained £100, paying the balance to the boat’s skipper.
  12. Mr Bevan first heard about the possibility of this work in the Irish Sea in August 1996, and he sent Horizon a quotation for the services of a FLO and a chase boat on 30th August. Horizon did not respond to that offer. On 3rd January 1997 Mr Wing told Mr Bevan that they would be retaining for this work the chase boat and FLO currently under contract on the North Sea. When Mr Bevan told the local fishermen of this news, strong passions were aroused, and he was invited to attend a meeting at Fleetwood on 11th January, where he described the atmosphere as “very charged”. Mr Watson, who was a local skipper with 41 years experience as a fisherman, said that the meeting was very well attended and that feelings were running high: the Fleetwood fishermen were “quite amazed” to hear that Horizon intended to use an “outsider”. Although the meeting was called under the auspices of the Fleetwood Fishermen’s Association (“FFA”) it was not restricted to members of that body, which Mr Watson, for one, has never joined.
  13. It was in these circumstances that Mr Bevan wrote to Horizon the letter dated 12th January 1997 which is at the heart of this litigation. It is only necessary to set out extracts from this letter in order to understand its main thrust. After saying that he had attended the FFA’s meeting the previous day in an attempt to identify fully its concerns, Mr Bevan continued:

    “Throughout the meeting which was at times quite heated, there was intense opposition to this survey taking place without full participation of local liaison services including the provision of a Chase Boat. They instructed me to make Horizon Exploration fully aware of the depth of their feelings.

    They recognise the disruption this survey will have on normal fishing operations if they attempt to continue working on these traditional local fishing grounds during the survey, and such disruption adds to existing restrictions within the confines of the Irish Sea. They are demanding involvement in this survey or a meeting with yourselves to discuss alternative arrangements to secure their co-operation.

    They suggested to me that the highest volume of traffic within the survey area will be local fishing boats. Merchant shipping is almost limited to the two per day Heysham to Belfast ferries, two per day Fleetwood to Larne ferries and a Heysham to Isle of Man ferry. On that basis they totally refuse to accept or co-operate with any Fisheries Liaison and Chase Boat services which are not secured from a local level while they suffer disruption to their fishing operations.

    To secure the co-operation from Fleetwood Fishermen’s Association they are insisting that Horizon Exploration utilises Fleetwood vessels (see attached list of vessels) to take turns as Chase Boat protecting the cable and communicating with any approaching vessels, while carrying out this survey in what must be regarded as a sensitive local inshore area. I feel sure the benefits can be identified.”

  14. Mr Bevan then described similar arrangements the FFA had made with another company, and gave details of the qualifications and experience of the local skippers and their vessels, before ending his letter in these terms:

    “I feel sure that the Fleetwood Fishermen’s Association can, as in the past, provide the degree of safety you require to protect the seismic cable, while at the same time, secure the co-operation of fishermen in the area.

    I would be pleased to pass your comments to the Fleetwood fishermen and hope that this matter can be resolved in a satisfactory manner to the benefit of all concerned.”

  15. This letter had the desired effect, so far as Mr Bevan’s company and the FFA were concerned. Horizon told Inshore that their services were no longer required, and they engaged a local chase boat and a local FLO instead. In this action Inshore claimed as damages their loss of prospective earnings in the Morecambe Bay area between 17th January and 15th March 1997 and other associated expenses, giving credit for the earnings they received from alternative work during that period. Their total net claim for damages amounted to £67,240.50, together with interest.
  16. The trial of the issue which turned out to be critical for the purposes of this appeal was not helped by the fact that little attention had been paid at the pleadings stage to the ingredients of the wrongful action which Inshore asserted. The original plea in the Statement of Claim, of which particulars were sought and provided, was confined to their claim for damages for unlawfully procuring a breach of the contract between their company and Horizon which the judge found not to have been proved (see para 9 above). So far as this plea related to Mr Bevan’s letter of 12th January 1997, it was said that Inshore relied on:

    “a fax of 12th January 1997 in which [NFFO Services], through Mr Bevan, pressurised Horizon to use the services of a vessel or vessels and a liaison officer supplied by or through [NFFO Services] and/or [Mr Hamer] and in which it was further made clear that the seismic survey would be severely disrupted and/or rendered impossible by the actions of local fishermen (and in particular, members of the FFA) should the support vessel and liaison officer not be supplied by or through [NFFO Services] and/or [Mr Hamer].” (Emphasis added.

