3 - BACKGROUND: Butte de Warlencourt

Butte de Warlencourt

Background

Many members may now be aware of the decision to divest The Western Front Association of the Butte de Warlencourt. For those that are not aware, the Butte has been sold to Bob Paterson, a former Chairman of the Association, and this was announced on the WFA’s website on Sunday 28 October. The purpose of this communication is to illuminate the rationale and background to the sale of the Butte. The trustees apologise for the confusion its lack of communication has caused and it hopes that this communiqué will clarify the situation.

The Executive Committee will be standing down at or prior to the AGM but are remaining to that date in order to manage a smooth transition to a new group of trustees.

Because of the controversy, Bob Paterson has offered to sell the Butte back to the Association, however the current trustees will not be willing to take the Butte back into WFA ownership as none of the issues which have led to its sale have been resolved. A new committee may wish to examine taking the Butte back into WFA ownership and an advisory working party will be established for this purpose.

The WFA acquired the Butte in 1990. In the intervening years, it has been occasionally improved when willing volunteers were able to undertake work on it.

A major improvement to the upkeep of the Butte occurred when Bob Paterson joined the Executive Committee as European officer in 2013. It was apparent that his number one priority was to undertake improvements to the Butte.

Bob lead the project to restore the Butte. Apart from actually working on the site with the late David Easton, Bob organised massive improvements to the walkway, handrails and car park. Attracting sponsorship, benches were put in situ as was a WFA notice board. A massive project to cut back the vegetation on the Butte was also successfully completed. This took a large amount of time and energy, but the results were very positive. These changes helped make the Butte much more accessible to the public and made it an excellent spot for battlefield tours.

Bob Paterson served as chairman of the WFA between November 2014 and July 2016, resigning after a period of notice. He ceased to have any input into the running of the association after his resignation. Following Bob’s departure, arrangements for the upkeep and future development of the Butte began to be increasingly difficult.

During 2018 the WFA’s trustees became concerned about the risk to both the WFA and trustees of holding the Butte. The WFA’s legal trustee pointed out that even though insurance was in place, should there be a serious accident or worse on the Butte, and even though there was warning signage in place, there was a very real danger to the assets of the WFA and of personal liability of the trustees.

No one knows for certain what lies under the surface of the Butte and it probably contains unexploded munitions (in 2016 alone, 25 tonnes of live ordnance were removed from the area). If there were, for example, a serious injury or fatality at the Butte, the WFA and the trustees might well be the subject of a personal injury claim and would then have to look to the insurance policy. Complex questions of occupier (i.e. the WFA or trustee) liability would be raised. Even if the policy which was in place provided adequate cover, this would be traumatic for the trustees and a claim could last for years. Any liability not covered by the insurance would fall on the WFA and personally and financially on the trustees. Following from this, the trustees became increasingly concerned about protecting the assets of the WFA, their own liability positions, and the difficulties for any future trustees.

The position is further complicated by the fact that the Association is an unincorporated association. Its assets are owned under English law by the trustees from time to time and the trustees have significant responsibilities and personal liability. French law does not acknowledge English trust principles and the Butte has historically been owned by ‘The Western Front Association’. The insurance policy has mirrored this. However, ‘The Western Front Association’ is not a legal entity and this has complicated the insurance position because there is an ambiguity as to the nature of the “insurable interest”.

The problems highlighted by the legal trustee resulted in a review of the of the underlying ownership documents. The trust document revealed that in English law the ownership of the Butte was held on behalf of the WFA by three committee members, none of whom were current trustees.

Legal advice - from solicitors specialising in French land law - was sought and they confirmed that work was needed to correct the position and that this could cost in the region of £10,000, the implication was that this may well prejudice any claim that had to be made on the insurance policy.

The trustees considered that a possible solution could be to transfer the ownership of the Butte to a third party. This had been attempted on at least two previous occasions. The first attempt was in the late 1990s. This involved negotiations with the Historial de la Grande Guerre in Péronne and ended in failure. Again, in 2010, moves to sell the Butte to the Département du Nord had been attempted, but after the French had initially been in favour, this did not progress.

The Trustees therefore found themselves in a difficult situation where:

1) In an increasingly litigious environment trustees were exposed to being personally pursued in the event of an accident. The concern of the trustees was not the prospect of owning the Butte without insurance but it was the prospect of continuing to own the Butte even with insurance.

2) There was an issue that needed resolving with the deeds that would be expensive to undertake and this would not mitigate the problems of trustee liability.

Trustees expressed concern at this situation and some stated that they did not wish to remain as trustees if there was a chance they could lose their homes in a personal injury case.

