The court has found that art dealers can act on their own assessment of the quality of an artwork, provided it is within their existing sphere of expertise, and can sell to other dealers.
In a case of great interest to the art world, James Wingfield of Howard Kennedy successfully defended London art dealers Simon C Dickinson Ltd ("Dickinsons") in proceedings alleging negligence in the sale of an 18th century French painting. The painting, entitled "Le Bénédicité" (saying grace), was attributed by Dickinsons on the sale as by "Chardin and Studio", as distinct from being attributed as a work solely by Jean-Baptiste-Siméon Chardin (an autograph work).
Expertise
The Claimants, the trustees of a Scottish trust, argued that Dickinsons acted negligently on the sale. They claimed that Dickinsons should have checked their views on attribution with the recognised leading expert on Chardin, namely Pierre Rosenberg and that if this had occurred, the attribution would have been upgraded to Chardin alone. The court dismissed this; Dickinsons were well able to form their own views given their existing expertise and their research on the painting, including their review of the literature. The court was extremely unattracted by the idea of a general "duty to check" with the leading expert on a given artist.
The literature, including the catalogue raisonné (descriptive catalogue) for the artist by Mr Rosenberg, supported Dickinson's attribution of the painting as by "Chardin and Studio", rather than as a work solely by Chardin. The court said this was obvious and logical. Arguments turned on the meaning of Mr Rosenberg's published descriptions of the painting both as "by the hand of Chardin" and a "copie retouchée" (see text box below). Mr Rosenberg would not give evidence at the trial to assist in this.
The court found that consulting Mr Rosenberg before the sale would have been a "spin of the roulette wheel", as it could have resulted in a downgrading of the painting to entirely studio, given some negative views he had previously expressed to Mr Dickinson about the painting. Therefore, Mr Dickinson's decision not to make that gamble on behalf of his client was not negligent.
As a result, the sale price achieved of £1.15m was also found to be appropriate.
Dealer-to-dealer sale
Dickinsons sold the painting on behalf of the Claimants to another dealer, a point which the Claimants alleged was negligent. The court did not consider that a dealer-to-dealer sale would constitute any form of negligence, unless there was some evidence to indicate that the seller in such circumstances knew or should have known that they could have sold at a higher price directly to the other dealer’s client, and actively decided not to do so. There was no evidence to suggest that in this case.
Duty to inform client
The Court rejected the assertion that Dickinsons should have informed the Claimants of the possibility that consulting Mr Rosenberg might have had the effect of improving the attribution of the painting and therefore increasing its sale price. It found that Mr Dickinson would have regarded the idea that Mr Rosenberg would declare the painting to be solely by Chardin (wholly autograph) as fanciful. A positive obligation to raise a particular issue with a client arises only in circumstances where an advisor has taken a view on a particular point, but knows (or should have known) that that view was potentially likely to be challenged. In this case there were no factors which should have caused Mr Dickinson to believe that his view was open to challenge – in his opinion his evaluation was entirely in line with Mr Rosenberg’s published treatment of the painting, and there was no other existing authority whose view, even if different, could somehow “trump” that of Mr Rosenberg.
Signature
After the sale, the buyer conducted a deep clean of the painting and found a previously unseen signature, said to be that of Chardin. This did not feature prominently in the Claimants' case, even though the buyer then marketed the painting as a “fully autograph masterpiece by Chardin himself”. It was not disputed that Lord Wemyss, on behalf of the Claimants, had instructed Dickinsons to conduct only a light clean before the sale. In addition, it is generally recognised that a signature on a painting does not necessarily mean that the painting is by the artist alone.
How do you interpret the meaning of a rarely used, historic French term – "copie retouchée"?
Mr Rosenberg had examined the painting in 1992 and subsequently catalogued it as "by the hand of Chardin" (“de la main de Chardin”), something the Claimants placed great reliance on in support of their arguments that it should have been given the attribution of being solely by Chardin. He gave such works a capital letter reference. However, Mr Rosenberg also described the painting as a "copie retouchée par Chardin". This is a rarely used, apparently historical term and the parties disagreed on its meaning.
Importantly though, other descriptions by Mr Rosenberg of paintings he categorised as "by the hand of Chardin" revealed that this term was not used exclusively to identify paintings that were solely by Chardin. For example, those other paintings were also described variously as "a good studio copy" and "only the figure of the beggar is by Chardin". Such a close reading of the entirety of Mr Rosenberg's catalogue raisonné revealed that Dickinsons view was not negligent.
Where Dickinsons believed the painting had substantial input from the artist, but where other parts of it were perceived to be of inferior quality, the attribution of “Chardin and Studio” was the obvious and logical attribution and the court could not fault Dickinsons for applying it.
Case: Amanda Feilding or Charteris, Countess of Wemyss and March and Vilma Ramsay (suing as trustees of the Wemyss Heirlooms Trust) v Simon C Dickinson Ltd [2022] EWHC 3091 (Ch)
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