England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR JUSTICE NORRIS)

		Royal Courts of Justice Strand London, WC2A 2LL
		19th May 2016

1. LORD JUSTICE McCOMBE: This is a renewed application for permission to appeal from the judgment and order of Norris J of 8th July 2015, whereby the judge declared that a Henry Moore sculpture called "Draped Seated Woman" belongs to the respondent local authority, the London Borough of Tower Hamlets. The declaration was made in proceedings initiated by the respondent on 25th July 2014 to determine the ownership of the sculpture.
2. Tower Hamlets claimed that, in the events which had happened, it was the true owner of it. That claim was contested by the London Borough of Bromley as successor to the London Residuary Body.
3. It is not necessary to set out in any great detail the full facts of the case, which appear in the judgment of Norris J [2015] EWCA 2217 (Chancery). In short, the history revolves around the statutory transfers or functions of various local authorities for a number of years.
4. In short, the sculpture was acquired by the London County Council, by purchase from the artist himself, in 1962. As is well known, the London County Council was succeeded -- to use a neutral word, not a legal one -- by the Greater London Council, and that latter body ceased to exist on 1st April 1986. Residuary functions, rights and obligations of the Greater London Council passed initially to the London Residuary Body. Undistributed assets of that body in turn passed to the London Borough of Bromley under a 1997 statutory instrument.
5. The sculpture, however, as a matter of fact, from the time of its acquisition, was sited for a long period on a housing estate in Stepney within the area of what became the London Borough of Tower Hamlets. Between April 1987 and November 1987 it was lent by Tower Hamlets to the Yorkshire Sculpture Park, where it sat for a short period, and in February 1992 Tower Hamlets removed it again from Stepney for some restoration works. It came back onto site in November 1992.
6. In 1996, materially, Tower Hamlets decided to demolish the 1960s tower blocks which had been built on the estate and as to which the statue had originally been placed as an artistic attribute. Since that time the blocks were duly demolished and the sculpture was removed -- as Mr Straker puts it, because in the first place it was in the way of what was intended on the site -- on loan again to the Sculpture Park in Yorkshire. No claim was asserted by Bromley at any period at the time about those activities and Tower Hamlets took no steps to obtain the consent of Bromley to the acts that it did.
7. Tower Hamlets alleged that it had, by the various acts that I have sought to summarise and dealt with in more detail by the learned judge, converted the sculpture to its own use and that accordingly, under the Limitation Act 1990, Bromley's right to recover the item was extinguished in the ordinary course of limitation.
8. In a careful review of the law and the facts, a lot of which had to determine the devolution of title to the assets (the formal legal title, that is) by virtue of the numerous statutes and statutory instruments, the judge reached a conclusion about the latter period in paragraphs 49 and 50 of his judgment in these terms:

i. "49. In my judgment, on the facts found, the title of Bromley has been extinguished. Focusing solely upon the events of 1997-2002 [from the time of the demolition of the blocks], the removal of the sculpture from its site, the contractual loan to the Yorkshire Sculpture Park for three years, the undertaking of further restoration of the sculpture (in addition to the new plinth provided in 1992) and the exercise of control over what work was done, the decision to entrust the insurance of the sculpture to others, the decision to leave the sculpture where it was rather than to bring it back to Tower Hamlets (certainly deliberate by 2002) were all assertions of rights of dominion over the sculpture inconsistent with the ownership rights of Bromley."

9. In paragraph 50, towards the end of the paragraph the learned judge said this:

i. "... When Tower Hamlets took the sculpture for restoration (its own purposes) and for contractual loan to the Yorkshire Sculpture Park (the use of a third person) it was not merely moving the sculpture out of harm's way but otherwise permitting the owner to exercise dominion over it; it was acting inconsistently with the general right of dominion of Bromley, inconsistently with Bromley's entitlement to use the sculpture at all times and in all places."

