2 The case is discussed by PALMER NORMAN, Art Loans, 1997, pp. 171 et seqq, and by SIR MASON ANTHONY, Mediation and Conciliation in Art Disputes, Institute of Art and Law seminar with Allen
& Overy, 16 June 1997.
3 MASON, ibid.
B. The Beaverbrook Foundation and the Beaverbrook Art Gallery
4This was a controversy that went to arbitration. The Beaverbrook Foundation laid claim to certain paintings that Lord Beaverbrook had delivered (or caused to be delivered) to a public Gallery which he had established in his name at Fredericton in New Brunswick.
The works had entered the Gallery some four to five decades prior to the eruption of the dispute and virtually all of the persons involved were now dead. There existed a mass of conflicting documentation as to whether the delivery of the works to the Gallery amount-ed to a gift or a loan. On this distinction dependamount-ed the answer to the question whether the property in them had vested irrevocably in the Gallery or whether the Foundation was entitled, as bailor to the Gallery, to demand their delivery up. Aside from voluminous evidence as to the state of mind of Lord Beaverbrook at the time of the stocking and opening of the Gallery, the resolution of the dispute involved detailed analysis of the law concerning gifts of chattels and of the numerous defences that might be raised claims for the possession of chattels, including the triggering and suspension of limitation periods, the tributary doctrines of fraudulent concealment and discoverability, the concepts of laches, estoppel by convention and estoppel by representation, and various principles of evidence. Harsh words were spoken by the arbitrator about the conduct and motives of Lord Beaverbrook, and by the Foundation about certain allegedly prejudicial comments from the arbitrator that indicated inferable bias. The arbitrator (the Hon Peter Cory, a former justice of the Supreme Court of Canada) held in favour of the Gallery and the appeal tribunal (consisting of three retired Canadian judges) upheld his award. The ap-peal tribunal remarked on the “tsunami” of material that the Foundation had served up in order to substantiate its appeal. From the Foundation’s unsuccessful appeal on costs, we know that the Gallery’s costs alone (awarded against the Foundation) were in the region of 4.9 million Canadian dollars. One can fairly assume that (at the very least) the Foun-dation’s own costs were not significantly less than this.
C. Some observations on the foregoing cases
Even this limited comparison shows that litigation, arbitration, and mediation are not always distinct processes for the resolving of disputes. The lines of demarcation are not
4 See the analyses by JAHN INA, Loans Versus Gifts: Determining the Donor’s Intention, Lord Beaver-brook v The BeaverBeaver-brook, Art Gallery Art Antiquity and Law Vol. 12, 2007, p. 81 on the original ar-bitration and by HERMAN, Art Antiquity and Law, Vol. 16, 2011, p. 317 on the appeal.
II. Australia and Canada: two cases of benign but vague intentions
A. Dame Mary Durack Miller
2This case involved a claim by the Battye Library in Perth, Western Australia, against the distinguished Australian author Dame Mary Durack Miller (“Dame Mary”). The Library claimed both title to and possession of certain Durack family papers, which Dame Mary had entrusted to the Library in 1959 or 1960. The Library had later redelivered the papers to Dame Mary at her request and she had signed certain “loan chits” on that occasion.
The papers did not return to the Library and at one point negotiations were begun for their sale to the National Library of Australia at Canberra. Family members alleged that the original deposit to the Battye Library by Dame Mary was solely for the purpose of safekeeping and did not affect her title, and that if the State Library Board wished to regain the papers it should submit to arbitration and accept an agreed valuation. The Board rejected this and issued a writ in the Supreme Court of Western Australia, alleged-ly on the day that Dame Mary was diagnosed as suffering from cancer. By that time a rift was reported to have developed between her siblings (who favoured the Library) and younger members of the family (who favoured retention). After some anguish, the claim was eventually settled by mediation on undisclosed terms, the mediator being Sir Lau-rence Street, former Chief Justice of New South Wales. Sir Anthony Mason has de-scribed the case as a suitable one for mediation because “it was a dispute in which both parties might have sustained some damaging publicity had the matter gone to trial and the costs of mediation may have been less than the costs of litigation”3. Sir Anthony has also remarked that the Australian government increasingly favours mediation as a means of resolving agency disputes and that the United States government has called on federal agencies to expand their use of Alternative Dispute Resolution (“ADR”) techniques, even in the case of negotiated rule making.
2 The case is discussed by PALMER NORMAN, Art Loans, 1997, pp. 171 et seqq, and by SIR MASON ANTHONY, Mediation and Conciliation in Art Disputes, Institute of Art and Law seminar with Allen
& Overy, 16 June 1997.
