The art of connoisseurship through judicial eyes: the law of negligence and fine art attribution.
In January 2015, the High Court handed down a significant judgment to add to the growing body of case law on the complex and often highly controversial topic of fine art attribution. Thwaytes v. Sotheby's brings into focus a number of difficult but key issues involved in applying the law of negligence to attributions made by auction houses. (2) The task of making attributions, particularly where works of art are of doubtful authorship, has ever been a matter for debate and dispute among art historians (and remains so today) resting as it largely does on the exercise of the connoisseur's 'eye', i.e. the ability of an expert to bring his or her knowledge of, and long-standing familiarity with, an artist's work and techniques, to bear when evaluating a work of art and reaching an attribution. (3)
A judgment which rests on something as subjective as what may essentially come down to an expert's gut feeling and yet is also crucial to determining the value of a work of art, will inevitably lead to disputes. Some of the most famous art cases in history have involved questions of attribution, such as the case brought in 1929 against the great art dealer Joseph Duveen by Mrs Harry J. Hahn over his claim that her painting La Belle Ferronniere was not in fact by Leonardo da Vinci, a case eventually settled out of court. (4) When a consignor or buyer of a work of art brings a negligence claim against an auction house over an allegedly 'incorrect' attribution, the court is faced with a tricky, some might say near impossible, task: applying an objective standard of care to a highly subjective judgment in a field where views may differ widely as between experts and may shift over time. So when will an attribution be negligent in law?
The decision in Thwaytes provides some assistance in answering this question. The facts, in brief, were these: in 2006, the claimant, Mr Thwaytes, consigned for sale to the defendant, Sotheby's, a painting whose composition was closely related to Caravaggio's Cardsharps ('the Painting'), an original of which is owned by the Kimbell Art Museum, Fort Worth. Mr Thwaytes had inherited the Painting from his father's cousin, Surgeon Captain William Glossop Thwaytes, who had bought it from Sotheby's in 1962 for 140 [pounds sterling], catalogued as 'Caravaggio (After), The Cardplayers'.
Mr Thwaytes had previously had the Painting valued in 1989/90 by Christie's at 3,000 [pounds sterling] 4,000 [pounds sterling], and again in 2002 for insurance purposes by Sotheby's for 9,000 [pounds sterling]. In preparation for the sale in 2006, Sotheby's carried out certain examinations on, and research into, the Painting including visual examination by its own experts at two different picture meetings, examination under UV light and with white spirit and (at the request and cost of Mr Thwaytes) X-radiography. The experts at Sotheby's concluded that the Painting was a seventeenth-century copy of the Kimbell Cardsharps by a follower of Caravaggio and it was sold as such at auction on 5th December 2006 for 42,000 [pounds sterling] plus buyer's commission, above an estimate of 20,000-30,000 [pounds sterling].
The successful bidder, Ms Orietta Benocci Adam, was a close friend of Sir Denis Mahon, the renowned art scholar and connoisseur who had a particular expertise in Caravaggio. After extensive cleaning, conservation and technical analysis (including infra-red imaging), Sir Denis announced publicly in November 2007 that the Painting was in fact an autograph replica by Caravaggio. Press reports at the time suggested that the Painting with its new attribution could be worth up to 50 million [pounds sterling]. In 2008 the Painting was exhibited in Italy as an autograph work by Caravaggio, (5) but in response to enquiries by Mr Thwaytes, Sotheby's maintained that they remained confident in their original attribution that the Painting was a later copy. (6)
Mr Thwaytes brought a claim for breach of contract and negligence against Sotheby's in relation to its 2006 judgment that the Painting was a seventeenth-century copy rather than an original by Caravaggio. Both parties accepted that the test to be applied was the same for both causes of action, and as no issues of validity or interpretation of the sales contract signed by Mr Thwaytes and Sotheby's were pleaded, the judge focused on the negligence claim. At issue was the standard of care which was owed by Sotheby's to Mr Thwaytes as consignor and vendor of the Painting. Ultimately, the judge found that Sotheby's had not been negligent in its assessment of the Painting and Mr Thwaytes' claim failed. (7)
This case is only the third in modern times which involved a consignor suing an auction house over an attribution, (8) but there have been a number of other cases in the last 60 years or so which concerned buyers of fine art suing auction houses where it was later alleged that the picture or object in question had been attributed incorrectly to a particular artist or was in fact a forgery, although some of these were contractual claims only. These buyer cases inevitably involve very similar issues as they also concern the standard of care which an auction house should meet when reaching an attribution on a work of art.
It is important to view Thwaytes in the context of this line of consignor and buyer cases to see how, if at all, it advances our understanding of the standard of care owed by auction houses to consignors and buyers when making fine art attributions. This will obviously be of concern to the vendors and buyers of art as well as the auction houses and dealers themselves. The purpose of this article, therefore, is to consider some of the key issues that arise in these cases to illuminate the particularly complex problems which face judges in attempting to apply a legal duty of care to the task of fine art attribution, and to ask whether there is now any greater clarity on when an attribution will be negligent by that standard.
In a famous passage from his judgment in a case involving the purchase of a van Dyck which ultimately was held not likely to be an original, Buckley J. stated that the connoisseur's eye:
involves also a sensitivity to such concepts as quality, emotion, mood and atmosphere. To an extent "eye" can be developed but, like many other human attributes it is partly born in a man or woman. Were it otherwise there would be more true experts. (9)
Is it therefore ever appropriate for a court to judge (even if only in a legal sense) the accuracy of an art expert's attribution?
B. STANDARD OF CARE FOR A LEADING INTERNATIONAL AUCTION HOUSE
In order to decide the question of Sotheby's liability, Rose J. had first to decide what standard of care was owed by the auction house to Mr Thwaytes. Here she was bound by the Court of Appeal decision in Luxmoore-May and Another v. Messenger May Baverstock (10) which concerned the duty of care owed by a provincial auction house to a consignor of two paintings of foxhounds that later turned out possibly to be (and were later sold as being) by Stubbs. In Luxmoore-May, Slade L.J. had applied the distinction that has been made in medical negligence cases between the doctor who is a general practitioner and one who is a specialist to conclude that the standard of care expected of a provincial auction house was only that of a general practitioner, i.e. the question to be answered was whether the attribution was one which no auctioneer of ordinary skill would reach acting with ordinary care. (11) Ultimately, the Court of Appeal held that widely differing views on the paintings were reasonable and it could not be said that no competent valuer would have failed to spot their Stubbs potential. (12)
In applying the Luxmoore-May test in Thwaytes, Rose J. had to take into consideration that Sotheby's is not a provincial auction house and thus a higher standard of care towards consignors is to be expected. (13) Therefore, in what constitutes one of the key parts of her judgment, she set out a four-part standard of care which is owed by a leading international auction house to a consignor of a painting, as follows: (14)
1. The painting must be assessed by highly qualified people--qualified in terms of their knowledge of art history, familiarity with the styles and oeuvres of different artists and in terms of their connoisseur's 'eye'. This may be contrasted with the position in Luxmoore-May where the Court held that the valuer's lack of expertise on Stubbs did not prevent him from making a competent attribution (given he was a general practitioner, not a specialist). (15) Further, it should be borne in mind that a leading international auction house has ready access to the opinions and services of art historians of the highest levels of scholarship worldwide. Again, by contrast, in Luxmoore-May it was held that a provincial auction house cannot be expected to have access to the kind of top expert opinions which would be the case for a leading auction house. (16)
2. The auction house must give the work a proper examination, devoting enough time to arrive at a firm view where that is possible. A cursory examination would be insufficient: the Judge's view was that the brief examination of the paintings which was carried out in Luxmoore-May would not have met this test.
