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Wardens incur legal costs after unauthorised sale

by
21 July 2011

by Shiranikha Herbert, Legal Correspondent

A SERIOUS situation had been created by the illegal actions of the churchwardens of St Ebbe’s with Holy Trinity and St Peter Le Bailey, Oxford, when they put up for sale two ancient chests without first obtaining a faculty, Chancellor Rupert Bursell said in the Oxford Consistory Court last month. In the temporal sphere, churches were also the trustees of much of the nation’s fine heritage — a trusteeship that was exercised through the incumbent and churchwardens, and in that, there had been a serious lapse at St Ebbe’s.

In the past, the chests had been located in the church. One was an oak chest that was beneath the pulpit until the 1990s, when it was moved to a room at the base of the church tower because the church “could not find any use for it”, a churchwarden told the court.

The other was an elm chest that had, for many years, been stored behind the organ, but, “as no use could be found for it in the main body of the church”, it was moved to a room adjacent to the rectory, and then to the rectory garage.

Neither of the changes of location was authorised by a faculty, as they should have been, and each change was due to the failure to appreciate the importance of the chests. No one took any particular interest in them, and no objections were raised when the chests were moved and stored away.

In July 2010, the PCC unanimously agreed to sell the chests, and the auctioneers Mallams Ltd were instructed to sell two “oak coffers” by auction. The “coffers” were illustrated in a Mallams sale catalogue. One was described as “an early English, perhaps 17th-century, oak, lead-lined chest”. Mallams valued it at £250 to £350. It fetched £3800 at auction, and has since been sold on, and was now in Europe.

The other chest was described as “an early English ecclesiastical, perhaps 15th- or 16th-century elm long chest . . . fitted with a safe box”, which suggested that it was used for “money or valuable liturgical items”. It was valued by Mallams at £500 to £750, but was sold for £15,500.

The elm coffer was sold to a buyer who then sold it to the under-bidder, Period Oak, of Petworth, whose online sales archive described it as historically important and as being from around 1250. It stated that to “actually own a piece of English furniture from this period is beyond belief”, and that it came from a “small group of similar chests which reside in a handful of cathedrals and churches in the south-east of England, and are probably the earliest surviving examples of English medieval furniture in existence. . . It is ex­tremely unusual for one of these chests to come on to the open market.”

The elm chest had been passed on to “an American collector wishing to build a collection within the UK”.

Once it was learned that the chests had raised such large sums, the parish found that the chests were mentioned in the 1939 Oxford Inventory of the Royal Commission on Historical Monuments. The Rector contacted the Archdeacon, who suggested that the parish should consult the diocesan registrar and seek a retrospective faculty “to confirm authority for the sale or purported sale” of the chests.

In November 2010, the diocesan registrar wrote to Mallams pointing out that, as no faculty had been obtained, no ownership of the chests had passed to the purported purchasers. On the Chancellor’s instructions, the registrar also wrote to Mallams, warning them that it was intended to add them as a party to the faculty proceedings. Mallams objected, and asked the Chancellor to “revisit the position”. The churchwardens then applied to withdraw their petition, as it would be difficult for the court to reach a decision without being able to contact the present possessors of the chests.

The Chancellor said that auctioneers, antique dealers, and those who facilitated the disposal of church goods, who must be taken to know the existence of the faculty juris­diction, had the responsibility of making checks to satisfy themselves that those respons­ible for selling the goods in the first place had authority to do so.

The churchwardens told the court that, from a practical point of view, they did not wish for the chests to be returned to the church, as they were of no practical use and no one had expressed any particular attachment to them. The Chancellor said that it was of the utmost importance that heritage was con­served, whether or not it was perceived to be of “practical use”, and whether or not any person had a “particular attachment” to it.

The Chancellor also had to consider whether, in addition to the expression of the court’s disapproval, the matter should be reported to the Bishop so that he might, in turn, informally censure the churchwardens over their conduct. But “in the light of the churchwardens’ extreme regret and ongoing embarrassment”, it was unnecessary to do so. They had no doubt “learned a very salutary lesson”, and the burden of the payment of costs would inevitably fall on them.

In the light of that decision on the church­wardens, the Chancellor also decided that the court should not request the Arch­deacon to institute a complaint of misconduct against the incumbent under the Clergy Disciplinary Measure 2003.

The Chancellor permitted the withdrawal of the petition, but on stringent conditions. He ordered that the incumbent, PCC, and churchwardens “continue to pursue all reasonable avenues” to identify the location and the present possessors of the two chests, and “formally report to the court such attempts that they have made to make such identifications”.

Until further order of the court, the moneys received for the chests are to be invested at the direction of the diocesan registrar. The churchwardens were ordered to pay the costs of the court proceedings.

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