3 MASON, ibid.
B. The Beaverbrook Foundation and the Beaverbrook Art Gallery
4This was a controversy that went to arbitration. The Beaverbrook Foundation laid claim to certain paintings that Lord Beaverbrook had delivered (or caused to be delivered) to a public Gallery which he had established in his name at Fredericton in New Brunswick.
The works had entered the Gallery some four to five decades prior to the eruption of the dispute and virtually all of the persons involved were now dead. There existed a mass of conflicting documentation as to whether the delivery of the works to the Gallery amount-ed to a gift or a loan. On this distinction dependamount-ed the answer to the question whether the property in them had vested irrevocably in the Gallery or whether the Foundation was entitled, as bailor to the Gallery, to demand their delivery up. Aside from voluminous evidence as to the state of mind of Lord Beaverbrook at the time of the stocking and opening of the Gallery, the resolution of the dispute involved detailed analysis of the law concerning gifts of chattels and of the numerous defences that might be raised claims for the possession of chattels, including the triggering and suspension of limitation periods, the tributary doctrines of fraudulent concealment and discoverability, the concepts of laches, estoppel by convention and estoppel by representation, and various principles of evidence. Harsh words were spoken by the arbitrator about the conduct and motives of Lord Beaverbrook, and by the Foundation about certain allegedly prejudicial comments from the arbitrator that indicated inferable bias. The arbitrator (the Hon Peter Cory, a former justice of the Supreme Court of Canada) held in favour of the Gallery and the appeal tribunal (consisting of three retired Canadian judges) upheld his award. The ap-peal tribunal remarked on the “tsunami” of material that the Foundation had served up in order to substantiate its appeal. From the Foundation’s unsuccessful appeal on costs, we know that the Gallery’s costs alone (awarded against the Foundation) were in the region of 4.9 million Canadian dollars. One can fairly assume that (at the very least) the Foun-dation’s own costs were not significantly less than this.
C. Some observations on the foregoing cases
Even this limited comparison shows that litigation, arbitration, and mediation are not always distinct processes for the resolving of disputes. The lines of demarcation are not
4 See the analyses by JAHN INA, Loans Versus Gifts: Determining the Donor’s Intention, Lord Beaver-brook v The BeaverBeaver-brook, Art Gallery Art Antiquity and Law Vol. 12, 2007, p. 81 on the original ar-bitration and by HERMAN, Art Antiquity and Law, Vol. 16, 2011, p. 317 on the appeal.
watertight. For one thing, there are methods available beyond those three5. For another, modes of resolution exist that do not fall precisely within the established categories, for example reference to those national panels that exist to pronounce on claims regarding Holocaust-related objects6. And thirdly, litigation, arbitration, and mediation will some-times intermesh or operate in sequence. This duplication and diversity may raise ques-tions as to how far information gained in one process can be used for a later process.
Many claims against nations and cultural institutions have been successfully concluded only after undergoing two or three of those processes. Aside from Dame Mary’s dispute with the Battye Library, we have the example of Mrs Altmann and the Klimt portrait of Adele Bloch-Bauer in 20067, and of the Tasmanian Aboriginal Centre’s claim against the Natural History Museum in 20078. Both of these were launched through the medium of litigation, the Altmann claim culminating in an arbitration award at Vienna and the Tas-manian Aboriginal claim being resolved by mediation in London. The Islamic Republic of Iran’s claim to the alleged Jiroft Valley antiquities, on the other hand, was resolved by litigation on preliminary points as to the efficacy of Iranian law in 20079, followed by an agreed settlement four years later. A positive decision in favour of Iran on the principle of State ownership was achieved only after Iran appealed from an earlier negative deci-sion of Gray J. in the High Court, delivered in March 2007 after a two-day hearing in March 2006. In due course, permission was refused to appeal to the House of Lords10. The success of the first appeal and the defendant’s failure to obtain permission for a second appeal played of course a significant part in the final settlement.
Each of these controversies came with a substantial bill of costs. As we have already implied, the costs of arbitrating the Beaverbrook Foundation’s claim against the Beaver-brook Art Gallery from 2007 to 2010 may well have exceeded 10 million Canadian
5 Disputes might be resolved, for example, by resort to expert determination, early neutral evaluation, or some Government-endorsed advisory panel such as (in the United Kingdom) the Spoliation Advi-sory Panel.