3. It is much more difficult for a leading auction house to rely on the poor condition of a painting as a reason for failing to spot its potential. However, this point should be considered alongside the Judge's view that it is impractical to conclude that Sotheby's experts were not competent to assess the painting just because it was covered in discoloured varnish. (17) By contrast, in Luxmoore-May Slade L.J. considered the poor condition (dirtiness and overpainting) of the foxhound pictures to be a justification for the defendant auctioneer not to have spotted their Stubbs potential. (18)
4. An art expert must know his or her own limitations and when (s)he should consult an outside expert; however, this threshold should be set at a much higher level for a leading auction house than for a provincial one. Some further colour can be added to this final limb from the case of Avrora Fine Arts Investment Ltd v. Christie, Manson and Woods Ltd concerning the purchase of a painting by the early twentieth-century Russian artist Kustodiev which later turned out to be a forgery. (19) Although Newey J. only considered the negligence claim obiter (given that the contractual claim against Christie's was successful), he held that Christie's would not have been negligent by virtue of the fact that it did not consult an external expert given that it had good reasons for reaching the Kustodiev attribution. (20) Further, in William Duke Coleridge 5th Baron Coleridge of Otteiy St Mary v. Sothehy s, an unsuccessful negligence claim in relation to Sotheby's seventeenth-century attribution for a Tudor judicial collar, the Judge held it was commercially unrealistic to have expected the valuer from Sotheby's to consult specialist dealers to canvass expert opinion on value as this would have undermined those dealers' positions if they had wanted to bid for the collar at auction. (21) This would suggest that the bar for external consultation may be set fairly high and a leading international auction house might be expected to consult external experts only when there were more than minimal doubts or differences of opinion internally as regards the correct attribution of an object, or a significant gap in relevant internal expertise. However, there is some (limited) support for the proposition that where there is a widely acknowledged leading external expert in the relevant field, the auction house should consult him / her even where it does not have doubts over the attribution. In De Balkany v. Christie Manson and Woods Ltd (22) (discussed below) in which Morison J. held Christie's attribution of a painting to Schiele (over which it had had no doubts) to have been negligent, the auction house had omitted to consult any external expert. However, it should not be assumed that failure to consult will necessarily amount to negligence, especially where internal expertise is of sufficient quality to reach a reasonable view. (23)
It might seem that to a certain extent this fourth limb of the duty of care conflicts somewhat with the first. As regards a provincial auction house, an internal expert may be able to make an attribution which meets the standard of care (under the first limb) despite a lack of relevant expertise, but should be more alive to his or her own limitations (under the fourth limb) than an expert at, say, Sotheby's or Christie's (i.e. the bar for consulting a specialist is set lower). As regards a leading international auction house, internal expertise is expected to be of a higher standard and the bar for when external experts should be consulted is set higher, yet it is also recognised that such an organisation will have much better access to (and thus impliedly should be consulting) those experts. This illustrates the complexities of trying to craft a standard of care in this field which will cover all scenarios.
A further point which was helpfully clarified by Rose J. is that there is no difference in the standard of care as set out above when an auction house accepts a painting on consignment initially for research purposes only as opposed to sale. Mr Thwaytes had argued that consignment for research purposes imposes a higher standard of care, but the Judge held that even where a consignor expressly requests that research be carried out (as Mr Thwaytes had done), it would be unfair to impose a higher standard of care on the auction house where the consignor has not yet agreed to sell the picture (and therefore commission is not guaranteed). (24) Rather the auction house's task is to advise the consignor on how much research into a painting is justified given the likely results, irrespective of whether the painting has been consigned for sale or research alone. (25)
Although this conclusion may at first appear to be beneficial to auction houses (in light of Mr Thwaytes' argument that consignment for research should impose a higher standard of care) it may come as something of a surprise to auction houses that the same standard of care is owed to a consignor when researching a painting where there may be no prospect of a sale as when a painting is consigned specifically for sale. However, such conclusion is in line with Luxmoore-May in which the foxhound pictures were originally removed to the auction house for research purposes only, but the duty on the defendant auction house was found to be to express a considered opinion as to the sale value of the pictures (and for this purpose to take further appropriate advice). (26) A similar point was also considered by the Court of Appeal in Thomson v. Christie Manson and Woods Ltd, a claim by a buyer of a pair of Louis XV porphyry vases whose attribution was later called into question. (27) In that case, the claimant had been categorised as a special client by Christie's as it regularly advised her on lots coming up for sale. However, May L.J. held that advising on a lot did not affect or alter the scope of the standard of care owed by Christie's to the claimant. (28)
The standard of care owed by a leading international auction house to a consignor is thus fairly clear as a result of the Thwaytes decision. But it still leaves much scope for interpretation as regards the practical steps such an auction house must take whep reaching a decision on attribution in order to discharge its duty successfully. Some key points are considered below.
1) Scientific Analysis
It is clear that the very minimum an auction house must do is to conduct a thorough visual examination of the painting under suitable conditions and using the standard tools, i.e. natural, artificial and UV light and white spirit to remove temporarily old varnish from a small section of the picture. However, a question arises as to whether more technical (and expensive) analysis in the form of X-radiography and / or infra-red imaging should be carried out. Where a significant and highly valuable painting is consigned for sale, it is standard practice for leading auction houses to carry out these tests given that this is justified by the estimated sale value and is expected by consignors.
By contrast, in a case such as Thwaytes where the estimated sale value of the picture was 20,000-30,000 [pounds sterling], a decision has to be taken as to whether such expensive analysis is worthwhile; in this context Rose J.'s comment that the auction house's task is to advise the consignor on how much research into a painting is justified given the likely results, is particularly relevant. In Thwaytes, X-radiography was carried out at the express request of Mr Thwaytes (against Sotheby's advice) but these did not alter the view of Sotheby's experts that the Painting was a copy.
A dispute arose between the parties as to whether Sotheby's had agreed to carry out, and had informed Mr Thwaytes that they had carried out, infra-red imaging (as Mr Thwaytes claimed he had requested)--this was an important point because infra-red imaging was part of the analysis later commissioned in relation to the Painting by the purchaser which led to Sir Denis Mahon's attribution to Caravaggio. Rose J. found that a misunderstanding had arisen between the parties over the issue, but that Sotheby's had not undertaken to carry out infra-red imaging (29) and that, even if it had performed such imaging, the results would not have altered its attribution. (30) More importantly, she decided that in the circumstances there was no obligation on Sotheby's part to offer Mr Thwaytes infra-red imaging even though he was clearly prepared to pay for it: given its confidence in its attribution, Sotheby's would not have been justified in encouraging Mr Thwaytes to spend money on further tests, just because he was prepared to do so. (31)
It would seem, therefore, that the auction house must have sufficient doubts over its attribution before more expensive technical analysis needs to be carried out to discharge its duty of care to the consignor. (32) Although this may appear to be somewhat circular, it should be borne in mind that scientific analysis may be helpful in proving a negative (e.g. that the painting does not date from a particular period), but usually has limited value in proving a positive attribution, as was recognised by Rose J. (33)
2) Research--Consultation of Written Sources
Clearly part of an auctioneer's research into a painting, in particular on the question of provenance, is likely to include checking, for example, previous sales catalogues and any relevant academic commentary. In relation to the Painting in Thwaytes, there existed an engraving of a version of the Cardsharps made by Giovanni Volpato in 1772 (the Volpato engraving) and a pair of important articles on the Kimbell Cardsharps (a picture which had been discovered in 1987) in the January 1988 edition of the Burlington magazine--these were an analysis by Sir Denis Mahon; and a technical report by Keith Christiansen of the Metropolitan Museum of Art, New York (the Burlington publication).
