England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		September 2008

MASTER LESLIE:

1. This is an application for summary judgment in a claim in which a declaration is sought. It is therefore not automatically granted, although no serious opposition has been advanced on behalf of the named defendant, nor could it be, because, for procedural default, the defence has been struck out.
2. The claim relates to the ownership of a very beautiful, historic icon which, under Greek law belongs to the Greek state, the Hellenic Republic. It was for centuries in a monastery in Greece but, in 1978, it was stolen from that monastery. I need not go into any detailed history; it is a 13th or 14th Century depiction of what is known in the art world and in the religious world as the Deposition of Christ; it is Christ being taken down from the cross. It transpires that its physical condition was parlous. So parlous indeed that it was in danger of, not to put too fine a point on it, disintegrating. We now know that because, by coincidence, the claimant's expert, who examined it, saw it in the hands of a restorer (after the theft) when he was approached on ethical questions by the restorer. But it has been restored and it is, as I have said, extremely beautiful.
3. Somehow or other it found its way into the possession of the father of the present defendant, Mr Vassilous Valambous (his son being called Yannis). When that precisely occurred is not known to the court, but Mr Valambous died in 2006. It came to the attention of the authorities sometime in 2006 or 2007 and the icon was deposited with the police in June 2007.
4. The defendant's solicitors were involved right from the very start, but there is no evidence before me as to who delivered the icon to them after Mr Valambous's death, if it came to those solicitors after the death. I say that because as part of police enquiries the defendant was asked about the icon, and he said this:

"I have been shown a picture of the item and I can say that it seems familiar. I am not in a position, however, to firmly say whether it is or has ever been in my family's possession."

5. I find that an extraordinary statement. I do not see how somebody who can say that this item is familiar cannot say more than that or is not prepared to say more than that, unless there is another motive for it. As I have said, it is not only beautiful but distinctive and, unless Mr Valambous senior had an extensive collection of icons, (and even if he did this one would surely have stood out), so that the vague assertion that it "seems familiar" seems to me to be a great obfuscation, being as vague as it is.
6. Having read the report of Professor McCormack I am quite satisfied that this icon is the very same icon that was stolen, that it belongs to the claimant State, that the claimant State has been deprived of its possession wrongly for 30 years or thereabouts and the sooner it is returned to the State the better; I have no hesitation whatsoever in saying that I am quite satisfied that this court not only may, but ought, to make the declarations sought.
7. What is really at issue here is the question of costs and when Mr Valambous's liability for costs should cease. The defendant seems to want to give the impression that he has graciously given in and conceded the claimant's claim. Wrong. The defendant forfeited any right to question the claim when the claim was struck out in accordance with the order that I made (let it be emphasised - by consent) in August of this year, he having failed to give disclosure of documents. And I am bound to say that when, a day after disclosure was actually due, his solicitor says that the defence has been voluntarily withdrawn, it is disingenuous. And when his client's motives are described by the solicitor as being "a reluctance to have other parties mentioned", one begins to question the innocence of the defendant in and about his conduct of this claim and his involvement with this icon.
8. It may be, and I am prepared to accept that this is a possibility, that Mr Yanis Valambous wishes to preserve or attempt to preserve the good name of his father. If that is correct, then one can begin to understand the stance that he has taken, but I am not convinced that that is the case. If I were so convinced, then I would not have given voice to the matters that I have already done.
9. It goes further than that because, by 3rd September, the solicitors were saying that their clients were not satisfied with the claimant contention that ownership of the icon lies with the Hellenic Republic, the State of Greece, and suggesting that the icon be released as a gesture of goodwill. So there was defiance, if I might put it that way, right to the very end.
10. There has been prevarication in this case right from the very beginning. Witness the fact that the defendant put the claimant formally to proof of all matters almost, including a contention that Greek law was being wrongly interpreted by the claimant's advisers and a general lack of cooperation which suggests, as I have already said, that the defendant does not have entirely clean hands in this matter and that his protestations of innocence are ill-founded. And, indeed, as I said during the course of argument and discussion and submissions, it seems to me that the defendant is fortunate that the claimant is only seeking costs on the standard basis and not on the indemnity basis.
11. I am quite satisfied that this matter had to be brought to the court's attention and had to be considered by the court for the reasons given in the case of Wallersteiner v Moir [1974] 1 WLR 991. The making of a declaration is a judicial act and the court must be satisfied before declarations are made. After all this is a declaration which is binding on a State and binding on all the world in favour of that State.
12. So I am quite satisfied that the defendant is and should be liable for costs throughout this action. I am quite satisfied as well that everybody knew right from the very beginning that costs in this case were going to be very substantial. The defendant anticipated costs of £150,000 if the matter had been taken through to trial. The claimants who, after all, had to make the running, estimated that their costs would be £256,000 through to trial.
13. Some suggestion has been made that the claimants were not justified in instructing leading counsel. I could not disagree more. If ever there was a case where leading counsel ought to have been instructed, it is on behalf of a State trying to preserve or recover its own assets that have been wrongfully filched from it. And the importance of the case is reflected, as I am reminded, by the fact that, it was to be tried only by a High Court judge.
14. I have no hesitation, therefore, in saying that the claimants are entitled to their costs on the standard basis throughout this claim. Those costs should be assessed.
15. I am also asked, and it is a matter of contention, to order an amount to be paid on account of those costs . I have no hesitation in ordering a payment on account. The rules and the Costs Practice Direction are very clear that I must consider such an order and I am quite satisfied I should make one in this case. The claimant's estimate of costs is just shy of £90,000. I am satisfied that they will receive a good two-thirds of that at least, if not more, and I am quite satisfied that the claimants are entitled to more than 50 per cent of what they are likely to get. I think the correct amount is £40,000. I appreciate that that is not capable of being justified in detail by me. Painting with a broad brush, it is the right figure in my view. £40,000 payable within 14 days.