Auction — Negligence — Sale by auction of two small paintings, each of a single foxhound on a rocky seashore — Successful appeal by provincial auctioneers from decision of Simon Brown J — Judge had held that auctioneers had been in breach of their contractual duty in failing to exercise due skill and care in their valuation and sale of these paintings, which had later been sold by Sotheby’s with full attribution to George Stubbs ARA — Court of Appeal’s view that judge had ‘demanded too high a standard of skill’ — Question as to nature of auctioneer’s duty and extent of research required when a picture is presented for sale which might be a ‘sleeper’ — Spotting a ‘sleeper’ a perennial source of hope and anxiety — Whether the foxhounds in question were in fact the work of George Stubbs was not decided either by Simon Brown J or by the Court of Appeal, although Slade LJ was ‘disposed to hold’, on the evidence before the court, that it had not been shown, on the balance of probabilities, that they were the work of the 18th-century master
provincial firm of auctioneers, surveyors and estate agents, held fine art
sales in the course of their business and held themselves out as experts in the
valuation of paintings — They used a fine art consultant on a regular basis to
vet paintings — He was not an employee but an independent contractor; his
position in regard to his own and the appellants’ duty of care is described in
the judgment of Slade LJ — Like the auctioneers’ own staff he did not think
highly of the disputed paintings and, on his advice, they were valued at only
£30 to £50 for the pair; a reserve of £40 was placed on them — The price of
£840 actually realised at the appellants’ auction was thought then to be
surprisingly high, perhaps due to the impulse of a speculative bidder — The two
foxhound paintings had been accepted by the appellants for sale together with
three others offered by the respondents, to whom a receipt marked ‘For
Research’ had been given — Although the appellants in general had not been
impressed by the paintings, a saleroom assistant, who had been asked to take to
Christie’s for checking a painting possibly attributable to Martin Snape,
decided entirely on her own initiative to take the foxhound paintings there as
well — It had apparently crossed her mind that the paintings might be by
Stubbs, or at any rate in the style of Stubbs, but she did not mention these
thoughts to anybody — The three pictures were merely handed over at Christie’s
front counter and after 5 or 10 minutes they were returned, the Martin Snape
picture with a full attribution but the foxhounds with no favourable verdict —
Five months later than the appellants’ auction the pictures were sold by
Sotheby’s with full attribution to Stubbs, for £88,000 — This led to
proceedings by the respondents and a judgment against the appellants for
£76,222 (being £88,000 less £840 and certain expenses) plus interest at
£25,403, a total of £101,625 — The judge held that no competent auctioneers of
the appellants’ standing, using due care and skill, could have valued the
paintings at £30-£50 without further investigation; the visit to Christie’s,
where the pictures had been looked at only fleetingly and anonymously, not by
anyone with real expertise, did not constitute proper and sufficient research
court stated that the auctioneers’ duties were to express a considered opinion
as to the sale value of the foxhound paintings and for this purpose to take
further appropriate advice — ‘Research’ in this context did not mean an
elaborate investigation but the taking of appropriate advice — The appellants
were fairly described as general practitioners and they should be judged by the
standard of a general practitioner, not by that of a specialist, such as a
recognised expert from a leading auction house — The appropriate standard
allowed for a difference of views and a wrong view did not necessarily involve
negligence — In dealing with the fine art world the court should be cautious of
convicting an auctioneer in the appellants’ position of negligence merely
because he failed to spot a ‘sleeper’ or the potentiality of a ‘sleeper’ — The
evidence did not justify the judge’s conclusion that no competent valuer could
have failed to spot the Stubbs potential in the two foxhound paintings — The
judge was demanding too high a standard on the part of the appellants —
Although the matter did not arise for decision, Slade LJ rejected the view that
persons presenting a poor-looking picture at the counter of one of the leading
auction houses could reasonably expect to be offered on the spot the considered
opinion of a recognised expert
of the measure of damages, if liability had been established, was a difficult
one — Simon Brown J had taken it to be the difference between what the pictures
in fact realised at the appellants’ auction and their true market value at that
time, the latter being the price realised at the Sotheby sale shortly
afterwards — Slade LJ pointed out that there were a number of speculative
elements in this ‘attractively simple’ solution, but it was not a matter which
the court was called upon to decide — Appeal allowed
The following
cases are referred to in this report.