Sotheby's neither looked at the Volpato engraving nor consulted the Burlington publication as part of its research into the Painting. It is of note that Rose J. concluded that it should have done so and this was the only point on which she found Sotheby's to have been at fault. (34) However, she also concluded that there was nothing in the Volpato engraving or the Burlington publication that should have alerted Sotheby's to the idea that the Volpato engraving could have been taken from the Painting and not the Kimbell Cardsharps and thus the failure did not affect its liability. (35) In other words, Sotheby's failure did not cause Mr Thwaytes any loss.
Nevertheless, arguably the general point which can be deduced here is that a leading international auction house will be expected to consult relevant sources such as academic commentary when researching a painting in order to discharge its duty of care. It is possible that an auction house could be in breach of such duty where it fails to consult a key source which is likely to change its views on an attribution.
3) Interest in the Picture from Potential Purchasers and Picture Meetings
The Painting attracted a considerable amount of attention during the Old Master Paintings week at the sale exhibition at the Olympia showroom which preceded its sale. Subsequently, Sotheby's called a second picture meeting to examine the Painting at which experts from its New Bond Street salerooms were present (the 'Olympia Meeting'). However, Sotheby's experts' view remained unanimous that the Painting was a copy. (36)
Sotheby's did not inform Mr Thwaytes about the unexpected level of interest expressed in the Painting or of the Olympia Meeting. Mr Thwaytes argued this was negligent; in particular he suggested that the convening of the Olympia Meeting during the period of the sale exhibition indicated Sotheby's had doubts over the attribution. (37) However, Rose J. found that the approach taken by Sotheby's was not unreasonable: she accepted expert evidence for Sotheby's that an auction house does not have the time continually to update a consignor about the level of interest expressed and would be unlikely to inform a consignor about repeat viewings made by experts unless they resulted in a significant change in the status of the painting. Indeed, if Mr Thwaytes had been told about the Olympia Meeting, it should actually have reassured him that Sotheby's was taking care to assess the Painting properly and that it was confident in its attribution. (38)
As the Painting eventually sold for 42,000 [pounds sterling], i.e. at only a small margin above the upper estimate, this is perhaps further evidence in support of Sotheby's argument that the level of interest expressed in the Painting was not indicative of a market view on its attribution that differed from its own. However, it is also worth noting judicial dicta from Avrora that the level of interest expressed in a painting or price paid at auction (i.e. the market view) should not necessarily be accepted by a court as evidence of whether or not an attribution is correct (see further below). (39)
Consignors should therefore take note that it appears to be incumbent upon them to be proactive about enquiring regularly of the auction house about the level of interest expressed in a painting at a pre-sale exhibition and the number of experts who have examined and expressed a view on it internally.
4) CONNOISSEURSHIP--THE EXPERT'S 'Eye'
As was noted above in the discussion of scientific analysis, it is visual inspection, often referred to as connoisseurship or the expert's 'eye', which is generally held by judges to be the single most important factor in reaching a positive attribution for a picture. This is encapsulated in the first limb of the Thwaytes test which refers to the importance of the expert's knowledge of art history, familiarity with the styles and oeuvres of different artists and 'eye'. Indeed, as will be discussed in considerably more detail below, while recognising that there is a certain amount of academic debate on the value of connoisseurship as against scientific analysis in the task of attribution, Rose J. decided that more weight should be placed on visual inspection and that Sotheby's was entitled to rely on its expertise and connoisseurship in approaching the question of attribution.
This conclusion is very much in line with judicial commentary in previous cases. In Avrora, Newey J. concluded that connoisseurship evidence provides the most reliable guide to authenticity, (40) while in Drake both expert witnesses agreed that the question of attribution could be resolved only by 'eye', a view which was endorsed by the Judge. (41) Further, judges have acknowledged that it is well-known in the art market that attribution is largely based on visual inspection--therefore there is no particular duty on an auction house to inform a consignor or buyer that this is the case. (42) It is important, accordingly, that consignors and buyers understand the nature of connoisseurship and in particular how it is likely to be assessed by the courts.
C. A NOTE ON EXPERTS
Given that connoisseurship appears to be the essence of attribution, it is not surprising that expert witnesses for each party have a major role to play in cases concerning fine art attribution and a judge's careful assessment of their evidence is key to his or her judgment. This was certainly the case in Thwaytes where the claimant and defendant each had three expert witnesses covering: 1) art historical evidence and connoisseurship; 2) technical evidence; and 3) auctioneering practice and fine art valuation.
Although this is not in itself an uncontroversial legal point, an attribution is usually held to be an opinion. (43) With reference to medical negligence, a doctor is not negligent by acting in accordance with a particular practice merely because another body of opinion takes a contrary view of that practice, a concept which has frequently been acknowledged and followed in these attribution cases--just because one expert reaches a different view on attribution from another does not necessarily mean that his or her attribution is negligent. (44) Indeed, it may often be impossible to reach an objectively 'correct' attribution where fine art is concerned, and so the auction house has only to show that its opinion has a logical basis and is not one that no reasonable auctioneer in its position (taking into account whether it is a provincial or leading international auction house) could have reached. (45) However, there is some support for the idea that such opinion should be based on a certain amount of due diligence having been undertaken by the auction house, although how much and what kind of due diligence is reasonable will very much depend on the facts of the specific case. (46)
In assessing the value of expert evidence in Thwaytes, Rose J. felt that the witnesses for Mr Thwaytes were the most reliable on the technical evidence, but she placed greater weight on the evidence of Sotheby's witness on questions of connoisseurship and visual examination. (47) As established above, given the importance of connoisseurship to attribution, this presumably put Sotheby's at a considerable advantage in this case. (48) It would seem advisable, therefore, that claimants against auction houses focus in particular on securing the best expert evidence on connoisseurship possible (although this may be no easy task).
It has been established both that these attribution cases largely rest on assessing connoisseurship and that an attribution is a subjective judgment. The court is therefore faced with the significant challenge of analysing this type of judgment within the framework of an objective test for duty of care.
D. THE KEY QUESTION IN THWAYTES AND JUDICIAL VIEWS ON THE TASK OF ATTRIBUTION
Rose J. decided that the key question to be answered was:
whether Sotheby's was negligent in that no reasonable auction house would have concluded on the basis of quality that the Painting could not be by Caravaggio. (49)
To reach an answer to this question involved her examining in forensic detail the evidence submitted on the visual aspects of the Painting, the quality of execution, positioning of subjects, handling of light etc, ultimately to conclude that there were no visible features of the Painting that should have put Sotheby's on notice that its attribution based on connoisseurship might be erroneous. (50)
The highly subjective nature of attribution appears to be the reason why judges have traditionally been reluctant to impose liability on auction houses in these cases. In Leaf v International Galleries (A Firm), (51) a buyer's claim (to rescind a contract for the purchase of a Constable which later transpired to be most likely a copy) was rejected by the Court of Appeal on the grounds of lapse of time--that as five years had passed since the painting had been purchased, the buyer was deemed to have accepted the goods and therefore only had a claim for damages (which he did not plead).
