This article is taken from Paul Howcroft’s blog Art Law London.
My daily walks between station and office take me past the Warburg Institute, housed in a drab 1950s building in Woburn Square. My knowledge of the Institute was until now limited to a vague recollection that the disgraced art historian and Soviet spy Sir Anthony Blunt had the title of Warburg Institute Professor. I could not find that on the Institute‘s website, but perhaps it would prefer to be known for other things. That should now be helped, at least in the English legal world, by the judgment in University of London v John Prag and HM Attorney General  EWHC 3564 (Ch).
The first defendant, John Prag, is Professor Emeritus at Manchester University, a member of the Advisory Council of the Warburg Institute and a descendant of its founder, Professor Aby Warburg. In effect, the case was a dispute between the University of London and the Institute, and it was about how the 1944 trust deed, which founded the Institute, should be construed. Ten years earlier, Aby had moved, with his art research institute and its material, to London from Hamburg, after the Nazis came to power.
The 1944 trust deed was entered into between the Warburg family, who were known for banking, and the University. The deed related to a library of books and photographs which was given to the University. In return, the University was required to house the library, which now has 350,000 volumes, in a suitable building and “keep it adequately equipped and staffed as an independent unit”. The background to the recent dispute was that the Institute believed that the University wished to integrate it into its other library services.
The court held that the trust was designed to secure the future of the Institute and did not just apply to the 1944 collection, but also subsequent additions and intellectual property rights. It had to continue as an independent and living institution and could not be integrated into the University. The building was not part of the trust, but had to be funded by the University. Also, the Institute could not be debited by way of a share of the costs of University-wide services, but only for actual cost.
The case illustrates what often happens. What was done long ago with the best of intentions, and most welcome at the time, can become unsuitable or a cause of friction for future generations whose priorities and motives are inevitably different.
Paul Howcroft, Partner, Fladgate LLP (firstname.lastname@example.org)