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Judge refuses council permission to appeal decision on ownership of sculpture

A High Court judge has refused the London Borough of Bromley permission to appeal in its battle with the London Borough of Tower Hamlets over the ownership of a Henry Moore sculpture.

The sculpture – entitled Draped Seated Woman ­– was bought by the London County Council in 1962 and shortly after located on Stepney’s Stifford Estate, which passed to Tower Hamlets.

Tower Hamlets Council loaned the sculpture to the Yorkshire Sculpture Park in 1997.

The former mayor of Tower Hamlets, Lutfur Rahman, announced plans in 2012 to sell the sculpture to fund local services. (The current mayor has reportedly shelved the sale plans)

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Bromley Council, however, claimed ownership of the sculpture as successor to the Greater London Council through the London Residuary Body.

Tower Hamlets brought Part 8 proceedings in a bid to establish ownership.

Earlier this month Mr Justice Norris ruled in The London Borough of Tower Hamlets v The London Borough of Bromley [2015] EWHC 1954 (Ch) that ownership had passed from the GLC to the London Residuary Body and not to Tower Hamlets.

However, the High Court judge concluded that, on the facts, the title of Bromley had been extinguished and Tower Hamlets now owned the sculpture.

“Focusing solely upon the events of 1997-2002, 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,” the judge said.

In a supplementary judgment this week in The London Borough of Tower Hamlets v The London Borough of Bromley [2015] EWHC 2271 (Ch) Mr Justice Norris has now refused Bromley permission to take the case to the Court of Appeal.

Bromley’s arguments in favour of permission being granted – and the judge’s reasons for rejecting them – were as follows:

  • There were many statues in London potentially affected by the original judgment: “My judgment relates to a sculpture that was physically removed from London nearly 20 years ago: there is no indication that this is a common circumstance.”
  • Because the judge had held that a public body can acquire by conversion a sculpture that had been acquired by public funds for a purpose broader than can be given by Tower Hamlets: “My judgment considers ownership: it does not contemplate a ‘purpose trust’, and the case was not so argued. The only question is whether the sculpture should be in the ownership and control of one local authority or the other. They may have differing ideas about how it should be dealt with and what moral limits should be placed on their statutory powers having regard to the history of the sculpture. But that is not a legal question.”
  • Because the area of law the judge had applied was necessarily heavy with 19th century cases: “In fact I took my summary of the law from post-millennial cases and only addressed a 19th century case in detail because Bromley placed that case in the forefront of their submissions.”

“Although others may take a different view I do not consider that there is a ‘compelling’ reason to give permission: and I leave it to a superior court,” Mr Justice Norris said.

The judge also rejected Bromley’s submission that there was a real prospect of success on appeal.

“They argue that I found that the sculpture had been acquired and purchased ‘for London’ and to conclude that it can now be treated as the property of a particular London Borough is contradictory and cannot be correct as a matter of law, because local authorities are expected to safeguard property, not appropriate it, and authorities have no power to acquire property otherwise than by a Deed of Gift or through another lawful channel,” the judge noted.

In response he said: “I believe I simply applied the words of the statute and I do not consider that this argument has a real prospect of success: though of course a superior may think otherwise.”

The judge added: “I shall refuse permission and leave it to the Court of Appeal to decide whether further public money should be spent.”

In relation to costs, the judge said the precise question to be addressed was “whether, because it unsuccessfully advanced legal argument on material that was relevant to the issue on which it won, Tower Hamlets should be deprived of some part of the costs which it would otherwise receive under the general rule, and an ‘issues based’ order should be made”. Mr Justice Norris answered that question in the negative.

Nigel Giffin QC and Christopher Knight of 11KBW appeared for Tower Hamlets. Timothy Straker QC and Dilpreet Dhanoa of 4-5 Gray’s Inn Square appeared for Bromley Council (in its capacity as successor to the London Residuary Body).

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