However, influential on the judges' decision in Leaf was the nature of the task of attribution, as described by Evershed M.R.:
the attribution of works of art to particular artists is often a matter of great controversy and increasing difficulty as time goes on. If the plaintiff is right in saying that he is entitled, perhaps years after the purchase, to raise the question as to whether in truth a particular painting was rightly attributed to a particular artist, most costly and difficult litigation may result. There may turn out to be divergent views on the part of artists and critics of great eminence, and the prevailing view at one date may be quite different from that which prevails at a later date. (52)
Similarly, in Harlingdon and Leinster Enterprises Ltd v. Christopher Hull Fine Art Ltd, (53) the Court of Appeal rejected a buyer's claim (Stuart-Smith L.J. dissenting) that the attribution of a painting (later discovered to be a forgery) to the German expressionist artist Gabriele Munter by the defendant dealer had become a term of the sale contract under section 13 of the Sales of Good Act 1979 (SGA) and that the defendant was in breach of an implied term under section 14(2) SGA that the picture be of merchantable quality. That case may to some extent be distinguished on the basis that the claimant as well as the defendant was an art dealer and therefore was deemed to have greater expertise of the art market than an ordinary buyer.
However, in general comments, Nourse L.J. stated that most collectors as well as dealers are aware that forgeries and fakes are a common hazard of the art market such that
almost any attribution to a recognised artist, especially of a picture whose provenance is unknown, may be arguable ... The court ought to be exceedingly wary in giving a seller's attribution any contractual effect. To put it in lawyer's language, the potential arguability of almost any attribution, being part of the common experience of the contracting parties, is part of the factual background against which the effect, if any, of an attribution must be judged. (54)
Since Leaf and Harlingdon, judges have been slightly more comfortable in finding auction houses liable in contract to buyers where a work purchased turns out to be a forgery, provided of course that the relevant contractual matrix allows this. (55) However, it is notable that a claim in negligence against an auction house over an attribution, whether by a buyer or a consignor, has never succeeded, which provides further evidence of the difficulties in applying a tortious duty of care to the task of attribution.
Judges have also been alive to the need to avoid hindsight in these cases, i.e. the attribution by the auction house must be judged only on the basis of all the evidence available to it (or which should reasonably have been available to it) at the time the attribution was made. (56) It is clear from these cases that an attribution will not be judged against information, views or scientific analysis that were not, or not reasonably, available to the auction house at the time the attribution was made. This in turn recalls Evershed M.R.'s warning in Leaf that views on attribution may change over time and the courts have in some part to allow for this.
Of course, the reason why the correct attribution (by which is meant an attribution that is widely accepted by the art world) is so important is that it largely determines the question of value and therefore (in a successful claim) the cause of the claimant's loss and any damages. (57)
E. APPLYING A DUTY OF CARE TO CONNOISSEURSHIP--LAW V. ART
As outlined above, the court's main task in an attribution case such as Thwaytes is to answer the question of whether no reasonable auction house on the basis of connoisseurship would have made the attribution that it did. This necessarily involves to some extent the judge evaluating whether the attribution made was 'correct', but it is very important to understand that in doing so the judge is (or should be) making only a legal judgment, not an art historian's one. As in any case involving expert witnesses, a judge must evaluate the evidence of the experts, but should not advance his or her own 'expert' opinion.
This is particularly so in such a specialist field as fine art connoisseurship where there may be only a handful of experts in the world who are really qualified to opine on a particular artist or oeuvre. Judges therefore frequently remind themselves in these cases of the need to tread very carefully: Buckley J. in Mansour Ojjeh v. Mark Waller, Galerie Moderne Ltd, a claim brought by a buyer relating to glass motor car mascots by Lalique whose purple colouring it transpired had been added at a later date, stated that he must "resist the temptation to draw on my own expert opinions", (58) while in Drake, in a passage often quoted by judges in later cases, he said:
a judge should not himself assume an expertise he does not possess ... however I may regard my own taste for things artistic, I must not presume to have an expert's "eye" for a van Dyck. (59)
But this presents a problem given that as mentioned, the judge must to some extent form an opinion on the attribution. This paradox was neatly encapsulated by Rose J. in Thwaytes when, having acknowledged Buckley J.'s warning in Drake about not substituting his own opinion for those of the experts, she added "the task is inescapable here, given the issues in this case". (60)
This raises a crucial question: is it in fact possible to separate the art historical verdict on attribution from the legal one? In theory, the answer should be yes. After all, the burden of proof in a civil claim is only the balance of probabilities, so although it may seem absurd to characterise it in this way, if a claimant can show that there is an over 50 per cent likelihood that the attribution reached was unreasonable, his claim should succeed even though that might not be sufficient to convince the art market. (61)
Further, judges have recognised that a legal judgment on attribution and an art historical one might not be one and the same:
Slade L.J. in Luxmoore-May (in relation to a previous opinion sought by the defendant from Sotheby's that the foxhound pictures were not by Stubbs):
I cannot for my part say that the attribution was either improper or unreasonable. Whether it was correct is a different matter; (62)
Morrison J. in De Balkany:
this is a judicial decision based on the evidence and it is not, and it does not purport to be, a contribution to the academic debate in which I am not qualified to participate; (63)
Pelling J. in Coleridge:
the question does not in the end turn upon which of the rival contentions 1 consider more preferable. If it is shown that a respectable body of practitioners in the relevant field would have expressed [the same] conclusion ... the Claimant must fail. (64)
In this context, Drake provides a particularly interesting example because here Buckley J.'s conclusion on the art historical expert evidence (that the picture was not by van Dyck, contrary to the defendant dealer's original attribution) was different from his legal decision--that the defendant was nevertheless not liable because the attribution to van Dyck had merely been a statement of opinion and had not been incorporated as a term of the contract under section 13 SGA nor had there been any misrepresentation by the defendant. (65)
However, Drake did not involve a negligence claim and it might be more difficult to imagine a scenario where, based on the expert evidence a judge concludes that the defendant auctioneer's attribution was wrong but the auctioneer is still not negligent, unless the duty of care has been successfully excluded in some way, for example by contract, as was the case in Avrora and De Balkany. (66)
Even more difficult to contemplate is a case where the defendant auctioneer's attribution is held to be 'correct' on the expert evidence, but that the auctioneer is still liable in negligence. In theory it is possible, if unlikely, that an auction house could demonstrate a cavalier attitude to assessing and reaching a decision on attribution in relation to a picture in a manner which failed to meet the standard of the legal duty of care owed to a consignor or buyer, yet such attribution was still found to be correct based on the expert evidence. However, in such a case any damages arising from a successful claim would probably be nominal given that any (financial) loss suffered by the claimant would be minimal. Further, it is possible that in this scenario a judge would still not find the auction house negligent because carrying out the attribution in a manner which met the duty of care would not have altered the decision on attribution, i.e. the claimant would not be able to show causation (see comments above in relation to the failure by Sotheby's to consult the Volpato engraving and the Burlington publication in Thwaytes).
The reality, therefore, is that in negligence claims against auction houses, the art historical and legal judgments on attribution are most likely to be one and the same. However, this should not mask the fact that they are in fact different issues and that in theory all that a claimant has to prove is that on the balance of probabilities the attribution by the auction house was unreasonable in light of the standard of care owed, whether or not that would be sufficient to convince the art market. Perhaps understandably, there appears to be some confusion on this point. (67)
Another key difference between the art historical and the legal judgment is that the latter can provide a final decision on attribution in a way which the former may not be able to do. Particularly in relation to Old Master paintings such as the Painting in Thwaytes, it may not be possible to prove conclusively an attribution in such a way that it is accepted by all or even the vast majority of experts. However, the final decision of a court provides some kind of definitive conclusion on the authenticity of a work of art which gives the attribution legal status. (68)
In summary, therefore, there are two key features of fine art attribution cases which make them particularly difficult for judges. First, the conceptual challenges of separating the art historical judgment on attribution from the legal one, especially as the legal decision must necessarily be based on expert evidence. Second, the application of an objective duty of care to the highly subjective art of connoisseurship. This has arguably led to a certain amount of judicial reluctance to impose liability on auction houses in relation to attributions.