6 See further PALMER NORMAN, Museums and the Holocaust, 2000, especially Chapter 8.
7 In the arbitral case Maria V. Altmann v the Republic of Austria, award of 15 January 2006. The dispute had earlier been referred to mediation by the Californian court but this attempt at a settlement failed.
8 In re An Application by the Tasmanian Aboriginal Centre Inc [2007] TASSC 5.
9 Government of the Islamic Republic of Iran v Barakat Galleries Ltd [2007] EWCA Civ 1374; see notes by GERSTENBLITH PATTY, Schultz and Barakat: Universal Recognition of National Ownership of Antiquities, Art Antiquity and Law, Vol. 14, 2009, p. 21; CHAMBERLAIN KEVIN, The Recognition and Enforcement of Foreign Cultural Heritage Laws: Iran v Barakat, Art Antiquity and Law, Vol. 13, 2008, p. 161.
10 Government of the Islamic Republic of Iran v Barakat Galleries Ltd [2007] EWHC 705 (QB).
lars. Even those disputes that invoke only one dispute resolution process can be enor-mously expensive. The costs may be grossly disproportionate to the value of the subject matter and also perhaps, in an objective sense, greater than the importance of the ques-tions at issue would justify. The loss to the parties, moreover, may exceed the merely financial.
III. The perils and drawbacks of litigation
No case illustrates better than Neave v Neave11 the almost surreal process by which liti-gation can take on a life of its own, luring the parties into a spiralling pit of economic waste and public humiliation, and driving judges into paroxysms of disbelief. The peril is particularly pronounced, perhaps, where people turn to litigation as a means of pursuing and escalating family disputes. In Neave v Neave a long-festering animosity between a mother and son erupted in the removal from land occupied by the mother of a number of derelict cars formerly collected by the son’s now-deceased father. The mother sued for trespass and other wrongs, and the son vigorously defended. In a baffled and imploring judgment Holland J pointed to the conflict between a self-indulgent use of the legal system and the overriding objective “to do justice between the parties” that the modern Civil Procedure Rules now enjoin upon courts, advisers and parties:
“It is plainly difficult to reconcile this litigation with that objective. Granted that the
‘raid’ of March 1998 should never have taken place; granted that the five vehicles should never have been removed; and granted that Mrs Neave has proved ownership with re-spect to one more vehicle, this litigation in so far as it goes beyond a simple claim in trespass is a nonsense deserving of no significant allotment of the Court's resources, that is, of public expenditure. Turn back to photograph 1290: the object of the litigation is to restore that status quo of derelict hibernation, presumably with the additional vehicle SH 294 dumped somewhere else, all seemingly out of sentiment and pique. The essential feature is not an interest in historic vehicles suddenly kindled in mother and son after thirty years of inactivity, but another chapter in an appalling family rift giving rise to the mutual desire to hurt and wound that was distressingly obvious in the course of the hear-ing before me and which had no doubt been a dominant feature of the protracted county court hearing. It would be nice if almost certainly naive to think that this litigation has helped the Neave family; my guess is that in addition to absorbing vast amounts of its precious funds it has served irretrievably to perpetuate the rift. Let us hope that I am wrong in this but if I am proved to be right then we have this added dimension: the pub-lic expenditure has been not only to no avail but indeed counter productive. This
11 [2002] EWHC 784 (QB); on appeal [2002] EWCA Civ 1193.
watertight. For one thing, there are methods available beyond those three5. For another, modes of resolution exist that do not fall precisely within the established categories, for example reference to those national panels that exist to pronounce on claims regarding Holocaust-related objects6. And thirdly, litigation, arbitration, and mediation will some-times intermesh or operate in sequence. This duplication and diversity may raise ques-tions as to how far information gained in one process can be used for a later process.
Many claims against nations and cultural institutions have been successfully concluded only after undergoing two or three of those processes. Aside from Dame Mary’s dispute with the Battye Library, we have the example of Mrs Altmann and the Klimt portrait of Adele Bloch-Bauer in 20067, and of the Tasmanian Aboriginal Centre’s claim against the Natural History Museum in 20078. Both of these were launched through the medium of litigation, the Altmann claim culminating in an arbitration award at Vienna and the Tas-manian Aboriginal claim being resolved by mediation in London. The Islamic Republic of Iran’s claim to the alleged Jiroft Valley antiquities, on the other hand, was resolved by litigation on preliminary points as to the efficacy of Iranian law in 20079, followed by an agreed settlement four years later. A positive decision in favour of Iran on the principle of State ownership was achieved only after Iran appealed from an earlier negative deci-sion of Gray J. in the High Court, delivered in March 2007 after a two-day hearing in March 2006. In due course, permission was refused to appeal to the House of Lords10. The success of the first appeal and the defendant’s failure to obtain permission for a second appeal played of course a significant part in the final settlement.