Hunter v Hanley 1955 SLT 213
Joyce v Yeomans [1981] 1 WLR 549; [1981] 2 All ER 21, CA
Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634;
[1985] 1 All ER 635, HL
Saif
Ali v Sydney Mitchell & Co [1980] AC
198; [1978] 3 WLR 849; [1978] 3 All ER 1033, HL
This was an
appeal by the defendants, the firm of Messenger May Baverstock, auctioneers
with offices at Godalming and elsewhere in Surrey, from the decision of Simon
Brown J (reported at [1989] 1 EGLR 11; [1989] 04 EG 115) in favour of the claim
of the plaintiffs (respondents to the present appeal), Penelope Luxmoore-May
and
contract in connection with the sale by auction of two paintings of foxhounds.
Rupert Jackson
QC and John L Powell (instructed by Reynolds Porter Chamberlain) appeared on
behalf of the appellants; Peter Curry QC and John Bowers (instructed by Tuck
& Mann, of Dorking, Surrey) represented the respondents.
Giving
judgment, SLADE LJ said: This is an appeal by the defendants, Messenger
May Baverstock, in an action, from a judgment of Simon Brown J given on
November 22 1988. The defendants are a firm which carries on business as fine
art auctioneers and valuers together with business as surveyors and estate
agents. They have an auction saleroom at Godalming, Surrey. It is common ground
that they hold themselves out as experts in the valuation of paintings.
As an art
dealer and consultant who gave evidence in the court below, Mr Paul Thomas,
explained, an article in the antique world which is unrecognised by the
auctioneers is commonly referred to as a ‘sleeper’. In that world, while the
possibility of spotting a ‘sleeper’ must be a perennial source of hope for
dealers, the possibility of failing to detect one must be a perennial source of
anxiety for valuers. In essence, the complaint made against the defendants in
the present case is that they negligently failed to recognise and advise the
plaintiffs, Mr and Mrs Luxmoore-May, as to the potential value of two
‘sleepers’. These are two pictures now said by the plaintiffs to be the work of
the celebrated painter of animals, George Stubbs ARA (1724-1806). The judge
held that their complaints were well founded in law. The appeal raises
questions of some general interest as to the nature and extent of the duty of
auctioneers and valuers when asked to give advice as to the value of a picture
which could be a ‘sleeper’.
The facts are
now largely common ground. I can gratefully take them for the most part (in
many instances verbatim, without further acknowledgment) from the judge’s clear
and careful judgment, though in a few instances they will require
supplementation.
In 1948 two
small paintings measuring some 5 1/2 in by 8 1/2 in were given to the first
plaintiff, Mrs Luxmoore-May, at the time of her first marriage, by an old
family friend who had a good eye for pictures and had found them in the Lanes
at Brighton. Each of them depicted a single foxhound on a rocky seashore and
was painted in oil on small squares of paper which had been laid down on
paper-covered wooden panels. I will refer to them as ‘the foxhound pictures’.
In September
1985 they hung unadmired in a dark corner of the hallway of the plaintiffs’
house. During that year the plaintiffs redecorated their house and decided to
sell some pictures. In particular, at the beginning of September, the second
plaintiff, Mr Luxmoore-May, contemplated selling three of his pictures. For
this purpose he not unnaturally turned to the defendant firm, from which he had
retired in 1979 as senior partner. Although he had been on the chartered
surveyor and land agent side of the profession, he knew well those involved in
the firm’s fine arts department. Among these were Mr Nicholson, the saleroom
manager, and Mrs Zarek, a saleroom assistant in the picture department.
On September 5
1985, Mrs Zarek came to the plaintiffs’ house to see the pictures, which the
second plaintiff was particularly interested in selling. After these had been
looked at, and very much as an afterthought, the first plaintiff decided to
show Mrs Zarek the foxhound pictures, which she had never particularly liked
and thought of no great value.