In particular this second point poses a not insignificant challenge to consignors or buyers wishing to bring claims regarding attribution against auction houses. In fact, judicial caution on this issue is embedded in the very foundations of case law in this area. In Luxmoore-May, Slade L.J. qualified the duty of care owed by an auction house to a consignor with this crucial caveat:
the valuation of pictures of which the artist is unknown, pre-eminently involves an exercise of opinion and judgment, most particularly in deciding whether an attribution to any particular artist should be made. Since it is not an exact science, the judgment in the very nature of things may be fallible, and may turn out to be wrong. Accordingly, provided that the valuer has done his job honestly and with due diligence, I think that the court should be cautious before convicting him of professional negligence merely because he has failed to be the first to spot a "sleeper" or the potentiality of a "sleeper". (69)
On one reading, this could be seen as tantamount to saying that questions of attribution are beyond the judgment of the courts altogether unless perhaps gross negligence on the part of the auction house can be shown. Is art therefore a special case? In his judgment, Slade L.J. also referred to the case of Saif AH v. Sydney Mitchell & Co., a House of Lords decision concerning a professional negligence claim against a barrister. (70) In Saif Ali, Lord Wilberforce made similar comments about the nature of a barrister's work, the provision of a legal opinion necessarily involving the exercise of judgment:
which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is very unlikely to succeed.
However, he added "but this is not an argument for giving him total immunity from proceedings". (71)
A parallel could once again be drawn with medical negligence cases. In Bolitho v. City of Hackney Health Authority, Lord Browne-Wilkinson confirmed that although conduct which is in accordance with a body of professional opinion will not be negligent, such body of opinion must be "responsible, reasonable and respectable", in other words:
the judge ... will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter. (72)
In an attribution context, these cases from other professional fields suggest that the attribution at issue must still be supported by a certain amount of appropriate due diligence resulting in an attribution which has a logical basis. This in turn should provide some (limited) comfort to consignors and buyers that an attribution by an auction house is not in fact beyond the court's scrutiny in the context of a negligence claim. The key question of course is what constitutes sufficient due diligence for these purposes (and bearing in mind the lower standards required for a provincial auction house) which in turn brings us back to the scope of the duty of care owed. One rare example of an auction house having been held to have conducted insufficient due diligence is found in the case of De Balkany which also provides some evidence of judicial frustration at the way in which the law of negligence applies in this field.
In De Balkany, the claimant succeeded in contract by showing that the Schiele she bought was a forgery within the meaning of that term in Christie's conditions of sale, but Morison J. considered obiter the concurrent claim in negligence. (73) Crucially, he decided that on the facts Christie's had undertaken responsibility to the claimant for the exercise of reasonable care in making the attribution and had been negligent in its attribution to Schiele: had the experts at the auction house conducted their analysis of the painting in compliance with their duty of care, they would have reached a different conclusion on attribution. However, Christie's had successfully excluded liability in negligence in their conditions of sale by not assuming responsibility to the buyer for the statements made in the sale catalogue. (74)
Although this was the correct legal answer, Morison J. found this conclusion unsatisfactory. In his view, auctioneers occupy a special position in the law and have complete discretion over how to describe a particular lot for sale. Further, buyers are entitled to assume that an auction house has experts who take great care over catalogue entries and that the auction house has therefore satisfied itself as to the authenticity of a lot--in return, a buyer pays a substantial premium on a purchase. Therefore, if an auction house can exclude any responsibility to the buyer as regards an attribution, it begs the question as to what the payment of the buyer's premium is for. As Morison J. put it, "a buyer has got nothing of substance for his premium". (75)
One might make a similar point in relation to the commission paid by a consignor - although the payment is at least in part for marketing the work to potential buyers, a consignor might fairly assume he is also buying a guarantee that sufficient research and analysis will be undertaken to lead to a secure attribution, given that this largely determines the value of the picture consigned. However, at least in the case of consignors, as the auction house acts as the seller's agent, their interests should be broadly aligned; an auction house will no less want to miss a 'sleeper' than the consignor given the potential for a much greater sale price (buyer's commission being a percentage of that price). (76)
Given the complexities involved in these cases, it is perhaps unsurprising that there has not yet been a successful negligence claim against an auction house relating to an attribution. Yet this presents something of a problem for consignors, buyers and auction houses alike. While it is clearly established that auction houses owe a duty of care to both consignors and buyers when making an attribution, as has most recently been articulated in Thwaytes as regards consignors, the exact scope of that duty remains uncertain. In theory negligent behaviour amounting to less than gross negligence would be sufficient to breach the duty of care owed, but there is no clear sense of where the line should be drawn in practical terms.
F. FURTHER POINTS FROM THWAYTES
A number of other key points came out of the Thwaytes decision upon which it is worth commenting briefly in this context.
1) Sotheby's and Christie's: Status of Common Practices
One of the few arguments put forward by the claimant's counsel which Rose J. accepted was that the difficulties in establishing the standard of conduct to be expected from auction houses in part arise from the fact that there are only two leading international auction houses, at least as regards Old Masters, i.e. Sotheby's and Christie's. (77) This runs the risk that through their practices Sotheby's and Christie's can set the standard of care in this market. This is an important issue given that often a key consideration in professional negligence cases is whether the practice or action at issue is one which is common or recognised by the relevant industry. (78)
Arguably relevant here is the case of Workers Trust and Merchant Bank Ltd v. Dojap Investments Ltd, a decision of the Judicial Committee of the Privy Council on an appeal from the Jamaican Court of Appeal in which one of the questions for detennination was whether a deposit of 25 per cent on the sale of land at auction by a bank was reasonable. (79) The Jamaican Chief Justice had held that because it was common practice for Jamaican banks selling property at auction to demand deposits of between 15 and 50 per cent such practice was reasonable. However, the Committee rejected this argument, stating that the deposit must objectively be 'earnest money' and not operate as a penalty:
to allow the test of reasonableness to depend upon the practice of one class of vendor, which exercises considerable financial muscle, would be to allow them to evade the law against penalties by adopting practices of their own. (80)
Similarly, Rose J. accepted the proposition that:
merely because Christie's and Sotheby's can be shown to act in a particular way does not automatically mean that that way is not negligent. There must be a backstop consideration of the need to protect the interests of the client. (81)
Although this finding was not in the end helpful to Mr Thwaytes' case, it does provide a useful reminder that whatever the difficulties inherent in assessing the duty of care in making an attribution, it remains an objective test and an auction house may not simply be able to point to common practice as evidence that the standard of care has been met.
