Some of the online legal journals have now covered the Feldman case that has been discussed in detail here previously [1]. These new reports do bring to light a few points that were not mentioned in the other reports of the case, such as the fact that there is a possibility of a compromise, whereby the British Museum could acknowledge that due to their legality, it could be claimed that the four paintings were never legally a part of the British Museum’s collection – in which case the de-accessioning rules would not apply.
From:
Incorporated council of law reporting [2]
Attorney General v Trustees of the British Museum
Ch D: Sir Andrew Morritt V-C: 27 May 2005Under s 3(4) of the British Museum Act 1963 the Trustees of the British Museum were prohibited from returning an object which formed part of the collections of the museum to a previous owner of the object, notwithstanding that because of the circumstances leading up to the acquisition of the object, there was a moral obligation to do so.
Sir Andrew Morritt V-C so held in the Chancery Division when determining a Part 8 claim brought by the Attorney General against the Trustees of the British Museum. In 1946 the Trustees of the British Museum acquired four Old Master drawings. In 2002 the trustees considered a claim advanced by the Commission for Looted Art in Europe on behalf of the heirs of the late Dr Feldmann that each of the four drawings had been the property of Dr Feldmann in Czechoslovakia and had been stolen in 1939 by the Gestapo. The trustees agreed that the drawings should be returned to the extent permissible by law. The Attorney General was concerned whether as a matter of statutory construction the express prohibition contained in s 3(4) of the 1963 Act on the disposal of objects comprised in the collection of the British Museum prevented the objects to which that prohibition applied from being disposed of under the principle in In re Snowden, decd [1970] Ch 700, 709. In that case Cross J had determined that the court or the Attorney General might 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”. The Commission for Looted Art in Europe was given leave to intervene.S 3(4) of the British Museum Act 1963, as amended 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.”
SIR ANDREW MORRITT V-C said s 3(4) applied to “objects vested in the trustees as part of the collections of the museum”. There was no doubt that each of the four drawings was such an object. Cases falling within the Snowden jurisdiction did not constitute an implied exception. The very existence of the express exceptions negatived the recognition of further but implied exceptions. The cases in which the court had altered the trusts or other provisions of a charity regulated by statute, namely In re Shipwrecked Fishermen and Mariners’ Royal Benevolent Society [1959] Ch 220 and In re Royal Society’s Charitable Trusts [1956] Ch 87 depended on the proposition that the conferment of a limited power did not in those cases give rise to an implied prohibition against an action outside that limit. The proposition might or might not have been justified in those cases but that could have no effect on a case such this when the statutory provision plainly imposed a prohibition and the extent of the prohibition was clear. Only legislation or a bona fide compromise of a claim of the heirs of Dr Feldmann to be entitled to the four drawings could entitle the trustees to transfer any of them to those heirs.
Appearances: William Henderson (instructed by the Treasury Solicitor) for the Attorney General; Christopher McCall QC (instructed by Ian A Doubleday) for the trustees; Guy Newey QC and Clare Ambrose (Harbottle & Lewis) for the interveners.Reported by: Nick Mercer, barrister
From:
Maitland Chambers [3]
Attorney-General v Trustees Of The British Museum (2005)
[2005] EWHC 1089 (Ch); LTL 3/6/2005 : Times, June 2, 2005
Chancery Division Sir Andrew Morritt VCMembers
Christopher McCall QC, Guy Newey QCDate of Judgment
27 May 2005Facts
The express prohibition in the British Museum Act 1963 s.3(4), on the disposal of objects in the collections of the British Museum, prevented the defendant trustees from returning drawings to their owners. The fact that the trustees were under a moral obligation could not justify a disposition in breach of s.3(4) and neither could the Attorney-General sanction their return by relying upon the decision in Re Snowden (1970) Ch. 700. Only legislation or a bona fide compromise could entitle the trustees to return the drawings.The Attorney-General sought a determination in respect of four drawings held in the collections of the British Museum. Following a holocaust restitution claim by a third party for the drawings, the defendant trustees wrote to the Attorney-General requesting that he sanction the return of the drawings, following the decision in Re Snowden (1970) Ch. 700, as the trustees were under a moral obligation to return them. The Attorney-General was concerned whether the express prohibition in the British Museum Act 1963 s.3(4) on the disposal of objects in the collections of the British Museum prevented the drawings being disposed of under the Snowden principle. To resolve the question, he issued the instant proceedings and asked the court to determine a number of questions. The Attorney-General argued that the court should not direct or approve anything which was inconsistent with the Act. He contended that the powers of a statutory corporation such as the British Museum extended no further than what was expressly stated in its governing statutes and was necessarily and properly required for carrying out the purposes of its incorporation or such as might fairly be regarded as incidental to or consequential to those purposes. He further submitted that where Parliament had specified by statute where the public interest lay, neither the court nor the Attorney-General could take a different view.
