UK: Ownership Of ‘Old Flo': Tower Hamlets LBC v Bromley LBC

In Tower Hamlets LBC v Bromley LBC [2015] EWHC 1954 (Ch) the court was called on to determine the legal owner of a 1957 Henry Moore sculpture known as 'Draped Seated Woman' or, more affectionately, 'Old Flo'. Inspired by Moore's experience as an official war artist in London during the second world war, Old Flo was purchased on 15 September 1962 by London County Council ("LCC") and placed in the Stifford Estate in Stepney (now in the London Borough of Tower Hamlets). However, the announcement in 2012 that Tower Hamlets intended to sell Old Flo sparked a claim by Bromley that in fact, it was the sculpture's legal owner, and that it should remain on public display in east London for the enjoyment of the public as a whole. As a result the question before the court was, quite simply: who owns the Henry Moore sculpture?

Background

In 1965 the LCC was replaced by the Greater London Council ("GLC") and the various London boroughs (including Bromley and Tower Hamlets). The sculpture therefore vested in the GLC in 1965. Old Flo remained on the Stifford Estate throughout. The GLC was in turn abolished in 1986 and replaced by the London Residuary Body ("LRB") and when the LRB was wound up in 1996, its assets vested in Bromley.

In April 1987 Tower Hamlets loaned the sculpture to the Yorkshire Sculpture Park for 6 months, following which it returned to its original site. In February 1992 Tower Hamlets arranged for the restoration of the sculpture and replaced the plinth, following which it returned to its original site and remained there until 1997 when it was again loaned to the Yorkshire Sculpture Park.

In 2012, former Tower Hamlets mayor, Lutfur Rahman, declared his intention to sell the sculpture, citing council cutbacks and the need to raise additional funds for public services. Bromley objected as detailed above.

Tower Hamlets argued that it was the owner of the sculpture because section 23 of the London Government Act 1963 ("the 1963 Act") stated that LCC land, and property 'held in connection therewith' would vest in the GLC. In 1981 the GLC transferred the Stifford Estate to Tower Hamlets under the Greater London Council (Transfer of Land and Housing Accommodation) (No.3) Order 1981 SI No. 1981/644. Article 4 of the Order stated that "...all liabilities attaching directly or indirectly to the GLC in respect of its ownership or occupation of such property shall by virtue of this order be transferred to and vest in or attach to [the Council for the London borough of Tower Hamlets]".

Tower Hamlets argued that the sculpture constituted property 'connected' to the Stifford Estate and consequently the sculpture had been transferred to Tower Hamlets along with the land.

Mr Justice Norris did not agree, on the basis that the 1963 Act dealt with the transfer of the LCC's land 'for the purpose of their function as a local authority', and that therefore the underlying concept was 'functionality'. The sculpture was not property held in connection with the LCC's functions as a local authority. Contemporaneous records showed that the sculpture was held by the LCC and the GLC in connection with its arts education programme. The power which authorised the original acquisition of the sculpture was s.157 of the Local Government Act 1939, not the Housing Act 1957. The money that paid for the sculpture was a specific annual sum allocated to arts purchases, not a housing cost. For these reasons, amongst others, Mr Justice Norris held that when the housing accommodation comprising the Stifford Estate passed from the GLC to Tower Hamlets, the sculpture remained vested in the GLC. Mr Justice Norris also accepted the argument advanced by Bromley that on 1 April 1986, the sculpture vested in the LRB, Bromley's predecessor.

As a final argument, Tower Hamlets  submitted that its dealings with the sculpture over the years, particularly since 1986, (in negotiating its loan to the Yorkshire Sculpture Park, arranging for its restoration, moving the sculpture between sites etc.) meant that it had converted the sculpture to its use and that Bromley could no longer bring an action to recover it. Neither Bromley nor the LRB had any part in any of these arrangements.

It was the final argument that proved persuasive for Tower Hamlets. Mr Justice Norris found that, based on the events of 1997 – 2002 whereby Tower Hamlets had arranged the loan of the sculpture, its restoration, the addition of a new plinth and exercising control over the work done, and making decisions to entrust the sculpture to others, Tower Hamlets had asserted rights of dominion over the sculpture inconsistent with the ownership rights of Bromley. Tower Hamlets had done more than simply 'safeguard' the sculpture: it had acted inconsistently with Bromley's entitlement to use the sculpture at all times and in all places.

Finally, Mr Justice Norris held that it was not the act of conversion that conferred title to Tower Hamlets – it was section 3(2) of the Limitation Act 1980 in consequence of Bromley's inaction and failure to bring proceedings within the 6 year statutory period from 1986. Tower Hamlets was therefore held to be the owner of the sculpture.

Analysis

It is arguable that contemporaneous records of meetings of the LCC and its allocation of funds for arts education should have proved pivotal in determination of ownership. These records showed that the sculpture did not vest with the land transferred to Tower Hamlets and remained a separate chattel, which, it follows, would have ultimately passed to Bromley as the successor to the LRB. It was failure to act within the relevant limitation period that meant Bromley's title to the sculpture was extinguished. Had Bromley acted within the limitation period, the outcome could have been very different.

It has now been reported that Bromley are appealing the decision in the High Court so it remains to be seen whether this decision will be upheld.

In the meantime, the current mayor of Tower Hamlets has reversed the decision of his predecessor and announced that Tower Hamlets will not sell Old Flo after all. It seems that Tower Hamlets now shares the original view taken by Bromley: that Old Flo belongs to the people of East London and should be available locally for public enjoyment as intended by Henry Moore.

It is perhaps ironic then that whilst these two London boroughs battle for ownership, Old Flo remains on loan to the Yorkshire Sculpture Park near Wakefield – her home for 18 years now.

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