2) Subsequent Sale(s) as Evidence on Attribution
If Mr Thwaytes' claim against Sotheby's had been successful, he argued that the quantum of his loss would have been the difference between the value of the Painting as sold at auction or by private treaty with the benefit of Sir Denis Mahon's and / or Mina Gregori's support for a Caravaggio attribution, and the value for which it was in fact sold. Rose J. commented that arriving at such a valuation was "necessarily speculative", not least because as the Painting had not been sold again since Sir Denis Mahon had made his attribution public, "it is not known how the art world would react to the views expressed". (82)
This raises an important question as to whether prices achieved in subsequent sales of art works the subject of this kind of litigation should be accepted by the court as evidence of whether the defendant auction house's attribution / valuation of the work was negligent. It is notable that in those cases where the work in question has subsequently sold for a much higher price with a different attribution, this has not made any difference to the outcome of the case. (83)
In Luxmoore-May, the foxhound pictures had subsequently been sold at least twice by the time of the litigation: through Sotheby's to Spinks for 88,000 [pounds sterling]; and by Spinks to Paul Mellon for an undisclosed sum, but presumably also rather higher than the 840 [pounds sterling] originally paid by the purchaser of the pictures from the defendant auctioneer. (84) However, as already discussed above, this did not prevent the Court of Appeal from concluding that widely differing views on the attribution were both possible and reasonable and that on the balance of probabilities the claimant had not shown that failing to attribute the foxhound pictures to Stubbs was unreasonable. (85)
Of course, the fact that the defendant was a provincial auction house and therefore could not be expected to have access to the best expert opinions influenced the Court of Appeal's decision in Luxmoore-May. By contrast, in Coleridge the defendant (Sotheby's) was a leading international auction house; here the judicial collar had subsequently been sold by Christie's for 260,000 [pounds sterling] (as compared with the 35,000 [pounds sterling] achieved by Sotheby's in the private treaty sale on behalf of the claimant) on the basis that it was in fact Tudor rather than a seventeenth-century replica. Yet again this did not affect the outcome of the case. As has consistently been observed, in line with professional negligence law, the fact that a second body of opinion exists does not necessarily mean that the opinion under scrutiny is negligent provided it can be shown to have been reasonable. (86)
In this context it is also worth noting Newey J.'s words of caution in Avrora over the question of whether the positive market reaction to the sale of the Kustodiev should be taken as evidence that the attribution to the artist by Christie's was secure. Newey J. rejected this argument as put forward by Christie's largely because the people at the auction on whose views he was being asked to rely were not before the court to explain those views and have them subjected to judicial scrutiny. (87)
Potential claimants should therefore bear in mind that subsequent sales of a picture with a different attribution or a catalogue description reflecting a broader range of scholarly opinion will not necessarily be accepted as evidence that the defendant's attribution was negligent. Nevertheless, where a claimant feels that the evidence of subsequent market reaction is sufficiently strong to suggest that the attribution was unreasonable, in light of the dicta from Avrora, this should be presented if possible through the medium of expert evidence rather than simply counsel's submissions.
3) Does an Auctioneer's Duty to the Consignor/Buyer Extend to Informing Him About the Full Range of Opinion on a Work of Art?
In Thwaytes, counsel for Sotheby's advanced the argument that the duty of an auction house to a consignor does not extend to obtaining an inflated price for a painting based on scholarly opinions on attribution which are in fact wrong. Rose J. noted that this was an "interesting legal point" but left the question open for determination on another occasion. (88) However, this point is surely intimately connected with the question of whether an auction house is under a duty to inform the consignor or, via the sale catalogue, the buyer, of all scholarly opinions on a work even where those opinions conflict with those of the auction house.
Assistance on this issue is provided by Thomson in which counsel for Christie's submitted that an auction house is not obliged to express 'fanciful doubts' over an attribution, in this case that the vases stated by Christie's to be original Louis XV were objects which were widely copied in the nineteenth century. This was accepted by May L.J.: the duty of care assumed by professionals giving advice does not include an obligation to draw attention to the obvious or to highlight fanciful risks or unreal doubts--it is sufficient to hold a certain and definite opinion on the attribution, provided such attribution is reasonable. (89)
A similar point had been made by Buckley J. in Ojjeh when he said of the defendant's attribution of the purple-dyed car mascots to Lalique:
when an expert examines an object he can only give his own honest opinion of it. I do not believe he is bound to regale his potential client with doubts which others may have expressed about it provided his own examination is thorough. (90)
This appears to go further than May L.J.'s dicta in Thomson in implying that the auction house is not obliged to disclose differing views on attribution even where they may be reasonably held, provided it has sufficient confidence in its own view. (91)
Once again, this conclusion is in line with the principle in professional negligence law that just because the opinion under consideration differs from that of other experts does not necessarily mean that it is negligent--the key point is that it must be reasonably held. A loose analogy might also be drawn with the principle which has developed in medical negligence cases regarding the disclosure of risks to patients that only significant risks, i.e. ones which are required for the patient to determine what course of action he or she wishes to follow, need to be disclosed. (92) Nevertheless, not to disclose doubts about an attribution to a consignor is arguably to deny him/her a fully informed choice over what course of action to take as regards the work to be consigned and whether to seek a second independent opinion on attribution. There must be a point at which any doubts the auction house's experts may entertain are sufficient (i.e. at the very least more than fanciful) to warrant disclosure to the consignor / buyer or else risk a breach of the duty of care.
Thwayles provides some useful clarifications of the law in this area, not least in setting out in the clearest terms yet a four-part duty of care which a leading international auction house owes to a consignor. Arguably one could expect a similar standard of care to be owed to buyers. To recap:
1. The painting must be assessed by highly qualified experts, bearing in mind also that a leading international auction house has ready access to the opinions and services of art historians of the highest levels of scholarship worldwide.
2. The auction house must give the work a proper examination, devoting enough time to arrive at a firm view where that is possible.
3. A leading auction house cannot necessarily rely on the poor condition of a painting as a reason for failing to spot its potential; the condition of a painting should not affect the competency of the auction house's ability to assess it.
4. An art expert must know his or her own limitations and when to consult an outside expert; however, it appears that a leading international auction house is expected to consult external experts only when there are reasonable doubts or differences of opinion internally as regards the correct attribution of a picture, or a significant gap in relevant internal expertise.
Despite the fact that this claim was unsuccessful, the confirmation of the duty of care in Thwaytes does show that in theory at least, the courts are prepared to find an attribution negligent where an auction house does not meet this standard of care when making such attribution; thus there is some advancement from the position in earlier cases such as Leaf, Harlingdon and Luxmoore-May where judges appeared to show reluctance to subject attributions to an objective duty of care at all.
However, the difficulty for any potential claimant (whether consignor or buyer) is to show breach of duty in practical terms (i.e. that the attribution reached was not reasonable in all the circumstances) given that it is widely acknowledged that an attribution rests largely on the subjective exercise of the connoisseur's 'eye' at the time the attribution is made. As the line of past attribution cases (to which Thwaytes is only the latest addition) has shown, it is the connoisseur's 'eye' which is subject to the court's scrutiny here, the key question for consideration being whether no reasonable auction house would have made the attribution at issue on the basis of connoisseurship.
This is necessarily a different question from whether the attribution is considered 'correct' from an art historian's perspective. As was apparent in Luxmoore-May, several experts / the art market may hold one opinion on an attribution (in that case that the foxhound pictures were by Stubbs) while the court holds that a different attribution by the defendant auction house was reasonable. And yet the paradox here is that to answer the legal question, a judge must to some extent get involved in analysing the expert evidence and thus critiquing the subjective 'eye' of the experts against an objective standard of care. Even Buckley J. in Drake conceded that he must decide which of the two (subjective) expert views on the van Dyck attribution he found most persuasive and it was not simply a matter of accepting the view of the expert witness who was acknowledged to be the greater expert on van Dyck (although this was an influential factor in his decision). (93) Likewise in Thwaytes, Rose J.'s analysis as to which expert's 'eye' she found most convincing was instrumental to her decision on whether Sotheby's had in fact breached its duty of care.
