Government of the Islamic Republic of Iran v The Barakat Galleries Ltd

JurisdictionEngland & Wales
JudgeLawrence Collins L JJ.,Wall,Lord Phillips CJ
Judgment Date21 December 2007
Neutral Citation[2007] EWCA Civ 1374
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: A2/2007/0902/QBENF, A2/2007/0902(A)/FC3 TLQ/06/0601
Date21 December 2007
Between :
Government of The Islamic Republic of Iran
Appellant
and
The Barakat Galleries Limited
Respondent

[2007] EWCA Civ 1374

Before:

The Lord Chief Justice of England and Wales

The Right Honourable Lord Justice Wall and

The Right Honourable Lord Justice Lawrence Collins

Case No: A2/2007/0902/QBENF, A2/2007/0902(A)/FC3 TLQ/06/0601

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

The Honourable Mr Justice Gray

Royal Courts of Justice

Strand, London, WC2A 2LL

Sir Sydney Kentridge QC, Norman Palmer and David Scannell (instructed by Messrs Withers LLP) for the Appellant Philip Shepherd QC and David Herbert (instructed by Messrs Lane & Partners LLP) for the Respondent

Approved Judgment

Hearing dates: 9th and 10th October 2007

Lord Phillips of Worth Matravers CJ:

Introduction

1

This is the judgment of the court, to which all of its members have contributed, on an appeal from a judgment of Gray J dated 29 March 2007 on a trial of two preliminary issues in an action brought by the appellant (“Iran”) to recover antiquities alleged to form part of Iran's national heritage. Gray J decided those issues in favour of the respondent (“Barakat”). His findings are fatal to the claim. He gave permission to appeal because of the importance of the issues not only to Iran but to other countries seeking the return of valuable antiquities that form part of their national heritage.

2

The unlawful excavation and trafficking of antiquities has become very big business. In 1970 the signatories to the UNESCO Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property (ratified by the United Kingdom in 2002) recognised not only that it was incumbent on every State to protect the cultural property within its borders against the dangers of theft, clandestine excavation and illicit export, but also that it was essential for every State to become alive to the moral obligations to respect the cultural heritage of all nations and that the protection of cultural heritage could only be effective if organised both nationally and internationally among States working in close co-operation (recitals 3, 4 and 7). In the Supreme Court of Ireland, Finlay CJ said that it was universally accepted that one of the most important national assets belonging to the people is their heritage and the objects which constituted keys to their ancient history; and that a necessary ingredient of sovereignty in a modern State was and should be an ownership by the State of objects which constitute antiquities of importance which were discovered and which had no known owner: Webb v. Ireland [1988] I.R. 353 at 383.

3

On this appeal Iran seeks to assert its ownership of antiquities which are almost 5,000 years old. The appeal raises questions which were left unsettled by Att-Gen of New Zealand v Ortiz [1984] AC 1 (CA and HL) on the recognition or enforcement of foreign national heritage laws. Since the decisions of the Court of Appeal in 1982 and of the House of Lords in 1983, the United Kingdom has ratified the UNESCO Convention of 1970.

4

The antiquities consist of eighteen carved jars, bowls and cups made from chlorite (“the Objects”). Iran alleges that they date from the period 3000 BC to 2000 BC and originate from recent excavations in the Jiroft region of Iran which were unlicensed and unlawful under the law of Iran. The origin of the antiquities is denied by Barakat, but Iran's allegations are assumed to be correct for the purpose of the preliminary issues.

5

Barakat has a gallery in London, from which it trades in ancient art and antiquities from around the world. It has the antiquities in its possession in London. It claims to have purchased them in France, Germany and Switzerland under laws which have given it good title to them. Iran does not accept this. For the purpose of the preliminary issues Iran can advance no title to the antiquities other than that of their possession.

6

The preliminary issues that were ordered to be tried were as follows:

i) Whether under the provisions of Iranian law pleaded in the Amended Particulars of Claim, the claimant can show that it has obtained title to the Objects as a matter of Iranian law and if so by what means, and

ii) If the claimant can show that it has obtained such title under Iranian law, whether this court should recognise and/or enforce that title.

