Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 50
P973/11	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: ________________

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.