In January 2015, the Chancery Division of the High Court considered the duty of care owed by prestigious and leading auction houses in the case of Thwaytes v Sotherby’s.
The case concerned the identification and classification of a painting (“the Painting”) and whether the painting was negligently identified as a copy of The Cardsharps (I Bari in Italian) by the Italian Baroque artist Michelangelo Merisi da Caravaggio known as Caravaggio when in fact it was an autograph.
The Painting was owned by Mr Thwaytes, the Claimant in the proceedings. Mr Thwaytes inherited the Painting from his Uncle Surgeon Captain Thwaytes. In 2006, Mr Thwaytes was considering selling paintings from his collection to help pay for school fees and contacted Sotheby’s, the Defendant, to arrange a meeting at his estate to value and assess various paintings to include the Painting.
In July 2006, the Painting and two other items were collected by the Defendant from Mr Thwaytes’ estate with an understanding that the Painting was to be researched and studied to identify whether the Painting was a work by Caravaggio. In September 2006, following an extensive examination of the Painting by experienced employees within the Defendant’s Old Master Painting Department, the Defendant’s expert took the view that the Painting was a 17th century copy of the original Cardsharps painted by a follower of Caravaggio. This information was communicated to Mr Thwaytes and it was agreed that the Painting would be placed in the Defendant’s Old Masters Paintings auction at Olympia, London on 5 December 2006.
The Defendant prepared a catalogue entry for the auction in which the Painting was described as “Follower of Michelangelo Merisi Da Caravaggio The Cardsharps”. At the sales exhibition prior to the auction taking place, the Painting attracted a significant amount of attention. During the sales exhibition and prior to the auction, the Defendant’s expert, whose responsibility was the identification and sale of the Painting, contacted the Defendant’s experts at New Bond Street and asked them to come and take a further look at the Painting. At the end of this second meeting, it was the unanimous view of the Defendant’s experts that the Painting was a copy.
The Defendant sold the Painting at auction on 5 December 2006 for £42,000 plus buyer’s commission. The Painting was purchased by Ms Orietta Benocci Adam on behalf of her close friend Sir Denis Mahon.
Subsequently, Sir Denis Mahon, a lifelong Caravaggio scholar carried out extensive investigations into the Painting including having the Painting cleaned and restored. In November 2007, Sir Denis Mahon announced to the world that the Painting was an autograph replica of The Cardsharps painted by Caravaggio himself.
Mr Thwaytes brought a claim for both breach of contract and negligence against the Defendant.
The High Court was asked to determine the following issues:
- The scope of the standard of care owed by the Defendant to Mr Thwaytes. Mr Thwaytes contended that the Defendant was on special inquiry as to the quality and importance of the Painting. The Defendant contended that the normal standard of care applied.
- The general duty on an auction house when a painting is consigned to them; and
- Whether the Defendant was in breach of that duty.
The High Court ruled on the issues as follows:
- Mr Thwaytes contention that the Defendant was on special inquiry as to the quality and importance of the Painting
The contention was based on three factors; Mr Thwaytes’ request for the Painting to be researched without intention that they should sell it; that the Painting belonged to Surgeon Captain Thwaytes and came from the same collection as The Musicians another painting by Caravaggio which was thought to be a copy but turned out to be an autograph and that the Thwaytes family believed that the Painting was by the hand of Caravaggio.
The High Court ruled that where a work is consigned to an auction house for research and assessment rather than for sale there is no imposition of a duty to examine the work more carefully that they need to if it is consigned to them for sale. Secondly, there was no reason for the Defendant to believe that because Surgeon Captain Thwaytes had owned The Musicians, any other painting in his collection were worthy of special investigation and thirdly, the beliefs of the Thwaytes family as to whom had painted the Painting did not affect the duty owed. The High Court held that there were no special features in this case to extend or make more onerous the duty to be imposed on the Defendant.
- The general duty on an auction house when a painting is consigned to them
The High Court applied the test set out by the Court of Appeal decision in Luxmoore-May and Another v Messenger May Baverstock  1 WLR 1009. In this case the duty imposed on a provincial auction house that had been consigned a work for research was “to express a considered opinion as to the sale value of the foxhound pictures, and for this purpose to take further appropriate advice.” In his judgment in this case Slade LJ warned against assessing a defendant’s behaviour with the benefit of hindsight;
“The valuation of pictures of which the artist is unknown, pre-eminently involves an exercise of opinion and judgment, most particularly in deciding whether an attribution to any particular artist should be made. Since it is not an exact science, the judgment in the very nature of things may be fallible, and may turn out to be wrong. Accordingly, provided that the valuer has done his job honestly and with due diligence, I think that the court should be cautious before convicting him of professional negligence merely because he has failed to be the first to spot a ‘sleeper’ or the potentiality of a ‘sleeper’….”
The High Court ruled in this case that the duty of care to be imposed on a leading and world renowned auction house will be higher than that of a provincial auction house. It considered that a person who consigns their works to a leading auction house can expect inter alia that the painting will be assessed by highly qualified people in terms of their knowledge of art history, their familiarity with the styles and oeuvres of different artists and in terms of their connoisseur’s eye.
In respect of the normal duty of care of leading auction houses, the High Court added that it accepted the proposition that merely because Christie’s and Sotheby’s can be shown to act in a particular way does not automatically mean that that way is not negligent.
- Whether the Defendant was in breach of that duty
The High Court ruled that the Defendant was not negligent in their assessment of the Painting for the following reasons:
- They were entitled to rely on the connoisseurship and expertise of their specialists in the Old Masters Paintings Department in assessing the quality of the Painting;
- Those specialists were highly qualified and examined the Painting thoroughly at the Picture Meeting and at the Olympia Meeting;
- They reasonably came to the view on the basis of what they saw 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 at the Picture Meeting or the Olympia Meeting that should put the Defendant on notice that the Painting had Caravaggio features or non-copy features that should cause them to question their assessment based on quality;
- The Defendant was entitled to rely on its specialists to examine the x-rays of the Painting to see if they provided any information which caused them to doubt their assessment of the Painting and those specialists reasonably came to the view that there was nothing in the x-rays that should cause them to question their assessment based on quality;
- The Defendant was not under any obligation either to carry out infra-red analysis of the Painting or to advise Mr Thwaytes to arrange for that to be carried out. If they had carried out infra-red analysis they would not have found anything in the infra-red images that should cause them to question their assessment of the Painting; and
- The Defendant was not negligent in failing to inform Mr Thwaytes about the interest in the Painting that triggered the Olympia Meeting or that the Olympia Meeting had taken place. If they had informed him, it was found that he would not have withdrawn the Painting from sale since he would have been informed that all the Defendant’s experts were certain that the Painting was a period copy and not a Caravaggio.
This case highlights the scope of the duty owed by auction houses and establishes that in the case of leading, world renowned auction houses the duty imposed will be of a higher standard akin to a specialist in a particular field. It also highlights the fundamental principal of the need to show a breach of duty in order to establish negligence.The fact that it can later be shown that an entity has got something wrong, will not lead to a finding of negligence if it cannot be established that the entity has breached the duty owed.