  17. The amended plea, on which Inshore succeeded at the trial, was in these terms:

    “Further and/or alternatively the aforesaid actions of [NFFO Services] … constituted interference with [Inshore's] business by unlawful means. Such actions being made with intention to injure and, in fact, injuring [Inshore] in the manner set out above.”

  18. No point was taken at the trial to the effect that the words “the manner set out above” could only naturally refer to the interference with the contractual arrangements between Inshore and NFFO which the judge found not to exist. Nor was any point taken to the effect that the pleading was singularly uninformative about the “unlawful means” relied on. Nor was any particular attention paid to the state of mind of NFFO Services/Mr Bevan which Inshore would have to prove in order to succeed on this issue.
  19. To take these points in turn, since the first point was neither raised at the trial nor raised on the appeal, it would not be open to this court to take it now, although it reflects the apparent lack of proper attention to detail which was paid at the pleadings stage. On the second matter, again the lack of attention to detail permitted Mr Thomas, for Inshore, to embark on a roving mission during his cross-examination of the defendants’ witnesses, in reliance on potential breaches of the duty of good seamanship and of the Merchant Shipping (Distress Signals and Collision Regulations) Order 1996 (“the Collision Regulations”) of which no mention was made by Inshore until they served a skeleton argument just before the trial started.
  20. On the third matter, it appears to us that the same lack of attention to detail entitled Inshore to rely on any state of mind on the part of NFFO Services/Mr Bevan which would be sufficient to establish the necessary ingredients of the tort on which they relied. In these circumstances, even if Inshore could not prove that Mr Bevan knew that the non-co-operation he threatened would inevitably entail breaches of the Collision Regulations or of the fishermen’s duties of good seamanship, it would be sufficient if they could show that he made his threat recklessly, indifferent whether this non-co-operation would involve breaches of the law.
  21. This issue arose in Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691. A trade union was troubled that main contractors had made a “labour only” sub-contract for the execution of brickwork on the site of a new power station, and they threatened a strike by their members unless these sub-contracts were terminated and the main contractors employed the bricklayers on the site directly themselves. Lawton J had held that the evidence showed that on the balance of probabilities the union intended to procure the lawful termination of the sub-contract, and that knowledge of its specific terms could not be imputed to it. This court admitted new evidence and overruled the judge on this point. Diplock LJ said at pp 703H-704D:

    “The only issue on this part of the case is one of fact as to the defendants’ intent. At all relevant times they knew of the existence of a ‘labour only’ subcontract for brickwork between the main contractors and the plaintiffs, but until it was disclosed to them on the interlocutory application to the judge in chambers for an injunction, they did not know its precise terms. They say in somewhat equivocal language that they assumed that it would be lawfully terminated by the main contractors on short notice and that such lawful termination was all that they insisted on. But ignorance of the precise terms of the contract is not enough to show absence of intent to procure its breach. The element of intent needed to constitute the tort of unlawful procurement of a breach of contract is, in my view, sufficiently established if it be proved that the defendants intended the party procured to bring the contract to an end by breach of it if there were no way of bringing it to an end lawfully. A defendant who acts with such intent runs the risk that if the contract is broken as a result of the party acting in the manner in which he is procured to act by the defendant, the defendant will be liable in damages to the other party to the contract.

    On the evidence as it now stands I think the inference is irresistible that such was the defendants’ intention. The one thing on which they were determined was that the plaintiffs’ work under their ‘labour only’ subcontract with the main contractors should cease. Whether this involved a breach of contract by the main contractors was a matter if indifference to them. The judge declined to draw this inference. Even on the evidence before him, I myself should have been inclined to draw it; but now there is additional evidence.”