The foxhound
pictures at that time were dirty. Mr Nicholson described them as being ‘in poor
condition’ and ‘dark’. Mrs Zarek gave evidence to the like effect. Mr Thomas
said that they were ‘dirty’ and said that by this he meant ‘. . . you have
generations of household fumes — had caused an incredible layer of filth to be
on the pictures. It could be cigarette smoke. It could be oil lamp smoke. It
could be smoke from a fire. In this case there was extensive overpainting on
the paintings as well’. Mr Hancock, who will be referred to later in this
judgment and who saw the pictures in October 1985, said that he remembered one
of them ‘definitely curling’ and ‘you could see part of colours here and there
but they were very dirty and they didn’t have the sort of vivid blue at the
top. They didn’t have all the white showing through’. The first plaintiff
herself said that ‘they definitely did need cleaning and they were rather dark
pictures’.
Mrs Zarek, on
seeing the foxhound pictures, hazarded a guess that they were worth perhaps
only £30. The first plaintiff did find this small sum rather surprising. She
contemplated throwing away the paintings and merely keeping the frames. In the
event, however, Mrs Zarek took away with her, by car, the foxhound pictures and
three other pictures, giving the first plaintiff a written receipt dated
5/9/85, headed with the words ‘For Research’ and describing the item in
question as ‘Oil in Panel — Pair ‘Dogs”.
The meaning of
the phrase ‘For Research’, so far as the evidence shows, has no standard
recognised meaning when used by auctioneers and valuers. Its meaning in the
present context must depend on the nature of the arrangements made between the
plaintiffs and Mrs Zarek which led to her taking away the foxhound pictures.
The plaintiffs’ evidence was that only the first plaintiff was present during
the conversation with Mrs Zarek about these particular pictures. The first
plaintiff’s evidence as to this conversation was to the following effect: ‘I
didn’t say I would put them up for auction. I said take them back to John
Nicholson to see what he thought they were worth’. The second plaintiff
similarly explained in evidence that it was the benefit of Mr Nicholson’s
judgment that he wanted. Mrs Zarek’s evidence, however, was that the
arrangement made and explained by her to the plaintiffs was that she would take
the paintings and show them to her ‘senior consultant’; in referring to her ‘senior
consultant’ (though the plaintiffs did not realise this) she in fact meant not
Mr Nicholson but Mr Paul Thomas, who had begun working as a fine arts
consultant for the firm under an agreement of May 10 1985. The research
contemplated was clearly to take the form of further advice.
As the judge
said, there was a misunderstanding as to who would next see the pictures. He
described this misunderstanding as small and irrelevant. Whether or not that
was an accurate description of the misunderstanding, it is, in my judgment,
relevant and important to ascertain the duty which Mrs Zarek, on behalf of the
defendants, assumed in relation to the plaintiffs at the meeting of September 5
1985. As at September 5 1985, the duty was not, I think, owed in contract, since
no contract between the plaintiffs and the defendants had yet arisen, and did
not arise until the plaintiffs finally agreed to put the foxhound pictures up
for auction. It is, however, common ground that, as from the end of the meeting
on that day, the defendants had assumed to the plaintiffs responsibilities of
some sort in tort. The judge inferred that in the context of a contract to
‘research and value’ the obligation to ‘research’ could only mean ‘to carry out
whatever inquiries would appear to a competent provincial valuer to be
necessary to arrive at a proper valuation’. The reference to the making of
‘inquiries’ in this context could, I think, be a little misleading. In my
judgment, it is plain from the transcripts of evidence that what the first plaintiff
and Mrs Zarek had in mind in their conversation of September 5 1985 was not so
much the making of inquiries by Mrs Zarek as the taking of advice. The proper
inference is, in my judgment, that the responsibilities towards the plaintiffs
assumed by Mrs Zarek in this conversation on behalf of the defendants were to
express a considered opinion as to the sale value of the foxhound pictures and
for this purpose to take further appropriate advice.
The principal
question on this appeal will, I think, be whether the defendants discharged
these duties according to the standards of skill and care properly and
reasonably to be expected of them.
I now revert
to the narrative. The fine art consultancy agreement under which the defendants
had engaged Mr Thomas included the following among his duties:
(1) To vet all paintings and drawings taken in by
[the defendants] and formulate research strategy if applicable
. . .