These are complex issues and all point to fine art attributions being something of a special case within the law of negligence, it is hard to think of any other chattel where a judgment as to the very nature of the thing which also determines its value can fall within such a wide spectrum of views and yet still be deemed reasonable in legal terms. Consignors and buyers of art would therefore be advised actively to seek as much information as possible about the way in which an attribution has been reached, including the internal analysis undertaken by the auction house, which external experts (if any) have been consulted and the level of interest shown in the work pre-sale. Where a case comes to court, procuring an expert witness whose connoisseurship is highly regarded is clearly key, although this may pose a considerable challenge given the likely limited number of experts in a very specialist area, the restrictions which academic institutions may put on their employees with regards participating in litigation and the likely advantage an auction house will have in procuring the leading experts. (94)
So when will an attribution be negligent? Thwaytes has to a certain extent provided helpful clarification of the law of negligence as it applies to fine art attributions and De Balkany showed that it is in theory possible for an auction house to breach the standard of care owed. Arguably, however, it will only be once there has been a successful negligence claim over an attribution that there may be greater clarity on what in practical terms constitutes a negligent attribution and a more precise scope of the due diligence which an auction house must perform in reaching an attribution will be established.
(1) Thwaytes v. Sotheby's  EWHC 36 (Ch.) at .
(3) See J. Murdoch, 'Attribution and the Claim to Objectivity', (1993) 2(2) International Journal of Cultural Property, pp. 319-334, for an interesting account of the history of attribution science, in particular the different approaches in the nineteenth century of the Italian school, as represented by Giovanni Morelli, and the Gennan school, as represented by Wilhelm Bode. The question of the extent to which attribution should rely on connoisseurship continues to be a matter of great debate within the art world: see, for example, 'Do We Need a Return to Connoisseurship?', Art Newspaper, June 2014, pp 55-56.
(4) For the full story, see J. Brewer, The American Leonardo: A 20th-Century Tale of Obsession, Art and Money (Oxford University Press, 2009).
(5) See D. Benati and A. Paolucci, Caravaggio: I "Bari" della collezione Mahon (Milan, 2008); in particular, M. Gregori, "A further original of Caravaggio's Cardsharps" (pp. 20-49) in which she argues for an attribution to Caravaggio. Gregori provided a witness statement in support of Mr Thwaytes' case and her article for this publication was incorporated into her evidence.
(6) Above, note 1 at [32-66].
(7) Ibid., at .
(8) The other two cases are: Luxmoore-May and Another v. Messenger May Baverstock  1 W.L.R. 1009; William Duke Coleridge 5th Baron Coleridge of Ottery St Maty v. Sotheby's  EWHC 370 (Ch.) noted by Paul Stevenson in (2013) XVIII Art Antiquity and Law 77.
(9) Drake v. Thos Agnew & Sons Lid  EWHC 294 (Q.B.) at  noted by A.H. Hudson in (2003) VIII Art Antiquity and Law 201.
(10)  1 W.L.R. 1009.
(11) Ibid., per Slade L.J. at  citing Maynard v. West Midlands Regional Health Authority  1 W.L.R. 634, per Lord Scarman at  in turn quoting Hunter v. Hanley  S.L.T. 213, per Lord President Clyde at .
(12) Ibid.,per Slade L.J. at .
(13) In line with leading professional negligence cases such as Bolam v. Friern Hospital Management Committee  1 W.L.R. 582, the test for negligence is the standard expected of the ordinary skilled man exercising the special skill of his particular profession.
(14) Above, note 1 at [76-78].
(15) Above, note 10, per Slade L.J. at .
(16) Ibid.,per Slade L.J. at ; per Sir David Croome-Johnson at [1029-1030].
(17) Above, note 1 at .
(18) Above, note 10, per Slade L.J. at .
(19)  EWHC 2198 (Ch.) noted by Jordan Holland in (2012) XVIII Art Antiquity and Law 365.
(20) Ibid., at .
(21)  EWHC 370 (Ch.) at , noted by Paul Stevenson in (2013) XVIII Art Antiquity' and Law 77.
(22)  Tr 163, noted by Norman Palmer in (1996) 1 Art Antiquity and Law 49.
(23) One might even argue that an auction house expert is in a better position to make an attribution where the authorship of a work of art is uncertain given that he or she is likely to have examined works of art covering a much broader range of artists and oeuvres than is a leading expert on one particular artist.
(24) Above, note 1 at .
(25) Ibid., at ,
(26) Above, note 10, per Slade L.J. at [1012-1013].
(27)  EWCA Civ. 555, noted by A.H. Hudson in (2005) X Art Antiquity and Law 307.
(28) Ibid., per May L.J. at [128-129].
(29) Above, note 1 at ,
(30) Ibid., at [160,166].
(31) Ibid., at .
(32) See also Coleridge, above, note 21 at [100-1] where Pelling J. decided that it was reasonable for Sotheby's to have reached a conclusion on the age of the collar without assaying it or conducting spectroscopic analysis of the fineness of the gold, given he was not convinced that the expert evidence supported the proposition that no reasonably competent valuer would have omitted to do so.
(33) Above, note 1 at .
(34) Above, note 1 at ,
(35) Ibid., at ,
(36) Ibid., at ,
(37) Ibid., at .
(38) Ibid., at [163, 165].
(39) Above, note 19 at , At issue here was whether, as argued by Christie's, the competitive bidding and high price for which the Kustodiev was sold (for 1.5 million [pounds sterling] plus buyer's premium over an estimate of 180,000-200,000 [pounds sterling]) could be taken as evidence that Christie's attribution to Kustodiev was correct. However, Newey J. did not accept this evidence: the people who had been at the auction were not before the court and therefore their opinions on the attribution could not be tested by the court.
(40) Ibid., at ,
(41) Above, note 9 at ,
(42) Thomson, above, note 21, per May L.J. at ; De Balkany, above, note 22 at [p.15],
(43) Of course whether an attribution is in fact an expression of opinion may in itself be a key legal issue in a case, for example, in claims made by buyers when considering whether the attribution had been incorporated as a term of the sale contract under s. 13 of the Sale of Goods Act 1979 (sale by description): see Drake, above, note 9 at [26, 32]; Harlingdon ami Leinster Enterprises Ltd v'. Christopher Hull Fine Art Ltd  1 Q.B. 564, per Nourse L.J. at [575, 578] but cf. per Stuart Smith L.J. (dissenting) at .
(44) Bolam v. Friern Hospital Management Committee  1 W.L.R. 582 at . See Luxmoore-May, above, note 10,per Slade L.J. at [1020, 1024]; Thomson, above, note 21, per May L.J. at [116, 159]; Coleridge, above, note 21 at [24, 99-100]--if a respectable body of professionals would have reached the same conclusion, then the claim must fail even if a second body would have reached a different conclusion.
(45) See Thwaytes, above, note 1 at  citing Bolitho v. Hackney Health Authority  A.C. 232.
(46) See Luxmoore-May, above, note 10,per Slade L.J. at ; also Morin v. Bonhams & Brooks Ltd and Another  EWCA Civ 1802, per Mance L.J at [para. 24]: "it is a usual implication in relation to any expression of opinion by a professional person that due diligence has been exercised in preparing and expressing the opinion", noted by Melanie Bristow in (2008) XIII Art Antiquity and Law 105. While Morin concerned jurisdictional issues only (i.e. in which forum the claim should be heard) it related to a claim by the buyer of a Ferrari at an auction in Monaco whose mileage turned out to be higher than specified in the sale catalogue.
(47) Above, note 1 at .
(48) A similar point arose in Coleridge, above, note 21 where the Judge noted that the lack of any expertise of working as a valuer for an international auction house among the claimant's expert witnesses might be a significant omission; by contrast, Sotheby's expert witness had that experience. But cf. Drake, above, note 9 at  where the Judge held that the claimant's expert witness possessed the greater expertise.
(49) Above, note 1 at ,
(50) Ibid., at .
(51)  2 K.B. 86.
