Attorney General v Trustees of the British Museum

JurisdictionEngland & Wales
JudgeTHE VICE CHANCELLOR
Judgment Date27 May 2005
Neutral Citation[2005] EWHC 1089 (Ch)
Docket NumberCase No: HC04C03885
CourtChancery Division
Date27 May 2005

[2005] EWHC 1089 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

the Vice Chancellor

Case No: HC04C03885

Between
Her Majesty's Attorney-General
Claimant
and
The Trustees of the British Museum
Defendant

Mr William Henderson (instructed by The Treasury Solicitor) for the Claimant

Christopher McCall QC (instructed by Ian A Doubleday) for the Defendant

Mr Guy Newey QC and Miss Clare Ambrose (instructed by Harbottle & Lewis) for The Commission for Looted Art in Europe– Intervening with the leave of the Court

Hearing dates: 24th May 2005

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE VICE CHANCELLOR

The Vice-Chancellor:

Introduction

1

The Trustees of the British Museum ("the Trustees") were incorporated by s.14 British Museum Act 1753 26 Geo II cap.22. By s.9 of the same Act it was provided that the "several collections, additions and library" of the Museum "shall remain and be preserved…for public use to all posterity". Subject to various powers of disposal conferred on the Trustees by subsequent enactments, none of which is presently relevant, the obligation imposed by s.9 of the 1753 Act remained in force until the enactment of the British Museum Act 1963.

2

In 1946 the Trustees bought at auction at Sotheby's for the aggregate sum of nine guineas three Old Master drawings, namely The Holy Family by Niccolo dell'Abbate, An Allegory on Poetic Inspiration with Mercury and Apollo by Nicholas Blakey and Virgin and infant Christ, adored by St Elizabeth and the infant St John by Martin Johann Schmidt. At about the same time the Keeper of Prints at the British Museum, Mr Campbell Dodgson, acquired a fourth, St Dorothy with the Christ Child by a follower of Martin Schongauer. This drawing was part of the bequest made by Mr Dodgson in favour of the British Museum which took effect in 1949. Since 1946 and 1949 respectively those drawings have been held by the Trustees as part of the collections of the British Museum.

3

On 30th September 1963 the British Museum Act 1963 came into force in the place of inter alia the 1753 Act. It provided for the Trustees to continue as a body corporate (s.1) and conferred on them power, subject to the restrictions imposed on them by virtue of any enactment (whether contained in that Act or not) to enter into contracts and other agreements, to acquire and hold land and other property, and to do all other things that appear to them necessary or expedient for the purposes of their functions (s. 2). S.3(1)-(3) require the Trustees to keep the objects comprised in the collections at the places and in the manner there specified. S.3(4) provides:

"Objects vested in the Trustees as part of the collections of the Museum shall not be disposed of by them otherwise than under section 5 or 9 of this Act [or section 6 of the Museums and Galleries Act 1992]."

S.5 authorises the Trustees to dispose of duplicates, objects made after 1850 and objects unfit to be retained in the collections of the Museum. It also entitles the Trustees to destroy useless objects. S.9 of that Act and s.6 of Museums and Galleries Act 1992 entitle the Trustees to transfer objects comprised in the collections of the British Museum to the Trustees of any other of the specified national museums.

4

In 1970 Cross J determined that the Court or the Attorney-General may authorise:

"a payment…out of charity funds which is motivated simply and solely by the belief of the trustees or other persons administering the funds that the charity is under a moral obligation to make the payment",

see Re:Snowden [1970] Ch.700, 709.

5

In 2002 the Trustees considered a claim advanced by The Commission for Looted Art in Europe ("CLAE") on behalf of the heirs of the late Dr Feldmann that each of the four drawings had been the property of Dr Feldmann in Brno, Czechoslovakia and had been stolen from him on 15th March 1939 by the Gestapo. The claim was and is for restitution not compensation alone. At a meeting of the Trustees held on 27th July 2002 it was agreed that:

"6.4.3 Having regard to the cogency of the evidence adduced within the context of what were acknowledged to be the exceptional atrocities committed during the 1933–1945 era, the claimants request for the return of these drawings ought to be acceded to if and to the extent permissible by law.

