The case of the destroyed art

A few years ago, in 2009, an interesting case came before the High Court. It was interesting because like so many claims involving interference with goods, it was a story about people, about mistakes they make, misunderstandings between them. and things that can happen to them. It was also relatively complex because it was a claim against three defendants, with a fourth defendant in a Part 20 claim brought by two of the original defendants, with the first two defendants and the third also pointing fingers at each other.

The claimant was sculptor Terry New.

Nidus Sculpture at The Fitzwilliam Museum, Cambridge

Nidus Sculpture at The Fitzwilliam Museum, Cambridge

Mr New was head of Fine Art and head of Sculpture at the Royal Academy Schools in London from 1986 to 2011. He has had solo exhibitions in Britain and abroad and his works can be found all over the world. He is currently a Fellow as well as the president of the Royal British Society of Sculptors.

What happened, at first sight?

  • In December 2002, Mr New rented a garage from Beavercroft Ltd. The garage was in Lewisham, close to Mr New’s studio in Deptford as well as close to his home.
  • Beavercroft Ltd sold the site with the garages to Gromore Limited and Munshi Investments Limited (the first and second defendants) in September 2004.
  • On 27 April 2007, Mr New discovered that the garage had been torn down.

He had lost everything that had been inside the garage. This included art as well as sixteen silicone moulds created in the course of twenty years. Some of those moulds weighed around 9/2 stone, nearly 60 kilogram. Also in the garage had been some personal possessions as well as works made by Mr New’s wife, Vicky Reynolds, who passed away before the hearing. Apparently, she used to live in Portsmouth.

First, the judge (Christopher Pymont QC) looked at whether Mr New’s “business use” of the garage had been allowed under his contract. The tenancy agreement stated that Mr New agreed to “rent the premises for use as a private garage or for storage … and not to sublet”. The judge decided that Mr New’s use of the garage had been lawful, on the basis of the wording in the agreement. This was further strengthened by the fact that Mr New was not living in any of the premises to which the two rows of garages – 43 in total – originally belonged. The garages were on a terrain with a high spiked fence containing a bolted and padlocked gate.

Then the judge looked at who did what and when.

Mr New’s experiences:

  • Mr New was visiting his daughter in Berlin from 11 to 19 April 2007.
  • On 20 April 2007, Mr New found an urgent message on his answer-phone from his landlord, asking Mr New to call his landlord.
  • Mr New called immediately and was told that his tenancy was being terminated.
  • Mr New replied that he should have at least one full month’s written notice. (The judge looked at the details and assessed this as meaning that the earliest termination date would have been 20 June 2007.)
  • Mr New was then told that a letter had been sent terminating the tenancy. This turned out to be incorrect.
  • Mr New heard that the site was being sold, but not that the garages were about to be pulled down.
  • Mr New said that he was very busy that week, as he had just returned from Berlin, but said he would get back to the landlord shortly.
  • On 27 April 2007, Mr New called his landlord again and said that he would not be able to empty the garage until the following Thursday.
  • Mr New was told to telephone the builder on the site,
  • When Mr New did that, he was told that the garages had already been demolished.
  • Mr New went to the site the following day and found a handwritten notice saying “All garages will go down 21st April”. There was no trace of the items that Mr New had stored in the garage.
  • Mr New went to the site again on 30 April 2007 and was told that his possessions were now likely “under tons of concrete”.

Events Mr New was unaware of:

  • In September 2006, the local planning committee granted permission for the demolition of the garages and for nine two-bedroom houses, parking spaces and so on.
  • The first and second defendants then decided to sell the site and instructed the defendant in the Part 20 claim to act for them.
  • The defendant in the Part 20 claim contacted a developer (the third defendant).
  • The contract between the first and second defendants as sellers and the third defendant as buyer was signed on 30 March 2007. The completion date was on or before 29 May 2007.
  • The property was sold vacant:

    “The Buyer will be allowed access to the vacant garages. The Seller will give immediate notice to quit the garages that are currently tenanted.”