  22. See also Lord Denning MR at pp 700G-701B. These principles are equally applicable to a situation in which defendants threaten to do harm to claimants by unlawful means, even though those unlawful means do not involve inducing the breach of a contract that has already been concluded.
  23. The pleading stage of this action was concluded before the advent of the Civil Procedure Rules on 26th April 1999, and nothing in this judgment must be taken as encouraging a return to the old, often sterile, and invariably expensive practice of requiring voluminous further and better particulars of every allegation in a party’s pleading. Often the necessary information about the case a party has to meet at trial can be provided more informally and less expensively, by exchange of letters or by the service of a witness statement (see McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 per Lord Woolf MR at pp 792F – 793G) But we cannot help thinking that their advisers’ lack of attention to detail at the pre-trial stage of this action may have left the appellants, and particularly Mr Bevan, at a disadvantage at the trial because they may not have given proper thought to the breadth of the case Inshore would be able to deploy against them on this new plea. At all events it is now too late for this court to help them.
  24. After this diversion into the pleadings we return to the facts. In his witness statement, which formed part of his evidence at the trial, Mr Robinson described the effect on his mind of the threat of non-co-operation. Although he attributed such a threat to the second defendant (which the judge rejected) his evidence was equally applicable to Mr Bevan’s threat:

    “So far as I was concerned, this was a serious threat against Horizon Exploration’s operations. Marine seismic surveying is a precise science requiring a high degree of skill and attention. Consequently, it does not take much in terms of outside interference to adversely affect the outcome of the operation which inevitably leads to very high costs being involved. As it is, the natural elements of weather and tides, especially in the Irish Sea where tidal effects are a major factor, make the job difficult enough and deliberate intervention in addition would make it impossible. There are numerous ways in which a third party vessel intent on deliberately obstructing a survey could bring this about. The most obvious is to get in the way of the seismic vessel to prevent her maintaining her line of survey. Often the specification is restricted to only a few metres either side of a line and a deviation beyond this would cause the seismic vessel to abort. Simply not responding on the VHF to the chase boat whilst bearing down on the seismic vessel would halt the operation. This would necessitate a re-run of the line. A lack of information about the position of fishing nets or the placing of nets or trawls or any other gear ahead of the seismic vessel are all ways to bring about the failure of the surveying operation. Even engine noise from another vessel which is too close will affect the survey.”

  25. Mr Bevan did not really address this issue in his witness statement, no doubt because the potential unlawfulness of the threat (other than as a threat intended to induce a breach of contract) had not really surfaced as a separate issue at this pre-trial stage. Mr Watson, for his part, dealt with the matter cursorily in his witness statement:

    “The problems facing fishermen are well known and to take the bread from their mouths at time like this was asking for trouble. Horizon must have realised this at the outset, they are an experienced company, they have used Fleetwood vessels before without any complaint. They must have realised the anger they would stir up if they ignored us.

    Dave Bevan was requested by the meeting to tell Horizon in no uncertain terms the problems they would face if they engaged any other vessel than one from Fleetwood.

    The area to be surveyed is very near to Fleetwood, an area known locally as the ‘prawn pitch’, and regularly fished by our smaller vessels. The survey could easily be disrupted by the whole fleet quite legally shooting their gear and ignoring the chase boat; Horizon knew this anyway.”

  26. The potential unlawfulness of the fishermen’s non-co-operation was not really explored by Mr Wood (who appeared for NFFO Services) when Inshore’s witnesses gave evidence. Indeed, in one passage, when he was cross-examining Horizon’s Mr Beard, he appeared to concede that the non-co-operation might be unlawful:

    “Q. And the non-co-operation of which you talk in those paragraphs [of your witness statement] which was concerning you, of course it might have been unlawful, but it wasn’t necessarily. It wasn’t automatically unlawful was it?

