Old Flo is staying put – what can we learn?

Posted on: June 7, 2016 by

It was interesting to see that the judgment in the important ‘Old Flo’ case on which we reported in July 2015 has now been upheld by the Court of Appeal. You might recall the story. Old Flo – or Draped Seated Woman, to give Henry Moore’s 1,500 kg bronze figure her proper title – was bought by London County Council in 1962 to be publicly displayed in the city’s East End. Fast-forward fifty years and a proposal to sell the sculpture for an amount approaching £20 million sparked an investigation into who really owned Old Flo.

Reclining_Figure_at_Yorkshire_Sculpture_Park_-_geograph.org_.uk_-_519117The answer was far from simple and resulted in a protracted legal battle between the London Boroughs of Tower Hamlets and Bromley. To cut short a very long and convoluted story involving several layers of reorganisations within London’s local government structure, it was found that the chain of title should have vested Old Flo in the Borough of Bromley, all things being equal.

There was, however, a very significant twist in the tale. In the genuine belief that it was the true owner, Tower Hamlets had given Old Flo some ‘TLC’, first sending her on long vacation to the Yorkshire Sculpture Park in 1987, then for restoration in 1992, then finally back to Yorkshire in 1997 where she still resides. These actions were held to have amounted to conversions i.e. torts, against the rightful owner, Bromley. Bromley therefore had a right to sue, but, in its blissful ignorance, failed to assert its title in the work until 2012. This meant that the limitation period during which it could have brought a claim (six years for actions in tort) had expired, thus extinguishing Bromley’s title.

Tower Hamlets was therefore declared the owner in the High Court case in July 2015; Bromley sought leave to appeal, but this was declined by the Court of Appeal in the hearing last month, indicating its agreement with the High Court’s decision.

This obviously gives more weight to the High Court’s judgment. It also raises some important questions, particularly about conversion. How much does a party in possession of a work of art need to do with it to start a limitation period running? Restoration? Loan to a third party? It seems unlikely that the Court of Appeal’s judgment will shed much light on these questions. Perhaps one lesson for those who may find themselves in the position of a Tower Hamlets is to keep careful records of any actions they take in relation to the work; as well as being good practice generally, this might just give them a good chance of seeing off any assertions by others claiming better title.

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