The Creative Foundation v Dreamland Leisure Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Arnold |
| Judgment Date | 11 September 2015 |
| Neutral Citation | [2015] EWHC 2556 (Ch) |
| Docket Number | Case No: HC-2015001297 |
| Court | Chancery Division |
| Date | 11 September 2015 |
[2015] EWHC 2556 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Arnold
Case No: HC-2015001297
John Machell QC and Adam Rosenthal (instructed by Boodle Hatfield LLP) for the Claimant
Romie Tager QC and Simon McLoughlin (instructed by Brook Martin & Co) for the Defendants
Hearing date: 30 July 2015
Introduction
This is an application by the Claimant ("the Foundation") for summary judgment in respect of its claim against the First Defendant ("Dreamland"). The claim is for the delivery up of a section of wall bearing a mural painting known as "Art Buff" ("the Mural"). The Mural is attributed to the street artist known as Banksy. The Mural was removed by Dreamland from a building at 44–46 Rendezvous Street, Folkestone ("the Building"). Dreamland is the tenant of the Building. The Foundation brings the claim as the assignee of title to the Mural and of the cause of action of the landlord and freehold owner of the Building, Stonefield Estates Ltd ("the Landlord").
I should explain before proceeding further that, when I refer to the Mural in this judgment, I am generally referring both to the physical object and to the artistic work fixed on it. For the avoidance of doubt, I am not concerned with the copyright in the artistic work, which prima facie belongs to Banksy.
The facts
There is no material dispute as to the basic facts, which lie within a narrow compass.
The Foundation is a company limited by guarantee and a registered charity based in Folkestone whose objects include contributing to the regeneration of Folkestone by promoting creativity and the arts. By an assignment dated 19 March 2015, the Foundation acquired the Landlord's title to the Mural and its cause of action against the Defendants. If the Foundation succeeds in this claim, it intends to put the Mural on public display in Folkestone.
Dreamland is the tenant of the Building under a lease dated 23 January 2003 ("the Lease"), by which the Landlord demised the Building to Dreamland for a term of 20 years from 24 June 2002. It is common ground that the demise included the structure and exterior of the Building. Dreamland carries on the business of an amusement arcade at the Building.
The shares in Dreamland are owned by the Executors of the late James Godden. The Second and Third Defendants are James Godden's sons. The Second Defendant is the sole director of Dreamland. James Godden's widow Rochelle Godden has given evidence on behalf of the Defendants.
Before the events which gave rise to this dispute, the external flank wall of the Building had attracted graffiti on at least one occasion. A graffito is visible in a photograph dated May 2014. Subsequently, possibly on the same occasion as the Mural was painted, this graffito was painted over or "buffed out".
The Mural was spray-painted on the external flank wall of the Building on or around 28 September 2014 during the Folkestone Triennial, a three-yearly public art project organised by the Foundation in Folkestone. It was attributed to Banksy, a famous but pseudonymous street artist whose real identity is unknown. The artist painted the Mural without the prior knowledge or consent of either the Landlord or Dreamland. The image incorporates an area of paint which appears to match the paint used to "buff out" the earlier graffito.
The Mural attracted a good deal of local and national press attention. According to press reports at the time, the Mural was valued at around £300,000. Subsequently, an even higher valuation of up to £470,000 was suggested. There is no evidence as to the accuracy of these valuations, however.
Shortly after it appeared, Shepway District Council placed a sheet of Perspex over the Mural to protect it. It is not clear what authority the Council had to take this action. It proved to be a wise precaution, however, as the Mural rapidly attracted attention from graffiti artists. Graffiti were painted both on the wall alongside the Mural and on the Perspex. The latter were cleaned off.
Between 31 October and 3 November 2014 Dreamland caused a section of the wall of the Building on which the Mural had been painted to be severed from the Building and removed, and thereafter for the wall to be made good. This was done without the knowledge or permission of the Landlord. Mrs Godden's evidence is that it was done on the advice of Robin Barton. Mr Barton runs a gallery known as the Bankrobber Gallery, which Mrs Godden says "specialises in the preservation, restoration and marketing of street art created by … Banksy".