    A. No.”

  27. These issues were not fully explored at the trial until Mr Bevan and Mr Watson were cross-examined, and the evidence of these two witnesses, and the points that were made to them by Mr Thomas (who appeared for Inshore), led to the judge dealing with the matter in the following way in his judgment.
  28. He said that there were four types of action which Mr Watson, and to a limited extent Mr Bevan, considered to be lawful. The first postulated a situation where members of the fishing fleet sailed close to the survey vessel and generated noise which could affect the quality of the seismic data without any breach of the Collision Regulations or the duty of good seamanship. The second envisaged the fishermen putting down static gear which could be a hazard to the “birds” attached to the seismic cables. The judge discounted this possibility after being told by Mr Bevan that he was not aware that there was any static gear in use in Morecambe Bay at that time. The third contemplated situations developing where the survey vessel could be considered as the overtaking vessel for the purposes of the Collision Regulations, and the fourth related to conditions of restricted visibility, where implications were also capable of arising for the survey vessel under those regulations.
  29. The judge commented that, as Mr Beard of Horizon had recognised, a course of conduct whereby the fishing fleet declined voluntary co-operation to the survey vessel would in itself be sufficient to affect the success of the survey operation. The fishermen had no legal obligation to co-operate, and a finding of unlawful behaviour could not be based on spiteful interference alone. The judge therefore turned to consider Inshore’s complaints in so far as they were based on their contention that the Fleetwood fishermen must have been contemplating unlawful conduct when Mr Bevan made the threats contained in his letter. For this purpose he had to consider the Collision Regulations and the duties of good seamanship. It was common ground that the PACIFIC HORIZON fell to be treated as a vessel with restricted ability to manoeuvre (see the Collision Regulations, Rule 3(g)(ii)).
  30. In paragraph 55 of the judgment the judge enumerated nine rules which the fishermen were bound to observe. He then analysed the effect of Mr Watson’s evidence and said that it was quite clear to him that although the fishermen had not thought through what they would actually do, in effect Mr Watson, on his own admission, intended to take action which would clearly be in breach of several of those rules. To maintain station, ignoring radio signals, in order to force the master of the survey vessel to be in doubt as to the safety of his ship would amount to a breach of the duty of good seamanship as well as a breach of the rules. It seemed to the judge that Mr Watson was telling him that the fishermen intended to create such doubt in the mind of the master of the PACIFIC HORIZON that his vessel might be in danger such that he would be compelled to take evasive action and depart from his survey line.
  31. The judge said that he suspected that the fishermen had honed to a fine art methods of intimidating vessels which were considered to be encroaching on their patch. Although he had stopped counsel exploring the matter in any detail, he bore in mind Mr Watson’s reference to the way the fishermen “saw off” an Irish trawler who had inadvertently encroached on what they regarded as their traditional fishing ground. The judge concluded on this part of the case:

    “It is quite clear to me from the evidence of Mr Watson and indeed to a lesser extent Mr Bevan that the Fleetwood fishermen would be planning action which would fall foul of these Regulations. In those circumstances, I am satisfied that what was being threatened was in fact unlawful.”

  32. On the appeal Mr Mayes QC did not challenge the thrust of the judge’s findings so far as they related to much of Mr Watson’s evidence. He argued, however, that it was not open to the judge to tar Mr Bevan and his company with the same brush, and that the evidence did not enable the judge to find that in making his threats Mr Bevan would have had any idea that the fishermen would be contemplating unlawful action when they implemented their policy of non-co-operation.
  33. It is therefore necessary to turn to the transcript of Mr Bevan’s cross-examination to see if there was material there which justified the judge’s findings. Mr Brenton QC relied on the following passages in this context.
  34. On Day 2, Mr Bevan told the judge that in practice the fishing vessels would not move out of the way unless the Collision Regulations obliged them to. He said the fishermen would know the general area of the survey, but it might turn out to be difficult for the survey vessel to communicate with them, so that they might not be aware of its line of travel. Although they were required to listen for other traffic on VHS Channel 16, they could sometimes miss the broadcast issued by the survey vessels when they were communicating with other fishing vessels.
  35. The following day he said that the fishermen did not indicate to him which way their non-co-operation would be revealed, but he had his own ideas on how that might be. They never threatened to interfere deliberately with a survey, but he said that sometimes a survey could not be conducted satisfactorily if they deliberately failed to co-operate. On many occasions a fishing vessel would be going about her business, and a survey vessel, wishing to overtake her, would have to break line and disrupt the survey. He knew that the fishermen would have in mind shooting their nets out and ignoring the chase boat. He thought, however, that they could do this legally without being in breach of the Collision Regulations and their duty of good seamanship.
  36. The transcript shows that he was pressed on this answer. At one point he was told he was talking “pure nonsense” when he suggested that the restrictions placed on a vessel by the gear she was operating could quite easily put her in a position where, so far as possible, she was unable to get out of the way (thereby avoiding a breach of Collision Regulation 18(c)(ii)). When he was reminded that Mr Watson had spoken of “shooting their gear and ignoring the chase boat” he replied that this was Mr Watson’s comments.
  37. He accepted that the overriding obligation on all users of the seas, including fishermen, was to ensure that a close quarter situation and the risk of collision did not arise. He also accepted that if fishermen deliberately failed to listen out on Channel 16 and heed the warnings of the FLO and the chase boat there would be breaches of Collision Regulations 5 and 7(a), and that Regulation 8(a) obliged them to make sure well in advance that they got out of the way in order to avoid a close quarter situation. Many of his answers were qualified by comments that the survey vessels were also obliged to comply with these regulations, and he often said that these problems would not occur if there were good working relationships between the survey vessels and the fishermen. When Mr Watson’s remark about ignoring the chase boat was again put to him, Mr Bevan replied:

