WHO, ME? DON T SUE ME, I ONLY WORK HERE AS TARGETS IN CULTURAL ARTEFACT CLAIMS. Acknowledging the public interest in national treasures

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1 WHO, ME? OR DON T SUE ME, I ONLY WORK HERE KEEPERS, CURATORS AND MUSEUM REGISTRARS AS TARGETS IN CULTURAL ARTEFACT CLAIMS The backdrop of a changing world: Increasing modern emphasis on: Acknowledging the public interest in national treasures Acknowledging the role of museum staff in honouring that interest Public interest and international co-operation: Government of the Islamic Republic of Iran v Barakat Galleries Ltd [2009] QB 22 The unlawful excavation and trafficking of antiquities has become very big business. In 1970 the signatories to the UNESCO Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property (ratified by the United Kingdom in 2002) recognised not only that it was incumbent on every State to protect the cultural property within its borders against the dangers of theft, clandestine excavation and illicit export, but also that it was essential for every State to become alive to the moral obligations to respect the cultural heritage of all nations and that the protection of cultural heritage could only be effective if organised both nationally and internationally among States working in close co-operation (recitals 3, 4 and 7). In the Supreme Court of Ireland, Finlay CJ said that it was universally accepted that one of the most important national assets belonging to the people is their heritage and the objects which constituted keys to their ancient history; and that a necessary ingredient of sovereignty in a modern State was and should be an ownership by the State of objects which constitute antiquities of importance which were discovered and which had no known owner: Webb v. Ireland [1988] I.R. 353 at 383.

2 Voluntary responsibilities of museum staff Legitimacy Statements by Museum Officers as Preliminaries to Acquisitions by Purchase, Gift or Otherwise CURATOR STATEMENT I certify that I have made reasonable enquiries in respect of this acquisition, a summary of which is given below. I can see no reason in the DCMS guidelines for combating illicit trade (October 2005), or in the British Museum s own acquisition policy, not to make this acquisition. Signature: Date: Potential sources of claims against museum personnel Bailor (Lender) or Vendor against Individual: You lured me into an unsafe transaction that undermined my property interests Third Party against Individual: You misdealt in my property without my consent Employing institution against Individual Employee: You didn t do your job and we lost out either in liability to a third party or in lost opportunities in-house Modern Historical Roots of Personal Liability: Civil Law Claims against Curators and Other Museum Personnel Litigated Claims from the Law Reports Misattribution Shuman and others v Coober Pedy Tours Pty Ltd (1994) unreported 14 th February (Supreme Court, South Australia, Full Court) Breach of Bailment Kamidian v Holt [2008] EWHC 1483 (Comm) Potential Claims from Press Reports

3 The British Library and the Tyldesley diary The Wookey Hollow Museum and the canine security guard Bailment: museum staff and individual curators as bailees The servant principle Ability to sue Hopkins v Gibson (1805) 2 Smith 2021 Liability for safekeeping Superlux v Plaisted [1958] CLY 195 The independent curator as bailee Kamidian v Holt [2008] EWHC 1483 (Comm) Liability for deviation? The Tyldesley Diary Negligence by senior staff Applicable to employees? Fairline Shipping Corp. Ltd v. Adamson [1975] Q.B. 180, Kerr J. Conversion: independent liability of directors and employees MCC Proceeds Inc v Lehman Bros International (Europe) [1998] 4 All ER 675 at 686, CA, per Mummery LJ Conversion is a common law action, tortious in form, imposing strict liability for a wrongful interference with the right to possession of a chattel. It consists of any act of wilful interference, without lawful justification, with any chattel in any manner inconsistent with the rights of another, whereby that other is deprived of the use and possession of it. Conversion can be committed by:

4 Buying or selling, giving or receiving, pledging, leasing, maybe merely lending and borrowing Refusal to deliver up on demand Destruction Severer forms of misuse Exposure to risk, at least where that risk materialises Loss or destruction in breach of duty as a bailee (by statute) A strict liability tort with harsh consequences: innocence or due diligence is normally no defence One harsh consequence is that an employee can be liable in conversion for an act done for the employer s benefit Stephens v Elwall (1815) 4 M & S 259; 105 ER 830 The clerk acted under an unavoidable ignorance and for his master's benefit when he sent the goods to his master [in America]; but nevertheless his acts may amount to a conversion; for a person is guilty of a conversion who intermeddles with my property and disposes of it, and it is no answer that he acted under authority from another, who had himself no authority to dispose of it. The court is governed by the principle of law and not by the hardship of any particular case. International Factors Ltd v Rodriguez [1979] QB 351 On the findings of the learned judge the defendant was personally responsible for the payment of each of the four cheques to which this case relates into the company's account, and in those circumstances the right conclusion appears to me to be that it was the defendant who misapplied the cheque and who is liable for conversion. Another harsh consequence is that where there are two possible defendants a claimant owes no obligation to one defendant to proceed concurrently or alternatively against the other. Advanced Industrial Technology Corpn Ltd v Bond St Jewellers Ltd and Condrup [2006] EWCA 923 at para 22

