Sotheby’s has been vindicated by the High Court in a legal battle against a former client alleging breach of contract and negligence over the attribution of a painting which was sold by the auction house in 2006 as a 17th Century copy of Caravaggio’s 1594 baroque masterpiece, The Cardsharps, now on display at the Kimbell Art Museum in Texas.
The painting’s former owner, Lancelot William Thwaytes, described his horror on learning after the sale of the painting for £42,000, that its new owner, the renowned collector and Caravaggio scholar Sir Denis Mahon, had proclaimed it to be the work of Caravaggio himself and therefore worth in the region of £10 million.
Mr Thwaytes subsequently brought a claim against Sotheby’s alleging that the auction house had been negligent for, among other things, failing to conduct adequate research into the painting before cataloguing it as the work of a ‘follower of’ Caravaggio. However, when the case came to trial, the Court held that the auction house had not been negligent in its examination of the painting.
The standard of care owed by auction houses to consignors of goods for sale was previously discussed in the Luxmoore-May v Messenger case, which concerned a provincial auction house outside London. In that case, the court drew an analogy with the medical field and decided that regional auction houses were like ‘general practitioners’ and could therefore not be expected to have the same level of specialist knowledge as a leading London auctioneer. However, in the present case the Court was required to set out the standard by which one of the world’s top auction houses should be judged.
In her judgment, Mrs Justice Rose remarked that those consigning an artwork to a leading auction house are entitled to expect that it will be assessed by highly qualified people who possess a familiarity with the styles and oeuvres of different artists, and a ‘connoisseur’s eye’. She also expected that a leading auction house ought to give artworks consigned to it a proper examination, devoting sufficient time to arrive at a firm view, and would not easily be able to rely on the poor condition of a painting as a reason for failing to recognise its potential.
Mr Thwaytes tried to argue that the court should in fact be applying an even higher standard of care in assessing negligence in this case, on the basis that he had put Sotheby’s ‘on special inquiry as to the quality and importance of the painting’. His arguments for this uplift were threefold: first, that he had asked for the painting to be researched before he had committed to selling it; second, that he had informed Sotheby’s that the painting had come to him from a collection that had yielded another lost work by Caravaggio himself; and third, that he had made it clear to Sotheby’s that he himself believed the painting was by Caravaggio. The Court, however, decided that none of these factors were sufficient to give rise to an enhanced duty by Sotheby’s. In the first case, the court said it would be unfair to impose a more onerous obligation on auction houses to spend time and resources researching artworks which had not yet been consigned for sale; in the second, there was no evidence that the previous collector had bought either painting thinking he had identified an original Caravaggio; and, finally, as Sotheby’s witnesses had explained at the hearing, ‘many consignors have a strong emotional belief in the “rightness” of their paintings’, so the third line of argument did not carry much weight either.
In this case, Sotheby’s Old Master Painting specialists had examined the painting under ordinary and UV light before informing Mr Thwaytes of their unanimous view that it was a copy. At the request of Mr Thwaytes, x-rays had also been taken but had not persuaded the specialists that there was anything about the work which warranted further investigation and the painting was duly catalogued. When Sotheby’s Olympia staff noticed that the work was receiving significant attention at the pre-sale views, three experts were called in from Sotheby’s New Bond Street to re-examine the work in private but once again unanimously concluded that there was no reason to change the attribution in the catalogue.
Mr Thwaytes claimed that Sotheby’s should have recognised the limits of its internal expertise and sought the opinion of Caravaggio scholars, one reason being that there had been no Caravaggio works sold at auction in recent decades, so Sotheby’s experts would not have been used to handling works by this artist and could not have developed the necessary ‘eye’ or connoisseurship properly to assess the painting. However, the Court found that Sotheby’s was entitled to rely on the expertise and connoisseurship of its team and that the quality of the painting was not sufficiently high to have justified further investigation. Moreover, expert witness evidence indicated that, even if Sotheby’s had consulted external Caravaggio specialists regarding attribution, they would have received many more negative views than positive.
Mr Thwaytes also argued that Sotheby’s had failed to notice certain‘Caravaggio features’ of the construction of the painting and the techniques used, as well as other features which would indicate that the painting was not a copy, including major pentimenti and differences between it and the Kimbell painting. However, following extensive expert evidence at trial, the judge concluded that none of these features were sufficient to have put Sotheby’s on alert and nor did the technical evidence, which included both x-ray and infra-red images, provide any information which, in the Court’s view, should have caused Sotheby’s specialists to reconsider their attribution.
Mr Thwaytes’ further criticism that Sotheby’s had neglected to notify him that there had been unexpected interest in the painting or that other experts had been called in to re-examine the work, also failed to impress the judge who accepted that, unless these had resulted in a significant change in the status of the painting, it was unlikely that a consignor would be informed of repeat viewings.
This case is notable as it represents not only a complete victory for Sotheby’s, who were cleared on every point, but a rare chance to see the approach taken by the UK courts in disputes concerning the attribution of artworks. Indeed, the judgment commented on the various difficulties faced by courts in such cases and expressed frustration at apparent incompatibilities between certain art historical and legal concepts and standards. For instance, Mrs Justice Rose observed that"it is clear that an art historian may express his or her current view with considerable certainty based on what may appear to a lawyer to be scant available evidence […and yet this does] not rule out another equally qualified expert expressing a different view with equal certainty based on the same scant evidence.". Furthermore, underpinning all the evidence there still remains the amorphous concept of the‘connoisseur’s eye’, which continues to play a key role in attribution disputes, despite the acknowledged ‘intuitive element’ that must make it a truly uncomfortable notion for any court asked to decide such an issue as a matter of legal certainty.