Judgment was handed down yesterday in an important case involving a Henry Moore sculpture (Draped Seated Woman) lovingly known as ‘Old Flo’. The sculpture, bought from the artist by London County Council in 1962 to be publicly displayed in the city’s East End, has been at the centre of a dispute between two London boroughs: Tower Hamlets in the central eastern part of the city and Bromley in the south-east. When the (now disgraced) mayor of Tower Hamlets had proposed selling the sculpture in 2012, for an amount approaching £20 million, protests came from a number of areas, including the Art Fund, where it was felt that the sale into private hands would be contrary to the public interest. Subsequent research concluded that the Borough of Bromley – of all places – had title to the sculpture, not Tower Hamlets.

In his judgment, Justice Norris of the High Court had to wade through a fairly convoluted history involving the creation and winding up of various municipal bodies, as well as the transfer agreements between these bodies, in order to determine whether Old Flo had indeed passed to Bromley. He found that the route of title had gone from London County Council to the Greater London Council, then to the London Residuary Body and finally to the Borough of Bromley in 1996. A question had arisen as to whether at one point in this messy history, one of those bodies (the Greater London Council) had transferred the sculpture, along with the land on which the sculpture was displayed, to Tower Hamlets, pursuant to a 1981 order.

But the judge found that the sculpture was not a fixture and therefore could not be transferred automatically along with the land (no mention had been made of the sculpture in the 1981 order). His words are of particular interest on the question of art and its placement within a specific ‘cultural’ context. Justice Norris writes:

‘The sculpture is an entire object in itself. It rested by its own weight upon the ground and could be (and was) removed without damage and without diminishing its inherent beauty. It might adorn or beautify a location, but it was not in any real sense dependant upon that location.’

So he wasn’t much in favour of seeing a moveable work of art as anything more than a chattel (something separate, distinct from its surrounding environment), at least not in this case. Many art critics may disagree. But he is the judge after all.

Good news for Bromley. This meant that the 1981 order had not transferred the sculpture to Tower Hamlets and so, through the step-ladder succession described above, ownership in the object (the mere chattel) fell to Bromley.

But things didn’t end there. Old Flo hadn’t simply rested on her broad backside in East London for all these years. No, Tower Hamlets had moved her: first by way of loan to the Yorkshire Sculpture Park in 1987, then for restoration in 1992, then finally back to Yorkshire in 1997 where she remains to this day. These actions on the part of the borough were innocently taken, it should be added, influenced by a 1986 article written on the subject which implied that Tower Hamlets had ownership. But all actions have their effects, and these particular actions constituted conversions of the property – i.e. torts committed against the original owner (Bromley). As such, from the moment of the first conversion – let’s say, 1987 – Bromley had a right to sue. But no legal action was initially taken. Not until 25 years later did Bromley assert its title in the work. As such, the limitation period for actions in tort applied, and Bromley’s title extinguished after six years (note that this would still be the case even if the latest conversion in 1997 had been taken as the relevant cause of action that got the clock ticking). So Tower Hamlets was the declared owner of Draped Seated Woman.

In a surprise turn, the new mayor has stated that Tower Hamlets will not in the end be selling the sculpture. The work will remain on display to the public. The Yorkshire public, that is, at least for the time being. This is likely a good thing for the people of the Art Fund and elsewhere who had wanted the sculpture to remain on public display. But what does this case tell us about ownership of public art in the greater area of London? That is something we will just have to wait and see…

Picture: “Reclining Figure at Yorkshire Sculpture Park – geograph.org.uk – 519117” by David Sands. Licensed under CC BY-SA 2.0 via Wikimedia Commons.