7

The first question reflected the fact that it was common ground between the parties that the question of title to the antiquities fell to be determined according to Iranian law, as being the lex situs of the antiquities at the time of derivation of such title. Iran's primary case was that Iranian law vested in Iran a proprietary title to the antiquities that entitled Iran to recover them in proceedings in England. It developed, however, an alternative case that Iranian law gave Iran an “immediate right to possession” of the antiquities that founded a claim in England for conversion or wrongful interference with the goods. Barakat successfully challenged both contentions. Accordingly the judge answered the first question in the negative “with some regret” (para 59).

8

The second question reflected Barakat's contention that, if Iranian law did confer any right upon Iran in relation to the antiquities, such law was a penal or public law and thus one that was not enforceable in this jurisdiction. As the judge had answered the first question in the negative, this question proved to be academic. The judge nonetheless gave it brief consideration. He concluded that the relevant Iranian law relied upon by Iran was both penal and public in character and that, accordingly, it could not be enforced in this country or relied upon to found Iran's claim to relief. This also was a conclusion which the judge described (para 100) as “a regrettable one”, and added (presumably not having been informed that the United Kingdom had ratified the UNESCO Convention) that the answer might be the one given by Lord Denning MR in the Ortiz case, namely an international convention on the subject.

9

The judge heard evidence from two experts on Iranian law. Professor Muhammad Taleghany gave evidence for Iran and Mr Hamid Sabi for Barakat. They were agreed as to the relevant statutory provisions of Iranian law but differed as to their effect. Professor Taleghany stated that they reflected the fact that the antiquities were owned by Iran. Mr Sabi stated that they did not. The judge concluded that Mr Sabi's opinion was to be preferred to that of Professor Taleghany. He concluded, accordingly, that Iran had no proprietary title to the antiquities. The judge went on to hold that Iranian law gave Iran an immediate right to possession of the antiquities, but that as this was not a proprietary right it could not found a claim for conversion or wrongful interference with the goods.

10

By this appeal Iran contends that the judge wrongly failed to hold that Iran has a proprietary title to the antiquities that entitles Iran to recover them. Alternatively, Iran contends that its immediate right to possession of the antiquities can properly found a claim for conversion or wrongful interference with goods. Barakat seeks to uphold the judge's decision for the reasons that he gave save that, by a Respondent's, notice it challenges the judge's finding that Iranian law gives Iran an immediate right to possession of the antiquities.

11

We propose to approach the issues raised by this appeal in the following order:

i) What is the interest in moveable property that a claimant must show in order to found a claim in conversion in this jurisdiction?

ii) What, if any, interest in the antiquities does Iran enjoy?

iii) Does that right found a cause of action in conversion under English law?

What interest in moveable property founds a cause of action in conversion under English law?

12

Iran's claim is brought in conversion, as preserved by the Torts (Interference with Goods) Act 1977. Section 1 of that Act provides:

“Definition of 'wrongful interference with goods'

In this Act 'wrongful interference' or 'wrongful interference with goods', means-

(a) conversion of goods (also called trover),

(b) trespass to goods,

(c) negligence so far as it results in damage to goods or to an interest in goods;

(d) subject to section 2, any other tort so far as it results in damage to goods or to an interest in goods.”

13

Section 2 of the Act provides:

“Abolition of detinue

(1) Detinue is abolished.

(2) An action lies in conversion for loss or destruction of goods which a bailee has allowed to happen in breach of his duty to his bailor (that is to say it lies in a case which is not otherwise conversion, but would have been detinue before detinue was abolished).”

14

The Act recognises that it is possible to enjoy different interests in goods. Thus section 7 provides:

“Double liability

(1) In this section 'double liability' means the double liability of the wrongdoer which can arise-

(a) where one or two or more rights of action for wrongful interference is founded on a possessory title, or

(b) where the measure of damages in an action for wrongful interference founded on a proprietary title is or includes the entire value of the goods, although the interest is one of two or more interests in the goods.

(2) In proceedings to which any two or more claimants are parties, the relief shall be such as to avoid double liability of the wrongdoer as between those claimants.”

15

The Act does not define “possessory title” or “proprietary title” and difficulty in this area of the law arises because of an...

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