Mr Barton has an association with Stephan Keszler, who runs the Keszler Gallery in New York, USA. After the Mural had been removed from the Building, Mr Barton arranged for its shipment to the Keszler Gallery on behalf of Dreamland. It was exhibited for sale for a short period at the Art Basel Miami art fair in early December 2014, but no buyer was found. Thereafter the Mural remained in the custody of the Keszler Gallery in New York until it was placed into the custody of an independent storage facility in New York pursuant to an agreed order made by this Court.
Mrs Godden's evidence is that the Defendant intended that the net proceeds of sale of the Mural would be donated by Dreamland to the Jim Godden Memorial Trust in order to fund that trust's day-care centre for terminally ill patients known as The Pilgrim Centre in Folkestone.
Since the wall of the Building was made good, it has continued to attract graffiti.
Relevant provisions of the Lease
Clause 2 of the Lease includes the following sub-clauses containing covenants by the Lessee (the tenant i.e. Dreamland):
"(b) To keep the whole of the demised premises including all glass of the windows locks latches and fasteners all boundary fences (if any) and all fixtures and additions thereto in good and substantial repair and condition.
(d) In every fourth and in the last year of the Term howsoever determined to paint all the outside wood iron and other work now or usually painted with two coats of good quality paint and in a proper and workmanlike manner. And with every outside painting to restore and make good all external rendering wherever necessary.
(h) Not without the consent in writing of the Lessor to cut maim or injure any of the walls or timbers of the demised premises or make any alteration in or addition to the demised premises and not to erect or place on the demised premises or any part thereof any temporary erection or shed of any kind whatsoever and not to dig any sand gravel or earth thereout. And also not to impose or place or allow to be imposed or placed upon any of the floors or to suspend or allow to be suspended from the ceilings or roofs of the demised premises anything which may cause undue stress to the floors or timbers of the building
(p) At the expiration or other sooner determination of the Term peaceably to surrender and yield up to the Lessor the demised premises together with all buildings and erections now or hereafter to be built thereon and all landlords fixtures and all improvements to the demised premises in good and substantial repair and condition as aforesaid."
Summary of the Foundation's claim
Counsel for the Foundation summarised its claim as follows:
i) Freehold title to the demised premises is vested in the Landlord. The bricks and cement of the walls of the Building form part of the land.
ii) Upon being sprayed onto the Building, the paint used to create the Mural became part of the land.
iii) During the term of the Lease, Dreamland, as tenant, has a right to use the demised premises as a building in accordance with the terms of the Lease. A lease gives a tenant a qualified right to possession and a tenant has no right to use parts of demised premises, or fixtures, for other purposes.
iv) Dreamland had no right to cut the walls of the demised premises and to remove, and treat as its own, bricks and cement comprising part of the demised premises. In doing so, Dreamland committed a breach of clause 2(h) of the Lease.
v) Upon being cut from the Demised Premises, the bricks and cement, together with the paint sprayed onto them, regained their character as chattels, and title to those chattels vested in the Landlord.
vi) In cutting the walls of the Demised Premises, removing the bricks and cement, shipping the Mural to the USA and putting it up for sale, Dreamland committed the torts of trespass and conversion.
vii) Ownership of the Mural was vested in the Foundation by the assignment.
viii) The Court has power, which it should exercise, to order the delivery up of the Mural to the Foundation pursuant to section 2 of the Torts (Interference with Goods) Act 1977.
Dreamland's defence to the claim
Dreamland's defence to the claim is contained in paragraphs 12 and 13 of the Defendants' Defence. It consists of two contentions:
i) Dreamland was obliged, or at least entitled, to remove the Mural from the Building in order to comply with the Lessee's covenants in clause 2(b) and/or 2(d) of the Lease (paragraph 12)
ii) Once removed from the Building in compliance with its covenants under the Lease, the Mural became the property of Dreamland rather than the Landlord by virtue of an implied term in the Lease (paragraph 13).
The Foundation says that the first contention has no real prospect of success and that, even if the first contention is established, the second contention is wrong as a matter of law.
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