(8) To have full access to . . . research books
owned by [the defendants’]
. . .
(10) To delegate research to [the defendants’]
staff as required or to outside bodies, eg Courtauld Institute if necessary.
Mr Thomas has
no formal fine art qualifications, but in about 1976 he started dealing in
paintings and, according to his evidence, before he was engaged by the
defendants had attended auctions daily since 1976. It has not been submitted
that, on the face of it, he was not fully competent to do the job for which he
was engaged. The defendants themselves have a fine art sale every few months.
After his engagement, Mr Thomas attended their showrooms at approximately
fortnightly intervals to examine the various pictures by then accumulated in
the showroom. It was his task to decide which pictures went into the
defendants’ fine art sales and which into their ordinary general Saturday
sales. He also had to determine how
value. Together with Mrs Zarek he examined the foxhound pictures on the next
visit he made after September 5 1985. They were part of a group of about 50
pictures which then fell to be examined. Mr Thomas recollected regarding them
as ill drawn. He said that one hound had its neck awry and its tail in the
wrong position. Though he had no specialised knowledge of Stubbs, he knew that
Stubbs ‘had been commissioned by the gentry of the land to paint their horses,
their hounds and their hunts’, but it did not occur to him that the two
foxhound pictures could be by Stubbs. He said that they did not strike him as
paintings of quality. The catalogue description which he gave them and which
was ultimately included in the defendants’ auction catalogue was:
English
school. Hounds by rocky seashore. Panel, Pair, Oil on paper. Five and three
quarter inches by nine inches.
He valued them
at £30 to £50 the pair.
Mr Nicholson
gave evidence that he saw the foxhound pictures at the time when Mr Thomas and
Mrs Zarek were cataloguing them. He recollected looking at them and said he
‘could not see any quality in them’. He told the court that at the time he knew
very little about Stubbs’ work and that it did not cross his mind that they
might be by Stubbs.
Following Mr
Thomas’ examination of the foxhound pictures, Mrs Zarek telephoned the second
plaintiff and informed him of this estimate. He said he would discuss it with
his wife. In the light of this confirmation of the earlier modest valuation,
she decided to sell the foxhound pictures.
Soon after
that, Mrs Zarek, entirely on her own initiative, took the two pictures to
Christie’s in King Street, London. Her evidence as to the reasons which
prompted her to make this visit was to the following effect. Mr Thomas had
asked her to take to Christie’s for checking another unsigned oil painting
which he thought was attributable to Martin Snape and which was indeed
eventually so catalogued by the defendants (as lot 411) and sold for £560. She
told the court, in chief:
I decided off
my own initiative, which I was allowed to do — it’s a wonderful firm. They
appreciate their staff. We’re not regimented. We’re allowed to make — within a
structure — decisions that we think will be the right thing to do and will aid
and abet the sale, my Lord. I decided, as I’d put on Mr May’s receipt that I
would research these paintings, his little dog oils, that as I was going to
Christie’s it seemed perfectly natural to me to take — they were small — to put
them in a carrier bag with some cardboard in between — and take them up with me
with the other painting in question.
She said: ‘They
had interested me slightly’. In cross-examination she told the judge that at
some time after Mr Thomas had seen the foxhound pictures and she had
subsequently spoken to the second plaintiff, the possibility crossed her mind
that they were the work of Stubbs or after or in the style of Stubbs. Although
this was her evidence as to her thinking, she never mentioned these thoughts
either to Christie’s or to the plaintiffs or to Mr Thomas or to anyone else at
the defendants. Nor, until after proceedings had been brought, did she tell any
of these people about taking the foxhound pictures to Christie’s.
Christie’s
gave no evidence by way of confirmation of the visit, and the judge found the
initial silence on her part and the inconsistencies in the defendants’ evidence
about when, and the circumstances in which, she came to reveal the information
‘most troubling and not easily explained’. In many ways he regarded Mrs Zarek
as an unsatisfactory witness. Nevertheless, in the end, albeit with hesitation,
he concluded that she did take the two pictures to Christie’s. There has been
no challenge to that finding of fact on this appeal.