  • The judge noted that the first and second defendants had no legal right to obtain vacant possession with regard to Mr New’s garage. “There is no reliable evidence” that showed how the first and second defendants intended to fulfil their contractual obligations toward the buyer (the third defendant) without violating Mr New’s rights (or at all).
  • On 23 April 2007, the first and second defendants promised vacant possession on completion (on or before 29 May 2007).
  • Just before 30 March 2007, the third defendant asked access to the site for soil tests, involving bore holes and measurements.
  • The first and second defendants told the defendant in the Part 20 claim which garages were vacant and which ones were not.
  • The site inspection to determine which garages were still occupied was slightly delayed but took place on 14 April 2007. The parties had a list dated 30 July 2004, which was likely to be incorrect by then. All garages were checked. The doors of unoccupied garages were left open, and then removed. The data on the 2004 list were used to attempt to contact the tenants of occupied garages by telephone. White crosses were painted on the doors of garages that were occupied but for which no contact with their tenants was established.
  • By the end of the morning of 14 April 2007, only ten garages still had closed doors.
  • It is not clear whether Mr New’s garage was opened on 14 April 2007, but it is likely the day on which the voice mail message was left for Mr New (who was not in the UK, but visiting his daughter in Berlin).
  • Also on 14 April 2007, the handwritten notice on the gate was left that stated that all garages would be torn down on 21 April 2007.
  • On Saturday 21 April 2007, the first and second defendants (and/or parties acting for them, such as a builder) visited the site. Some tenants were still removing possessions.
  • On Saturday 21 April 2007, the doors to all remaining garages were removed, with the exception of only one or two garages including Mr New’s garage, which at that point was still filled to the brim.
  • Unaware of the true nature of the items in Mr New’s garage, the persons who looked inside the garage appear to have described them as “rubbish”, “looked like nothing”, “didn’t look like it had any value”.
  • Still on Saturday 21 April 2007, a new padlock was placed on Mr New’s garage as well as on the gate to the site. Not everyone had keys for these padlocks.
  • On Monday 23 April 2007, the third defendant went back to the site.
  • It appears that Mr New’s possessions were removed and treated as rubbish on the following day (Tuesday 24 April 2007) as that was the day when the garages ended up being demolished and materials were deposited into skips.

The judge dismissed the claim against the first and second defendants and held the third defendant liable as follows:

  • in trespass for demolishing Mr New’s garage;
  • in trespass and wrongful interference with goods for removing Mr New’s possessions.

The third defendant had had permission to remove small parts of some roofs in order to place bore holes on the location of the garages. Instead, the third defendant took the roofs off some of the garages. That raised stability problems for some of the walls and it appears that the third defendant then decided that it might just as well tear down all the garages.

“I think it likely that he [one of the Directors of the third defendant] simply decided to go ahead with what Mindcross [the third defendant] needed to do without proper regard to the interests of others on the site, including Mr New.”

The first and second defendant had not given the third defendant permission to demolish Mr New’s garage or remove his goods. The first and second defendants could not have foreseen the actions of the third defendant’s investigative team. That essentially relieved them from their liability.

“Liability only arises when it is reasonable for it to be imposed.”

The judge also decided that the defendant in the Part 20 claim had not breached his duty to the first and second defendants. (That defendant in the Part 20 Claim gave the third defendant access to the site.)

The value of Mr New’s possessions was around £300,000, but no assessment for damages was included in this judgment, as it was only intended to determine liability.

What happened to Mr New even constituted wrongful eviction, said the judge.

How could this have been prevented? Simply by everyone treating everyone else the way they would have wanted to be treated too, as human beings. When you place yourself in the shoes of the other party, if often becomes very clear what you should do. Usually, that is also what the laws says that you should do.

When in doubt, the next step is to ask yourself what you would be reasonable, what you could reasonably expect from yourself if you were the other party. That’s when you may have to start looking at the law in some detail.

You can read the High Court’s judgment: here.

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