Seventeenth century Chinese porcelain is not the obvious starting point for an important case on ownership of chattels. However, it was the context for the Chancery Division to consider the effect of s 188 of the Law of Property Act 1925 in Butler v Butler  EWHC 1793 (Ch)
(HHJ Simon Barker QC, sitting as a judge of the High Court). It provides a very useful examination of how this section works.
The two claimants and two defendants were siblings. Their late mother amassed a collection of seventeenth century Chinese porcelain ('pots') from the transitional period between the Ming and Qing imperial dynasty periods, known as the Michael Butler collection ('MBC'). In 1987, the great majority of the MBC was gifted to the parties by deed, together with title to an outbuilding used as a museum. The gifted collection was known as the Butler Family collection ('BFC'). There were further smaller gifts of pots between 1989 and 1993.
In 2012, and acting on legal advice, the parties' father and the defendants (but not the claimants) entered into a partnership agreement to own the remainder of the MBC, and to merchandise it and possibly some of the BFC.
Thereafter, the father executed a will, with the defendants as executors. The defendants were to inherit a property each, together with its contents, including some pots. The defendants were also to be trustees of a discretionary trust holding their father’s share of the partnership. In a letter of wishes, the father expressed a desire that the BFC be kept intact for a decade and, if so, that the partnership be dissolved and his interest divided equally between the parties. Alternatively, if the BFC was broken up or sold at the instance of the claimants, his personal collection should go to his daughter, the first defendant. The residue of his estate was to be divided equally between the claimants and the first defendant, subject to a specific gift to each.
Ultimately, the parties’ father died. At that time, in addition to the BFC, the partnership (being the defendants) owned 208 pots, 36 pots remained in the father’s estate or under his will trust, and the second defendant owned 85. Consequently, either or both defendants owned outside the estate or had control over 354 pots.
Almost immediately, the parties began to disagree about what should happen to the BFC. The claimants wanted it to be distributed. The defendants wanted it kept intact and made available for scholarly study and exhibition, with certain items being exploited commercially by merchandising.
The claimants issued a claim under CPR Part 8 seeking an order for division on the basis that the siblings took turns selecting a pot from the BFC until it was exhausted, thereby converting their joint interest in the BFC into absolute interests in the selected pots.
The defendants disagreed. First, they considered that the claimants had no standing to bring the claims because s 188 LPA did not apply. Secondly, the BFC should remain a collection. Finally, as an alternative, they (ie the second defendant) should be permitted to buy out their siblings’ interest in (part of) the BFC on specified terms.
Section 188 of the Law of Property Act 1925
Section 188 LPA 1925 states:
'Power to direct division of chattels
(1) Where any chattels belong to persons in undivided shares, the persons interested in a moiety or upwards may apply to the court for an order for division of the chattels or any of them, according to a valuation or otherwise, and the court may make such order and give any consequential directions as it thinks fit.
(2) The county court has jurisdiction under this section where the amount or value of the property or of the interest in the property which is to be dealt with in the court does not exceed £30,000.'
Standing: interest in a moiety or upwards
The starting point is whether an applicant for an order under s 188 is interested in ‘a moiety or upwards’. But what is a ‘moiety’? There was no dispute that in the context of s 188, a ‘moiety’ simply means ‘half share’.
The first stage of the defendants’ defence was that the claimants had no standing to bring the claim, because they did not have ‘a moiety or upwards’. The court disagreed. This was for essentially evidential and factual reasons.