17 August 2015

Thwaytes v Sotheby's

Judgment was handed down on 16 January 2015 in the Chancery case of Thwaytes v Sotheby's, in which Sotheby's was held not to have been negligent in its assessment of the painting The Cardsharps, consigned to them in 2006 by the then owner, Lancelot Thwaytes. The painting is acknowledged to be a copy of an original by Caravaggio, now on view in the Kimbell Museum in Texas.

Sotheby’s catalogued the painting as by a ‘follower’ of Caravaggio, meaning that, in their opinion, the work was by a painter working in Caravaggio’s style, contemporary or nearly contemporary, but not necessarily a pupil. At auction in 2006 the painting achieved a hammer price of £42,000, slightly over the pre-auction high estimate of £30,000.

A year later, the purchaser, renowned Caravaggio scholar Sir Denis Mahon, announced that the painting was an autograph original by Caravaggio himself and, as such, worth ‘up to £50 million’.

Mr Thwaytes, understandably aggrieved, brought an action against Sotheby’s for both breach of contract and negligence. He alleged that the Sotheby’s experts did not adequately research the painting and failed to notice certain features of it that should have indicated to them that it had ‘Caravaggio potential’. He alleged that if Sotheby’s had performed their duties to him properly, he could either have sold the painting for more money or might have decided not to sell it at all. He did not, significantly, attempt to claim that the painting was an autograph original by Caravaggio, simply that if Sotheby’s had investigated it properly then he could have achieved a higher price for it at auction.

Mr Thwaytes also contended that the scope of Sotheby's duty of care was increased by the fact that he had initially asked for the painting to be researched, which ought to have put Sotheby’s on special enquiry as to its quality and importance.

In dismissing the claims, Mrs Justice Rose held that the duty undertaken by Sotheby’s was merely the duty that arises generally when a painting is consigned to a leading international auction house and that there were no special features in the case to extend that duty or make it more onerous. Sotheby’s was not negligent in its assessment of the painting; it was entitled to rely on the connoisseurship and expertise of its specialists who were ‘certain’ that the painting was a period copy and not by Caravaggio. Mrs Justice Rose also found that, even if Sotheby’s had taken into account Sir Denis’ positive opinion, this would have been outweighed by the negative opinions of other scholars.

There were some rather fanciful elements to the case brought by Mr Thwaytes: for example, his claim that, if Sotheby’s had obtained and published in the catalogue certain scholarly opinions (in particular from Sir Denis Mahon), the painting would have fetched a higher price at auction. Sotheby’s argued that their duty to Mr Thwaytes did not extend to obtaining an inflated price on the basis of scholarly opinions that were in fact wrong. Mrs Justice Rose left the point to be decided ‘in a case where it properly arises for determination’.

Mrs Justice Rose unambiguously endorsed Sotheby’s opinion that the painting is not by Caravaggio, even though she did not have to determine this issue. She clearly felt that art historians’ opinions were not to be relied upon, and observed that they expressed their views ‘with considerable certainty based on what may appear to a lawyer to be scant available evidence’.

It is notoriously hard to make cases of mistaken attribution stick against auction houses. Their attributions to particular artists or periods are usually clearly stated in their terms of business to be merely matters of opinion. To prove negligence, it has to be shown that no reasonable appraiser would have come to the conclusion the expert in question did, or in that particular way. This is quite a high bar.

In the case of Luxmoore-May v Messenger May Baverstock (1) the auction house was not found negligent when it failed to spot a pair of Stubbs animal paintings. The auction house had valued the paintings at £30 and they were subsequently re-sold by the buyer for £88,000. The court held that the standard of skill and care expected of an appraiser was to be judged against what could be expected of a general practitioner, and moreover should not be tested against the benchmark of hindsight. The fact that the auction house had failed to identify the artist did not detract from the exercise of their duty towards the consignor.

Auction houses are in the business of making money. It is not in their interests not to investigate works fully and miss attributions or, conversely, to go too far and be forced to rescind the sale. The case of Avrora v Christie’s (2) shows what can happen when an auction house sticks its neck out too far. In Avrora, the purchaser of a painting discovered post-sale that the work was not by the artist claimed in the Christie’s catalogue. The purchaser was entitled to rescind the sale and recover its money.

The lesson to be taken from this is that auction houses are market places. Consignors are free to sell through them or not, as they wish. Courts will not hold them responsible for mistaken attributions unless they are 'positive' (as in the case of Avrora). Even in Avrora the Court did not find that Christie's had been negligent in its appraisal of the work. The purchaser was entitled to rescission simply as a result of reliance on the usual buyer's warranty contained in the sale catalogue.

As the erstwhile Sotheby's expert, Tom Baring, said in evidence in Thwaytes, it is common for consignors to have strong emotional beliefs about the origin and quality of the works they hold. Auction houses have to assess the works on their own merits and the courts will not hold them to account if they get it wrong.

 

This article recently appeared on Pall Mall Art Advisors website (click here to view)

 

 

1 [1990] 1 W.L.R. 1009
2 Avrora Fine Arts Investment Ltd v Christie, Manson & Woods Ltd [2012] EWHC 2198 (Ch)

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