(52) Ibid., per Evershed M.R. at ,
(53)  1 Q.B. 564. A further interesting point arose in Harlingdon which was not resolved by the Court of Appeal, namely whether the term implied by s. 14(2) of the Sales of Goods Act 1979 (that the goods supplied be of merchantable quality) extends to an attribution for a work of art. Stuart-Smith L.J. at  expressed the view that attribution was covered; Nourse L.J. at  and Slade L.J. at  left the question open as they decided that s. 14(2) did not apply in any event. The judge at first instance had held that s. 14(2) did not extend to the attribution (See [576-7]).
(54) Above, note 53, per Nourse L.J. at [577-578],
(55) See De Balkan)', above, note 22; Mansour Ojjeh v. Mark Waller, Galerie Moderne Ltd  WL 1044211, noted by A.H. Hudson in (1999) IV Art Antiquity and Law 247; Avrora, above, note 19: in all these cases the buyer was entitled to rescind the contract where the work(s) bought turned out to be forgeries. However, it is interesting that in each instance the Judge held that a concurrent claim in negligence failed or would have failed.
(56) See Luxmoore-May, above, note 10, per Slade L.J. at [1020, 1023]--compliance with the duty of care is to be judged by reference to the actual circumstances confronting the practitioner at the material time; in the case of 'sleepers', the court must avoid being wise after the event; Coleridge, above, note 21 at --the attribution of Sotheby's valuer is to be judged having regard to the material that in the circumstances was reasonably available at the time the attribution was made; Thwaytes, above, note 1 at --referencing dicta in Luxmoore-May above.
(57) However, this was not always the case; for discussion on how the importance of attribution to collectors and connoisseurs has changed over the centuries, see Murdoch (above, note 2), p. 324 and J. Stourton and C. Sebag-Montefiore, The British as Art Collectors: From the Tudors to the Present (Scala Publishers, London, 2012), pp. 102, 112: for example, in the eighteenth century, a good copy of a very fine picture might be considered better (and perhaps more valuable) than a mediocre original.
(58) Mansour Ojjeh v. Mark Waller, Galerie Moderne Ltd 1998 WL 1044211 at [p.3].
(59) Above, note 10 at , Referenced in Avrora, above, note 19 at  and Thwaytes, above, Note 1 at .
(60) Above, note 1 at .
(61) In fact likelihood of correct attribution was briefly discussed in percentage terms in Thomson, above, note 21, per May L.J. at .
(62) Above, note 10,per Slade L.J. at --in this context, it is also relevant to note his concluding comments at  that "while the opinion of the defendants and those whom they consulted may have been an erroneous one, negligence in law on their part has not, in my judgment, been established".
(63) Above, note 22 at [p.2].
(64) Above, note 21 at ,
(65) Above, note 9 at [33, 35].
(66) Above, note 19 at ; above, note 22 at [p. 17].
(67) See for example Bendor Grosvenor's commentary on Thwaytes, Art Newspaper, March 2015, Section 2, p. 9: "[Mr Thwaytes] had to prove beyond doubt that his painting really was by Caravaggio"; and in relation to what constitutes negligence, "that the auction house had hardly bothered to find out if the work was genuine"; discussed further in Letters to the Editor, Art Newspaper, April 2015, p.50.
(68) As commented on by Rosemary Listing in 'Art and Authenticity: The Role of the Expert Witness', (2012) XVII Art Antiquity and Law 155: "the court is the only body that can give a declaration of legal identity to the work in question and back that declaration with tangible effect".
(69) Above, note 10.per Slade L.J. at .
(70)  A.C. 198.
(71) Ibid., per Lord Wilberforce at .
(72)  A.C. 232, per Lord Browne-Wilkinson at , Lord Browne-Wilkinson did, however, concede that it would be rare for there to be circumstances in which a court might find that the relevant body of medical opinion cannot be logically supported and is therefore unreasonable.
(73) For commentary on this case, see in particular Norman Palmer, 'Misattribution and the Meaning of Forgery: The De Balkany Litigation', (1996) 1 Art Antiquity and Law 49. The decision was unusual in that, as we have seen, courts have tended to treat attributions by auction houses as statements of opinion rather than fact. However, as Palmer points out, in this case Christie's had expressly and independently assumed responsibility for the authenticity of the picture under its standard conditions of sale.
(74) Above, note 22 at [pp. 15, 17].
(75) Above, note 22 at [pp. 16-17].
(76) As noted in Thomson, above, note 27, per May L.J. at , The duties owed by the auction house to the consignor as his agent potentially create a conflict with any duties owed to the buyer.
(77) Above, note 1 at . Claimant's counsel referred in particular to the case of Edward Wong Finance Co. Ltd v. Johnson Stokes & Master (A Finn)  1 A.C. 297, a decision of the Judicial Committee of the Privy Council concerning conveyancing practice by solicitors in Hong Kong. The Committee held that the respondent solicitors had been negligent despite following Hong Kong conveyancing practice because that practice involved foreseeable risk. This was argued to be support for the proposition that a practice may still be regarded as negligent even when it is accepted among professional people if it falls into bad habits and creates unnecessary and easily avoidable risk for the client. Although Rose J. was unsure whether this principle could in fact be drawn from the case, she accepted the general point that just because a practice is standard or common does not necessarily mean it is not negligent.
(78) See for example Stokes v. GKN  1 W.L.R. 1776 at : "where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, [the defendant] is entitled to follow it".
(79)  2 All E.R. 370.
(80) Ibid., per Lord Browne-Wilkinson at .
(81) Above, note l at .
(82) Ibid., at , Having heard expert evidence on the values achieved by paintings with contentious attributions but sold with catalogue entries setting out the conflicting views of scholars, Rose J.'s decision (at ) on this point was that the Painting would have achieved only slightly more at auction or by private treaty sale if it had been sold with a catalogue entry detailing Sir Denis Mahon's attribution--she held that the negative views of other scholars as regards an attribution of the Painting to Caravaggio would have carried much more weight.
(83) Of course it should not be assumed that a positive attribution by an auction house to a particular artist will necessarily be accepted by the market and result in a higher sale price. For example, the picture Boy Peeling a Fruit offered for sale at auction by Christie's in January 2015 in New York remained unsold despite the attribution by the auction house to Caravaggio: see Old Master Paintings Part I. Wednesday 28 Jan. 2015 (Christie's), pp. 52-7.
(84) Above, note 10, per Slade L.J. at .
(85) Interestingly, May L.J. concluded at [1027-8] (obiter) that based on the evidence before the court the claimant had not shown on the balance of probabilities that the paintings were by Stubbs. This was despite the fact that at least two subsequent purchasers (one of them a well-known art dealer) clearly thought that they were autograph works by the artist.
(86) Above, note 21 at .
(87) Above, note 19 at .
(88) Above, note 1 at .
(89) Above, note 21, per May L.J. at [95, 157].
(90) Above, note 58 at [p. II].
(91) This is comparable with Rose J.'s finding in Thwaytes (discussed above) that an auction house is not under a duty to disclose to a consignor the levels of interest expressed in a picture and the number of repeat viewings made by its experts (e.g. in this case the Olympia Meeting) where this does not alter its view on attribution.
(92) See Pearce v. United Bristol Healthcare NHS Trust  P.I.Q.R. P53, per Lord Woolf M.R. at .
(93) Above, note 9 at [43-5].
(94) Some of these difficulties were recognised by Buckley J. in Drake, ibid., at . Here the expert witnesses for both parties had an interest in the case, a reflection of the fact that there were so few experts on van Dyck available.
Isabel Paintin, Solicitor, Farrer & Co.
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|Publication:||Art Antiquity & Law|
|Date:||Jul 1, 2015|
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