Held
(1) Neither the Crown nor the Attorney-General had any power to dispense with due observance of Acts of Parliament. The courts and judges were committed to upholding the law and not sanctioning departures from it without lawful authority. (2) It was possible that the third party could, in separate proceedings, establish title to the drawings with the result that they would never have been part of the collections of the British Museum. In that event, s.3(4) would not preclude a disposition to the third party. (3) A compromise of the third party’s claim did not involve any breach of s.3(4) as bona fide compromises of the issues of fact were as binding as the decision of the court to that effect, Binder v Alachouzos (1972) 2 QB 151 considered. The power to compromise was not an unexpressed exception to s.3(4) but the consequence of its limited application only to objects which were part of the collections. The fact that moral considerations might be involved in an exercise of the power to compromise did not justify the non-application of s.3(4). (4) Dispositions by the trustees could only be justified by reference to a statutory exception. The Snowden jurisdiction did not constitute an implied exception to s.3(4). In fact, the very existence of the express exceptions to s.3(4) negated the recognition of additional implied exceptions. The word “disposition” in s.3(4) was broad enough to include omissions. Thus, a failure to rely upon the relevant provisions of the Limitation Act 1939 and Limitation Act 1980, otherwise than on legal advice, in order to effect a transfer, was also prohibited. The fact that the courts had in other cases altered trusts or other provisions of a charity regulated by statute was of no significance as s.3(4) clearly imposed a prohibition and the extent of the prohibition was clear. (5) In sum, a moral obligation could not justify a disposition by the trustees of an object forming part of the collections of the museum in breach of s.3(4) and there was nothing in Snowden to suggest otherwise. Only legislation or a bona fide compromise of a claim by the third party could entitle the trustees to transfer the drawings. In the instant case, there was no statutory exception and it was beyond the power of the Attorney-General to provide one.Judgment accordingly.
From:
Lexis Nexis [4]
Attorney General v Trustees of the British Museum.
Cite: BLD 3105052406; [2005] EWHC 1089 (Ch).
Court: Chancery Division.
Judge: Sir Andrew Morritt V-C.
Hearing Date: 27 May 2005.Representation: William Henderson (instructed by the Treasury Solicitor) for the Attorney General. Christopher McCall QC (instructed by Ian A Doubleday) for the trustees. Guy Newey QC and Clare Ambrose (instructed by Harbottle and Lewis) for the Commission for Looted Art in Europe.
Legislation Considered: British Museum Act 1963, s 4(3).
Summary: Equity—Equitable remedies—Restitution—Four drawings looted by Gestapo subsequently acquired by trustees—Drawings held by trustees as part of collections of museum—Consideration of moral obligation to return drawings—Absolute prohibition precluding any disposition, whether by act or omission, by trustees—British Museum Act 1963, s 4(3).In 1946 the trustees of the British Museum (the trustees) bought at auction three Old Master drawings and at about the same time the keeper of prints at the British Museum acquired a fourth. Since 1946 and 1949 respectively those drawings had been held by the trustees as part of the collections of the British Museum. Section 3(4) of the British Museum Act 1963 provided that objects vested in the trustees as part of the collections of the museum should not be disposed of by them otherwise than under ss 5 or 9 of the Act. In Re Snowden [1969] 3 All ER 208 the judge determined that the court or the Attorney General might authorise a payment out of charity funds which was motivated simply and solely by the belief of the trustees or other persons administering the funds that the charity was under a moral obligation to make the payment. 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 F that each of the four drawings had been the property of Dr F and had been stolen from him on 15 March 1939 by the Gestapo. The claim was for restitution not compensation alone. The Attorney General was concerned whether as a matter of statutory construction the express prohibition contained in s 3(4) of the Act on the disposal of objects comprised in the collections of the British Museum prevented the objects to which the prohibition applied from being disposed of under the Snowden principle and issued a Pt 8 claim to resolve the issue. The court granted CLAE leave to intervene. It was common ground that none of the exceptions to the prohibition imposed by s 3(4) was applicable. None of the drawings was a duplicate, unfit to be retained or useless. None of them was made after 1850 and the person in whose favour the disposition would be made was not another national museum. The Attorney General contended that in those circumstances the prohibition was absolute and precluded any disposition, whether by act or omission, by the trustees in favour of the heirs of Dr F.
The court ruled:
No moral obligation could justify a disposition by the trustees of an object forming part of the collections of the museum in breach of s 3(4) of the Act.Neither the Crown nor the Attorney General as a minister of the Crown had any power to dispense with due observance of Acts of Parliament. Similarly the courts and the judges were committed to upholding the law, not sanctioning departures from it. Accordingly the first essential step was to ascertain what was prohibited by s 4(3) of the Act. There was no doubt that, given the basis on which the instant application was made, each of the four drawings was an ‘object vested in the trustees as part of the collections of the museum’. It was possible that in other proceedings the heirs might establish title to the drawings with the consequence that they would never have been ‘part of the collections of the museum’. In that event s 3(4) would not preclude a disposition by the trustees in their favour. That conclusion led to two further propositions. The compromise of a claim by the heirs to be entitled to the drawings did not involve any breach of s 3(4). A bona fide compromise of the issues of fact involved in the claim was as binding as the decision of the court to that effect. It might involve a recognition that the drawings had never been part of the collections. In that event they had never been subject to the prohibition contained in s 3(4). For that reason the court rejected the argument that the power to compromise was an unexpressed exception to s 3(4). For similar reasons the court rejected the argument that as moral considerations might be relevant to an exercise of the power to compromise they might alone justify the non-observance of s 3(4) in relation to objects which were part of the collections. It followed that any disposition by the trustees in favour of the heirs could be justified, if at all, only by reference to a statutory exception to s 3(4). There was no statutory authority by way of exception and it was beyond the power of the Attorney General to provide one. The existence of s 4(3) excluded the Snowden jurisdiction in relation to acts or omissions it prohibited. Only legislation or a bona fide compromise of a claim of the heirs to be entitled to the four drawings could entitle the trustees to transfer any of them to the heirs.
Re Snowden (decd) [1969] 3 All ER 208 considered.