A claim for compensation against Sotheby’s auction house over the sale of a disputed ‘Caravaggio’ painting has been thrown out of the High Court, as reported here.
The Claimant, Mr Thwaytes, brought a breach of contract and professional negligence claim against Sotheby’s. The claim was made after the Claimant’s painting, attributed by Sotheby’s specialists to a ‘follower’ of Caravaggio and sold by Sotheby’s for £42,000,was subsequently attributed to Caravaggio himself and is, according to the judgment “apparently now insured for £10 million“.
In bringing his claim, Mr Thwaytes did not assert that the painting was an original, rather he alleged Sotheby’s had failed to sufficiently research the painting and to notice certain features of the painting which would have indicated that, at the least, the painting had ‘Caravaggio potential’. Had they performed their duties properly, Mr Thwaytes claimed, he could have sold it for a much greater price or be the owner of a work of great value.
Duty of Care
Sotheby’s submitted that only the ‘normal’ standard of care was owed to Mr Thwaytes.
Mr Thwaytes sought to argue a more onerous duty on the basis of: (i) where the painting came from; (ii) the fact he had told Sotheby’s he thought it was a Caravaggio; and (iii) he had specifically asked for the painting to be researched and studied, which he argued put Sotheby’s “on special inquiry as to the quality and importance of the Painting”.
The Court found that the duty undertaken by Sotheby’s when the painting was entrusted to them was the duty that arises generally when a painting is entrusted to a leading auction house, and that there were no special features to extend that duty or make it more onerous. This duty, as per Luxmoore-May and Another v Messenger May Baverstock  1 WLR, is “to express a considered opinion as to the sale value of the pictures, and to take further appropriate advice”.
As to the issue of negligence, Mr Thwaytes alleged that Sotheby’s:
- was wrong in its general approach i.e. in assessing the painting solely in terms of its artistic quality without carrying out further work or obtaining external advice; and
- failed to notice certain features of the painting which should have alerted them to its Caravaggio potential and prompted them to undertake further technical analysis, and to seek the views of external scholars.
The Court, in rejecting these arguments, found that Sotheby’s had not been negligent in their assessment of the painting. Sotheby’s were entitled to rely on the expertise of their highly qualified specialists who examined the painting thoroughly, and reasonably came to the view that painting was not of sufficient quality to indicate that it might be a Caravaggio. Further, there were no features of the painting that should have put Sotheby’s on special notice, caused them to question their assessment based on quality or obliged them or carry out a more extensive investigations.
Causation and Damage
In case the Court was wrong on negligence, Justice Rose considered causation and quantum hypothetically.
The conclusion was that ‘Caravaggio’ paintings often divide scholarly opinion as to their authenticity such that if Sotheby’s had consulted experts, they would likely have obtained both positive attributions but also negative views.
Furthermore, even if the painting had been sold with a catalogue entry detailing the positive and negative views of respectable scholars, it would have sold for only slightly more at auction.
Notwithstanding the evidence put forward to assert a higher duty of care, the Court found that the duty of care owed by Sotheby’s was that of a leading auction house. By examining the painting with their own panel of specialists, who unanimously believed the painting to be a copy, Sotheby’s were found to have discharged their duty of care.
Based on the findings that Sotheby’s had not breached their duty of care to Mr Thwayes, and had not been negligent in their advice or conduct, the claim was dismissed.
Mr Thwaytes’s legal team has stated that it is considering an appeal.