Each of these controversies came with a substantial bill of costs. As we have already implied, the costs of arbitrating the Beaverbrook Foundation’s claim against the Beaver-brook Art Gallery from 2007 to 2010 may well have exceeded 10 million Canadian
5 Disputes might be resolved, for example, by resort to expert determination, early neutral evaluation, or some Government-endorsed advisory panel such as (in the United Kingdom) the Spoliation Advi-sory Panel.
6 See further PALMER NORMAN, Museums and the Holocaust, 2000, especially Chapter 8.
7 In the arbitral case Maria V. Altmann v the Republic of Austria, award of 15 January 2006. The dispute had earlier been referred to mediation by the Californian court but this attempt at a settlement failed.
8 In re An Application by the Tasmanian Aboriginal Centre Inc [2007] TASSC 5.
9 Government of the Islamic Republic of Iran v Barakat Galleries Ltd [2007] EWCA Civ 1374; see notes by GERSTENBLITH PATTY, Schultz and Barakat: Universal Recognition of National Ownership of Antiquities, Art Antiquity and Law, Vol. 14, 2009, p. 21; CHAMBERLAIN KEVIN, The Recognition and Enforcement of Foreign Cultural Heritage Laws: Iran v Barakat, Art Antiquity and Law, Vol. 13, 2008, p. 161.
10 Government of the Islamic Republic of Iran v Barakat Galleries Ltd [2007] EWHC 705 (QB).
lars. Even those disputes that invoke only one dispute resolution process can be enor-mously expensive. The costs may be grossly disproportionate to the value of the subject matter and also perhaps, in an objective sense, greater than the importance of the ques-tions at issue would justify. The loss to the parties, moreover, may exceed the merely financial.
III. The perils and drawbacks of litigation
No case illustrates better than Neave v Neave11 the almost surreal process by which liti-gation can take on a life of its own, luring the parties into a spiralling pit of economic waste and public humiliation, and driving judges into paroxysms of disbelief. The peril is particularly pronounced, perhaps, where people turn to litigation as a means of pursuing and escalating family disputes. In Neave v Neave a long-festering animosity between a mother and son erupted in the removal from land occupied by the mother of a number of derelict cars formerly collected by the son’s now-deceased father. The mother sued for trespass and other wrongs, and the son vigorously defended. In a baffled and imploring judgment Holland J pointed to the conflict between a self-indulgent use of the legal system and the overriding objective “to do justice between the parties” that the modern Civil Procedure Rules now enjoin upon courts, advisers and parties:
“It is plainly difficult to reconcile this litigation with that objective. Granted that the
‘raid’ of March 1998 should never have taken place; granted that the five vehicles should never have been removed; and granted that Mrs Neave has proved ownership with re-spect to one more vehicle, this litigation in so far as it goes beyond a simple claim in trespass is a nonsense deserving of no significant allotment of the Court's resources, that is, of public expenditure. Turn back to photograph 1290: the object of the litigation is to restore that status quo of derelict hibernation, presumably with the additional vehicle SH 294 dumped somewhere else, all seemingly out of sentiment and pique. The essential feature is not an interest in historic vehicles suddenly kindled in mother and son after thirty years of inactivity, but another chapter in an appalling family rift giving rise to the mutual desire to hurt and wound that was distressingly obvious in the course of the hear-ing before me and which had no doubt been a dominant feature of the protracted county court hearing. It would be nice if almost certainly naive to think that this litigation has
‘raid’ of March 1998 should never have taken place; granted that the five vehicles should never have been removed; and granted that Mrs Neave has proved ownership with re-spect to one more vehicle, this litigation in so far as it goes beyond a simple claim in trespass is a nonsense deserving of no significant allotment of the Court's resources, that is, of public expenditure. Turn back to photograph 1290: the object of the litigation is to restore that status quo of derelict hibernation, presumably with the additional vehicle SH 294 dumped somewhere else, all seemingly out of sentiment and pique. The essential feature is not an interest in historic vehicles suddenly kindled in mother and son after thirty years of inactivity, but another chapter in an appalling family rift giving rise to the mutual desire to hurt and wound that was distressingly obvious in the course of the hear-ing before me and which had no doubt been a dominant feature of the protracted county court hearing. It would be nice if almost certainly naive to think that this litigation has