Judging attribution


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This article is taken from Paul Howcroft’s blog Art Law London.

As I’ve remarked before, court judgments in art cases are always a good read for anyone interested in art. The background in Mr Justice Newey’s 43 page judgment, in the much awaited Vekselberg case, is no exception, and it will be a useful source for students of the works of Russian artist Boris Kustodiev.

The court held that the painting called Odalisque, bought by Victor Vekselberg’s company Avrora for £1.7m at Christies, was not attributable to Kustodiev, and so was a fake. It did so applying the civil law burden of proof, which is “on the balance of probability”. That means at least 51% sure. It has been reported that Avrora alone spent over £1m on lawyers and experts to get that result, and no doubt Christies’ costs were similar. I’m not sure what alternatives there could be, but litigation is a very expensive way to determine attribution, and even then it is only based on a judge’s best guess, based on the evidence before him.

The law of the case is less remarkable, but illustrative. As a result of the finding that the painting was a fake, Avrora was able to obtain a refund of the price and premium from Christies under its five year Limited Warranty. The only real legal dispute was on Avrora’s overlapping claims for damages for negligence and for misrepresentation, which might conceivably have included something more than the amount claimed under the warranty. The court held that Christies would, on the facts, have been negligent and be liable for misrepresentation, but potentially its standard terms and conditions were wide enough to avoid liability. The next question was whether those terms might be unenforceable as being unreasonable, pursuant to the Unfair Contract Terms Act 1977. The court took account of various matters, not least the existence of the Limited Warranty, in concluding that the exclusions were reasonable, and therefore Avrora failed on the additional claims.

Paul Howcroft, Partner, Fladgate LLP (phowcroft@fladgate.com)

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