This article is taken from Paul Howcroft’s blog Art Law London.
We now have the keenly awaited High Court judgment in The Cardsharps case.
This was a negligence claim against Sotheby’s who had advised a Mr Lancelot Thwaytes in 2006 that his painting of The Cardsharps was a copy of Caravaggio’s painting of that name, currently in the Kimbell Art Museum in Fort Worth, Texas. Sotheby’s described Mr Thwaytes’ painting as being by a “Follower of Caravaggio” and, as a result, that was the basis on which it was auctioned by them, selling for £42,000.
The lady who bought it did so on behalf of her friend Sir Denis Mahon, who was described by the judge as “a lifelong Caravaggio scholar of great renown”. In November 2007, at a party to celebrate his 97th birthday, Sir Denis announced to the world that after cleaning, restoration, extensive investigations, and input from other experts, it was clear that the painting was a replica painted by Caravaggio himself, and therefore worth many millions of pounds. Needless to say, Mr Thwaytes was rather miffed to hear this. He brought a claim against Sotheby’s for damages for negligence. Rather than claiming and having to prove that Sir Denis had been right and Sotheby’s had got it wrong, which Sotheby’s and some experts still do not accept, the claim was that Sotheby’s failed to spot that the painting had “Caravaggio potential”.
As I have pointed out before (Coleridge Collar), it was not for the court to second guess whether or not Sotheby’s got it right, but whether they were negligent in reaching their conclusion. The test is what a reasonable and competent art researching auction house would have done, and in this case the judge made clear that, for an auction house of Sotheby’s status, the standards had to be high. He also held that it made no difference whether the art was just sent for research and assessment, rather than for sale.
In his 190 paragraph judgment, the judge concluded that Sotheby’s had not been negligent. In response to particular claims, he held that Sotheby’s did not need to obtain external advice; that they were entitled to conclude that the quality was not sufficiently high to merit further investigation; and that nothing on the visual examination, the X-rays and the infra-red images should or would have changed Sotheby’s view. The judge also held that had the painting been sold with conflicting expert views on its attribution, it might not have sold for much more than it did.
On a personal note, I happened to see the painting last month, where it currently hangs high in a corner of the Museum of the Order of St John, in London. Aware of the case, I took particular interest in it, and I was not impressed. I claim no expertise whatsoever, and admittedly the painting was badly lit, but I remarked to my companion that it looked very “flat” for an old master. I was therefore interested to see from the judgment that Alexander Bell, Sotheby’s Joint International Head and Co-Chairman Worldwide in their Old Master Painting Department, told the court that he had concluded that the painting looked “flat and dead”. Perhaps I’m in the wrong business!
Paul Howcroft, Partner, Fladgate LLP (firstname.lastname@example.org)