6.4.4 With the agreement of the claimants and [Department for Culture, Media and Sport], this case should be referred to the Spoliation Advisory Panel for an opinion on the appropriate action to take in response to the claim given the fact that the claim is solely for restitution."

6

Before the claim was put before the Spoliation Advisory Panel the Trustees sought the advice of counsel and in implementation of that advice wrote to the Attorney-General on 29th August 2003. The Trustees expressed the view that:

"..if the Attorney-General were to take a positive view of his powers to sanction Snowden-type action in relation to objects now comprised in a national collection and subject to an acknowledged holocaust restitution claim, he would offer a straightforward solution to the debate in the present case, in respect of which equity requires a swift solution."

7

The Attorney-General was concerned whether as a matter of statutory construction the express prohibition contained in s.3(4) British Museum Act 1963 (as amended) on the disposal of objects comprised in the collections of the British Museum prevents the objects to which that prohibition applies from being disposed of under the Re:Snowden principle. To resolve that question he issued the Part 8 claim now before me. It seeks the determination of the Court as to:

1. Whether, as a matter of law, where the Defendants consider that they are under a moral obligation to return an object which forms part of the collections of the British Museum to a previous owner of the object or his heirs by reason of the circumstances leading up to their acquisition of the object, it would be possible for the principle known as the principle in Re: Snowden [1970] Ch. 700 to be applied so as to permit such a return:

(a) whether or not the object is one to which s.5( 1) or 5(2) British Museum Act 1963 applies?

(b) where the object is one to which s.5( 1) or 5(2) British Museum Act 1963 applies?

(c) at all?

2. Whether, in circumstances where:

(a) The Defendants are sued for the return of an object comprised in its collections by the object's former owner or his successors; and

(b) But for the provisions of the British Museum Act 1963 the principle in Re: Snowden might have been applied so as to permit such return of the object, the Defendants might properly on the ground (and only on the ground) that they regarded themselves as under a moral obligation to return the object to the person or persons suing them for its return, omit to plead or to rely upon a defence based upon the provisions of the Limitation Act 1980 or some earlier Limitation Act which would or might be available to them and, if so, whether they could do so (i) with or (ii) without the approval of H.M. Attorney General.

Specifically

3. On the footing that 4 drawings which were looted from a Dr Feldmann in 1939 and which were subsequently acquired by the Defendants form part of the collections of the British Museum, whether, in the event that (i) the Defendants should consider themselves, by reason of the fact of the drawings having been looted, under a moral obligation to return the drawings to the heirs of a Dr. Feldmann and (ii) the Attorney General should approve such return, the Re: Snowden principle would be capable of being applied so as to permit the Defendants (if the Attorney General approved) properly to return the drawings to the heirs of Dr. Feldmann."

8

I have been addressed on those questions by counsel for the Attorney-General and for the Trustees. In addition I gave leave to CLAE to intervene so that counsel on its behalf might address me. I accepted a short witness statement made on behalf of CLAE by its solicitor. The Attorney-General, the Trustees and CLAE all accept that I must approach the issues on the assumption, which CLAE does not admit, that the heirs of Dr Feldmann do not have a claim, whether at law or in equity, against the Trustees for restitution of the drawings or any of them. It must follow that in the terms of s.3(4) I must treat each drawing as "…vested in the Trustees as part of the collections of the Museum.."

The Background

9

The issues for my determination are, ultimately, bare issues of law but they arise against a background to which the Trustees and CLAE attach the greatest importance. It is right that I should draw attention to it.

10

On 5th January 1943 Her Majesty's Government joined with sixteen others to make the Inter-Allied Declaration against Acts of Dispossession committed in Territories under Enemy Occupation or Control (Cmd.6412). The declaration contained a formal warning "to all concerned" of the declarers' intention "to do their utmost to defeat the methods of dispossession". They reserved "all their rights to declare invalid any transfers of or dealings with property, rights and interests of any description whatsoever." As pointed out in note 6 it had been decided "as a first step" to establish a committee of experts "to consider the scope and sufficiency of the existing legislation…for the purpose of invalidating transfers or dealings…in all proper cases."

11

On 7th May 1944 Her Majesty's government formed "the British Committee on the Preservation and Restitution of Works of Art, Archives and Other Material in Enemy Hands", otherwise known as the Macmillan Committee. It was dissolved in 1946 because the chairman,...

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