It was at this stage that a statement by Bob Paterson was recalled when he had said he would take the Butte on should the WFA ever wish to divest itself of it. Upon reflection, this seemed to be well worth considering because Bob met key criteria:

1) Bob Paterson has a deep passion for the Butte, having spent much time and energy on restoring it whilst a WFA trustee

2) If he took ownership the WFA would not have to “correct” the title deeds,

3) Continued public access could be maintained, and

4) The risk to the assets of the WFA and individual trustees would be removed, but the trustees hoped that some form of ongoing collaboration could maintain the connection between the WFA and the Butte.

Contact was made with Bob Paterson and it was established that in principle he would be interested in acquiring the Butte. Discussions about its long-term preservation took place including the need to ensure access and to ensure long term future.

The possibility of advertising the sale more generally was considered, but in view of the emotional connection with British losses in 1916, it was concluded that it would be better to transfer ownership to a known party who was passionate about its history and who had already evidenced a significant commitment to its preservation.

The matter was formally raised as an agenda item at the Executive Meeting on 28 July. Although a number of trustees were not present, the meeting was quorate and was correctly convened. Unfortunately, some details of what were agreed were inadequately or inaccurately noted within the minutes. These would have been corrected prior to the next EC meeting.

The resolution was proposed that the Legal Trustee be instructed to pursue with French lawyers the sale of the Butte as soon as reasonably practicable. This was voted on and was agreed by five of the six trustees present. One trustee who spoke passionately against the proposal was sympathetically listened to but ended up abstaining rather than voting against the resolution. Trustees who were not present subsequently commented on the decision and only one was against the proposal, all others concurred.

The trustees were empowered to make the decision to sell the Butte because it is tasked under the WFA’s constitution with acting in the best interests of the WFA and have the responsibility for making management decisions. The trustees felt that the sale was the best course of action based on the information available and legal advice given.

With the benefit of hindsight, the trustees regret they did not raise the decision with members of the Association, however it was a decision that the trustees felt they had to take. Had a question been raised to the membership, it is possible that there would have been general agreement to the transfer or members may have voiced opposition to it. If members feel that there should have been some sort of vote, then we apologise for not undertaking this. The fact remains that had members expressed a desire to retain the Butte, both the WFA and the trustees would remain “at risk” with the likelihood of trustee resignations given the possibility of being personally liable should an accident occur.

To try to mitigate the risk while the transaction was worked on, a review of the WFA’s insurance policy was undertaken and an increased level of cover requested. The French insurance company not only refused to increase cover but stated that the existing cover could not continue as the WFA does not have a permanent establishment in France.

The trustees now faced a real problem. One option at this stage was to try to close the site and wait until we got confirmation that insurance cover was in place. This was considered but the trustees would still be liable if a person was injured or hurt on the site even though it was closed. Also, maintaining its security would have required regular checks and no EC member was based in France.

In the event, the French legalities of the transfer were completed at the end of October. Even though the Armistice Anniversary was approaching the trustees felt they should announce the sale as soon as practicable.

An article which appeared on the WFA website and in an edition of ‘Trenchlines’ should have explained that the Butte was being sold “with regret” (which is the case) but instead was written as a “good news” story. This was a serious error of judgement and is something that should not have happened.

The social media reaction to the story has been overwhelming. Much of the commentary has been inaccurate, and many members have supported the decision, but this has not been widely reported. Four trustees resigned, for different reasons and various newspapers have picked up the story.

Because of the overwhelmingly negative reaction

1) Bob Paterson has expressed a wish that the Butte reverts to the WFA’s ownership

2) the existing trustees will step down once suitable transition arrangements have been made for the election of replacements.

This has been a very sad episode for all concerned. What the trustees hoped it would achieve was a sensible plan to remove risk from the Association and the trustees individually, and to find a worthy steward for the Butte, and we regret this has caused so much controversy. All trustees acted from the best of intentions and with what they believed to be in the best interests of the Association.

It is therefore important that new trustees are now appointed. These new trustees will need to consider the practical, legal and insurance implications of owning the Butte and they may conclude that they wish to repurchase the Butte from Bob Paterson. He has said that he would be willing to reverse the transaction but that would not resolve the difficult insurance issues for the WFA or personal risk to its future trustees.

Members of the WFA can apply for trustee nomination forms by contacting either the Honorary Secretary or the WFA office. These should be received by the Honorary Secretary by 20 January 2019. It is likely that the existing trustees will stand down as soon as possible but allowing for an orderly transition. This will occur either before or at the AGM.

Published by the Executive Committee of The Western Front Association 12th November 2018

Read More:

1: The WFA Trustees plan for the future

2: Letter to WFA Members (published with Stand To! 113)