10. The learned judge refused permission to appeal to this court, as did my Lord, Kitchin LJ, on the application on the papers in these terms:

i. "The judge directed himself properly as to the law and concluded, as he was entitled to, that LB Tower Hamlets had, over the period from 1997-2002, carried out a series of acts (summarised by the judge at [49]) which were inconsistent with the ownership rights of Bromley. These acts went far beyond acts which could be regarded as mere removal or safeguarding of the sculpture. LB Tower Hamlets treated the sculpture as its own."

11. There is not a great deal of challenge to the statement of principles that the learned judge applied in reaching the conclusions that he did in paragraph 48 of the judgment. It is not necessary to decide all of them, save that Mr Straker this morning has added perhaps one might say a coda to what the learned judge said at paragraph 48(e) of his judgment in these terms:

i. "If Tower Hamlets manifested an assertion of rights of dominion over the sculpture which was inconsistent with the rights of Bromley then it committed the tort of converting the sculpture to its own use ..."

12. Mr Straker has helpfully referred me to an extract from the judgment of Atkin LJ in a case called Sanderson v Marsden (1922) 10 Lloyd's List Reports 467 at 472 quoted in Clerk and Lindsell in these terms:

i. "An act of conversion differs from mere trespass inasmuch as the former must amount to a deprivation of possession to such an extent as to be inconsistent with the right of the owner and evidence of an intention to deprive him of that right, whereas the latter includes every direct forcible injury or act disturbing the possession of the owner, however slight that may be."

13. Two points are made by Mr Straker, so far as his advocate's statement is concerned, which helpfully summarises them. He firstly says that the issue potentially arising on this appeal affects "the public realm" and, secondly, that it has a good prospect of success. It is submitted by Mr Straker for Bromley both that the judge and Kitchin LJ failed to treat the conversion claim with proper regard to the public interest.
14. Dealing with that second point first, I see nothing in anything being in the public interest in this at all; this is a simple case of whether a chattel was or was not converted and whether title has been barred thereby. Of course, all the circumstances had to be taken into account, namely that these were local authorities acting as such in their various ways, and it may be that the acts of ownership, one or the other, are rather different from those -- to use Mr Straker's example again -- where one owner of a book lends his book to another and it lies for a long time in the sitting room without being particularly expropriated. I take the distinction. However, it seems to me that there is no particular point of compelling reasons why this appeal differs from any other, and the only question that really arises is whether there is a real prospect of success in the appeal which is proposed to be brought against the learned judge's findings. In short, the law of limitation applies to the governors just as much as it does to the governed.
15. It seems to me that I find myself in entire agreement with what Kitchin LJ said on his consideration of the case on the papers. This was a case where the London Borough of Tower Hamlets considered itself for many years to be the owner of this item. It may not have given particular thought to it, but it considered it was the owner, and when it did what it did, from 1997 in particular onwards, it acted as such; it did not take the slightest regard to the potential title of anybody else, it never thought probably that anyone else was involved at all. As is put in the helpful respondent's statement which has been provided pursuant to the practice direction, and I quote from paragraph 6:

i. "The Respondent did not merely move the sculpture out of the way for safekeeping whilst buildings around it were being demolished: it treated itself as having the right to lend the sculpture to a third party at the other end of the country for a 3 year term, and to determine how the sculpture should be dealt with during that term, and what should happen to it at the end of it."

16. One can add the same point in respect of the later loan when the item had to be removed from site for the purposes of construction activities. I also agree with the respondent in paragraph 8, when it says:

i. "The Respondent dealt with the sculpture as its own for the better part of a quarter of a century, taking responsibility for it, whilst the LRB and the Appellant showed no interest in it whatever."

17. It seems to me clear that Tower Hamlets assumed itself to be the owner from the passage in the evidence of Mr Galpin, to which Mr Straker referred me this morning in paragraph 58, where he says:

i. "The Council has been assumed to be, and has acted in accordance with being, the legal owner of the Sculpture since the events surrounding the transfer of the Stifford Estate and the obligation of GLC in 1985 and 1986."

18. In my judgment, Tower Hamlets simply regarded itself as the owner, and as the owner treated itself as such and removed this item from the London area for its own purposes and its own use, inconsistently with the title of Bromley.
19. In my judgment, this proposed appeal has no prospects of success and I refuse the renewed application.