    “I think you’ll have to ask Mr Watson that. I can’t comment on what they as individuals would do, but any act of non-co-operation as I see it, would be strictly within the lines of the law.”

  38. Mr Mayes relied on other answers by Mr Bevan to similar effect. For instance, at the start of his evidence he said that if at any stage he had conceived that the actions of the Fleetwood fishermen were unlawful, he would have distanced the federation from them. He said that the federation had quite an influence over the fishing industry, but that at the end of the day the decisions were solely with the individual skippers of each vessel. He had no influence over and above persuasion, and no direct control. It was possible that if he had told the fishermen that what they were proposing was illegal, they were likely to have heeded that warning. Indeed, he was sure they would take it seriously, and he hoped that it would bring them to their senses if his attempts at persuasion had failed, since in the last resort he would withdraw the federation’s support for their actions.
  39. This was the evidence the judge had to consider. He had the great advantage, denied to this court, of watching and hearing Mr Bevan give evidence. We could have wished that he had devoted more space in what was already quite a long judgment to his findings on this issue, but his brief finding was unequivocal: “It is quite clear to me from the evidence of Mr Watson and indeed to a lesser extent Mr Bevan that the Fleetwood fishermen would be planning action which would fall foul of these Regulations”. In my judgment, depending on the impression Mr Bevan made on the judge in the witness-box, there was indeed evidential material which entitled the judge to make this finding.
  40. Ifwe had been in any doubt about the judge’s approach to Mr Bevan’s evidence, those doubts would have been set at rest by a passage in the short judgment which the judge gave when refusing permission to appeal. He said:

    “The basis of the application in Grounds 1 to 4 is that there is no evidence at all that NFFO Services, through Mr Bevan, supported, or endorsed, or incited, or adopted the unlawful conduct. It is right, as my findings made clear, that Mr Bevan refused to be drawn in cross-examination as to what he understood non-co-operation to be. It is equally clear that pursuant to the instructions he was given, he did pass on the threats of [the FFA] not to co-operate. It seems to me that it would be quite absurd, against that background, for me not to have regard to the reality and to make the findings that I did as to what was being threatened. To my mind, in situations such as this, it is not essential for the tort to be made out that each action has to be spelled out and specified by the person who is threatening the tort.”

  41. It is of course correct that the judge never addressed himself specifically to the state of Mr Bevan’s mind when he made the threats contained in his letter, but if he had, it seems to us that at the very least he would have found that Mr Bevan was indifferent as to whether the fishermen’s prospective acts of co-operation would be lawful or unlawful. As Lord Denning MR put it in Emerald Construction, he turned a blind eye.
  42. For these reasons we are satisfied that there was evidence available to the judge which enabled him to make the findings of which Mr Mayes’s clients make complaint. This appeal should therefore be dismissed. For the sake of completeness we would add that at the hearing it appeared to be accepted that NFFO Services were making the threats as principals (who would benefit substantially if the threats succeeded) and not only as agents. In these circumstances it is unnecessary to devote separate attention to the potential liability of an agent, on which Mr Mayes made interesting submissions in his skeleton argument. Order: Appeal dismissed with the costs of which £25,000 to be paid within 14 days and remainder to be subject to detailed assessment. (Order does not form part of the approved judgment)

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