Lancelot Thwaytes v Sotherby's  EWHC 36 (Ch)
Sotherby's was entitled to rely on its own expertise and connoisseurship when deciding whether to catalogue an artwork as an autographed work or a copy.
Amongst the collection of the Kimbell Art Museum in Texas there is a painting known as The Cardsharps by Baroque artist Michelangelo Merisi da Caravaggio. It depicts 3 men grouped around a table playing a game of cards.
In the present case, Mr Thwaytes ('the Claimant') inherited a painting resembling The Cardsharps from his father's cousin, Surgeon Captain William Thwaytes, who died in 1965. Surgeon Captain Thwaytes was an art collector who, in 1947 purchased a painting called The Musicians, which in 1951 was identified as an original work by Caravaggio and eventually purchased by the Metropolitan Museum of Art in New York for a substantial sum. X-ray imaging was used as part of this analysis.
In 1962 Surgeon Captain Thwaytes purchased a painting from Sotherby's listed in their catalogue as 'Caravaggio (After), The Cardplayers' ('the Painting'). The word 'after' meant that, in the opinion of Sotherby's experts, the Painting was a copy of The Cardsharps in the Kimbell Art Museum.
In April 2006, the Claimant decided to sell the Painting. The Claimant met with Sotherby's and, during this meeting, the Claimant and Sotherby's representative discussed the importance of examining the Painting carefully in order to determine whether it had been painted by Caravaggio himself. The use of x-ray imaging was also discussed. However, Sotherby's denied the Claimant's assertion that it had agreed that infra-red testing would be used, or that it was completed as a matter of course.
The Painting was taken to Sotherby's premises in July 2006 and examined by its experts who all agreed that it was a copy and communicated this to the Claimant. The Claimant insisted the Painting be subjected to x-ray analysis, so x-ray images were obtained. Sotherby's position remained the same; the Painting was a copy and not the work of Caravaggio.
The Claimant accepted Sotherby's position and the painting was listed for auction on this basis. The Painting immediately attracted such significant attention that Sotherby's experts convened a review meeting the day before the auction was scheduled and the Painting was re-examined. Once again it was concluded that it was a copy. Sotherby's neglected to tell the Claimant about this meeting.
On 5 December 2006, the Painting was sold to Sir Denis Mahon, a renowned art scholar, for £42,000. Sir Denis arranged for the Painting to be cleaned and further analysis to be completed including the preparation of a complete x-ray mosaic, infra-red reflectography, false colour infra-red imaging and photographing the Painting under UV fluorescence. This analysis revealed that the Painting was an autograph replica painted by Caravaggio himself and worth millions of pounds.
The Claimant pursued an action for breach of contract and negligence against Sotherby's alleging, amongst other things, that Sotherby's had failed to research the painting adequately and that if they had, they would have undertaken further technical analysis and sought the views of external scholars. In particular, the Claimant argued that Sotheby's was negligent in failing to use infra-red imaging on the Painting and that Sotheby's had an enhanced duty of care by virtue of the Claimant's specific request that the Painting be researched as it put them on special enquiry as to its quality and importance. Sotheby's denied liability.
The court found in favour of Sotherby's on the following grounds:
- Sotherby's was entitled to rely on the "connoisseurship and expertise" of their specialists in the Old Masters Paintings Department in assessing the quality of the painting.
- The specialists were highly qualified and examined the Painting thoroughly.
- Sotherby's experts reasonably came to the view that the quality of the Painting was not sufficiently high to indicate that it might be by Caravaggio.
- There were no features of the Painting visible under ordinary or ultra violet light that should have put Sotherby's on notice that the Painting had "Caravaggio features or non-copy features that should cause them to question their assessment based on quality".
- Sotherby's was entitled to rely on its experts' opinion of the x-ray evidence, based on which they reasonably came to the view there was nothing which should cause them to question their assessment based on quality.
- Sotherby's were not under any obligation to carry out infra-red testing and, in any event, it would not have revealed anything which would have caused their experts to reassess their position.
- Sotherby's were not negligent in failing to inform the Claimant of the experts' meeting a day before sale. Even if they had, Mr Thwaytes would not have withdrawn the painting from sale because the experts would have told him their opinions had not changed.
Perhaps the most comforting aspect for the leading auction houses is the fact that only the 'normal' standard of care was imposed in this case and there was no greater duty imposed on Sotheby's than it would owe to anyone who consigned a work of art for sale. As such, there was no basis for concluding that where a work is consigned to an auction house for research and assessment rather than for sale, it imposes on the auction house a duty to examine the work more carefully than they need to if it is consigned to them for sale.
Interestingly, there is obiter speculation in the judgment as to what should have happened had Sotheby's been negligent in failing to secure external expert opinions about the Painting, given that it was probable that the scholar who bought the Painting would have been one of those experts consulted and that he would have given his opinion that the Painting was an autograph. In that situation the likelihood is that the majority opinion of the experts would have been that it was a copy and the Painting would still have been auctioned as such, but with a note in the catalogue as to the positive attribution of that scholar, which presumably would have raised the value of the Painting. This gives an indication of where loss of chance arguments would lie if negligence had been found.