5 Sole director of defunct company that gave a necklace by way of pledge as security for a loan held personally liable in the tort of deceit for failing to make it plain to the pledge that his company had neither title to the jewellery not the authority of the true owner to pledge it. Directors who put their pocket book on the table Ojjeh v Galerie Moderne Ltd (1998) unreported 14th December, QBD, Buckley J I reiterate my absolute belief that this is a real discovery. They are correct in every way, ie authentic, genuine, undamaged, well-defined drop dead sexy, to use the vernacular! All joking apart, I have no hesitation in staking my 20 year reputation as a specialist dealer on this collection an assurance I would not give lightly. Held, the director was undertaking personal liability for what he was saying. This is true for claims in fraud as much as for claims in conversion Standard Chartered Bank v Pakistan National Shipping Corporation [2000] 3 WLR 1547 at 1554 at paras 20, 22 per Lord Hoffmann Mr Mehra says, and the Court of Appeal accepted, that he committed no deceit because he made the representation on behalf of Oakprime and it was relied upon as a representation [made] by Oakprime. That is true but seems to me irrelevant. Mr Mehra made a fraudulent misrepresentation intending SCB to rely upon it and SCB did rely upon it. The fact that by virtue of the law of agency his representation and the knowledge with which he made it would also be attributed to Oakprime would be of interest in an action against Oakprime. But that cannot detract from the fact that they were his representation and his knowledge. He was the only human being involved in making the representation to SCB (apart from administrative assistance like someone to type the letter and carry the papers round to the bank). It is true that SCB relied upon Mr Mehra's representation being attributable to Oakprime because it was the beneficiary under the credit. But they also relied upon it being Mr Mehra's representation, because otherwise there could have been

6 no representation and no attribution. Mr Mehra was not being sued for the company's tort. He was being sued for his own tort and all the elements of that tort were proved against him. Having put the question the way he did, Evans LJ answered it by saying that the fact that Mr Mehra was a director did not in itself make him liable. That of course is true. He is liable not because he was a director but because he committed a fraud." International Factors v Rodriguez (above) Counsel for the defendant has suggested that he could only be made liable in conversion if the company itself was guilty of conversion and so he, as an officer of the company, could be made vicariously responsible for conversion. In my view that is the wrong approach the cheque was physically in the possession or under the control of the defendant, it was he who applied it wrongly in a manner in conflict with the right of the plaintiffs, and in my judgment it was he who was guilty of conversion as a primary participant and not merely as a secondary participant in the transaction. Haugesund Kommune v Depfa ACS Bank [2010] 1 Lloyd s Rep 323 at p 329, para 22 The principle stated by Harman LJ [in The Liverpool 2 [1963] P 64] at page 83 is that no duty rests on a claimant at the demand of a tortfeasor to satisfy part of the damages by resorting to another tortfeasor (sc responsible for the same loss still less by resorting to an innocent party made liable merely by statute. This liberty to select the individual defendant: - has nothing to do with the duty of a claimant to exercise reasonable precautions to mitigate its loss; and - similarly relieves the claimant from any duty to pursue an alternative defendant under the law of unjust enrichment (as opposed to tort). Are the normal defences to conversion, as well as the initial liabilities in conversion, available to employee defendant? Marcq v Christie Manson & Woods Ltd [2004] QB 286 Bailee may be non-liable for conversion where he/she returns goods to bailor without notice of valid third party claim.

7 Does an employee have similar defences? Criminal liability of Curators and Other Museum Personnel Dealing in Cultural Objects (Offences) Act 2003 Offence to deal in tainted cultural objects Iraq (United Nations Sanctions) Regulations 2003 Offence to import/export, deal in or be in possession of Iraqi cultural objects 2003 Order, Article 20(6): A relevant officer of a body corporate that has committed an offence under the 2003 Order will be personally guilty of an offence under the Order if the commission of the offence by the body corporate was attributable to the neglect of the relevant officer, or was committed with that officer s consent or connivance. By the same provision, a relevant officer for this purpose is: any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity. Before the enactment of the 2003 Order, the trade in goods from Iraq was regulated by the Iraq and Kuwait (United Nations Sanctions) Order 1990, SI 1990 No 1651, which the 2003 Order revoked. In common with the 2003 Order, the 1990 Order contained a special provision imposing criminal liability on certain senior officers of corporate bodies involved in the commission of an offence under the Order: Article 8(2) of the 1990 Order; see Article 20(6) of the 2003 Order, above. Treasure Act 1996 ss 8 and 8A (latter not yet in force) Duty to report on finders and (prospectively) acquirers of treasure Nothing specific about employees Areas where employee error can lead to employer liability or otherwise prejudice employer s legal position Limitation periods Schwarzschild v Harrods Ltd (2007)

8 Terms of Acceptance Myers Stores Pty Ltd v Jovanovic [2004] VSC 478 Cataloguing and title records Nolan v Nolan (2003) 10 VR 626 Beaverbrook Foundation v Beaverbrook Art Gallery (2009) Knock-on liability of employee to employer for defaults under contract of employment Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 Morris v Ford Motor Co Ltd [1973] QB 792 Janata Bank v Ahmed [1981] ICR 791, CA Immunising the Museum Officer in Loan-related Claims Tribunals Courts and Enforcement Act 2006 Part 6 No immunity from damages claims Thus, no such immunity for museum employees Cf an overseas proposal: We propose that the statutory immunity from liability to pay damages that is contemplated as operating in favour of a museum should also extend with appropriate adjustments to any employee, agent or independent contractor of a museum that is the subject of the immunity, where that employee, agent or independent contractor is acting in the course of employment by the museum, or in actual or purported performance of instructions emanating from the museum.