The only
evidence before the court as to what took place at Christie’s was that of Mrs
Zarek, whose evidence was to the following effect. She went in the usual way to
Christie’s front counter and there handed over the three pictures. She asked
for views on the Martin Snape and also on the foxhound pictures. They were
taken from the front counter to a department behind. She waited some five to 10
minutes. When they were brought back, the Snape was given its full attribution,
but nothing favourable was said about the foxhound pictures.
Shortly before
the auction sale, which was due to take place on October 10 1985, the
defendants sent to the plaintiffs a copy of the sale catalogue, asking to be
notified of any reserve prices required. A reserve of £40 was agreed. The
foxhound pictures were listed in the catalogue as lot 394 out of a total of
some 417 lots.
On October 9
1985 the defendants held an auction preview. By that time the defendants had
available to those members of the viewing public who wished to see it a
marked-up catalogue which showed £30-£50 as the price which the foxhound
pictures were estimated to fetch. They were not conspicuously displayed at the
preview. One was on the floor and another was hung low in a corner.
Nevertheless, they attracted from a dealer named Mr Chrestian a commission bid
of ‘£800 plus one’, that is to say, an instruction to the defendants to bid as
far as necessary up to, but not exceeding, the first bid beyond £800 in order
to secure the lot. Mr Nicholson was surprised by this bid. He described Mr
Chrestian as a ‘runner’ and something of a speculator.
On October 10
1985 the sale was due to start at 11 am. The defendants’ catalogue had been sent
to over 1,000 people or firms who might be interested in attending the auction,
including most of the main picture galleries and dealers in London and
elsewhere. Mr Thompson, a partner in the defendants’ firm who conducted the
auction, said in evidence that he would have expected the number of persons
present at the auction to have been ‘probably 150 to 200 spread over the course
of the sale’.
A number of
dealers were present. Among them was Mr Mark Hancock, who has a gallery in
Westbourne Grove. The judge described Mr Hancock’s reaction to the foxhound
pictures as follows:
Some 10 days
before the defendants’ sale Mr Hancock had bought for £520 at auction at
Worthing an unattributed painting variously known as ‘Dapple Grey Stallion in a
Landscape’ and ‘Son of Old Sterling’ (‘Stallion’) which he was convinced — and
events proved rightly convinced — was by George Stubbs. When at the defendants’
showroom he saw the foxhounds, his initial astonished reaction was ‘They come
in threes’. He examined them very carefully. One he took out of its frame. He
analysed them from every standpoint. Although he described them as definitely
having a certain presence and authority, he reflected that there are a lot of
copies of Stubbs in existence and that typical Stubbs’ heads such as these
could have been taken from a Stubbs engraving or painting. Parts of the
pictures he thought well painted; on the other hand he knew that Stubbs was
anatomically very good and he felt that there were a number of detailed
anatomical criticisms to be made of these particular dogs. Having looked at the
pictures a number of times during the hour or so that he was there, he finally
decided, weighing it all up, that he was not happy ‘to pay a lot of money for
the pictures’. He concluded that they were probably not genuine but rather
copies from the first half of the 19th century. The final point that in the end
decided him not to bid was Mrs Zarek’s confirmation of what he had already been
told by another dealer who was showing interest in the pictures, namely that
the pictures had been taken to Christie’s. Mr Hancock recalls specifically
asking Mrs Zarek about this lest the other dealer were inventing it in order to
try to put him off bidding. In the result, Mr Hancock commissioned one or two
small bids for other lots and then left before the sale began.
When Mr Thompson
came to invite bids for the foxhound pictures, Mr Nicholson began the bidding,
acting as commission clerk on behalf of Mr Chrestian, probably, as he thought,
at a figure just above the reserve price of £40. Thereafter the bidding
progressed slowly in £20 bids. Out of all the persons present at the auction,
Mr Nicholson and a Mr Rogers were the only bidders. Mr Rogers was a dealer from
Bath whom the defendants said they knew as a speculative bidder. Mr Nicholson’s
final bid was £820 (£820 plus one). Mr Rogers then bid £840 and thus became the
purchaser at that price, which Mr Nicholson thought was a very good one for two
pictures as wholly undistinguished as he regarded them.
After the
sale, the defendants in the usual way sent a post-auction advice to the
plaintiffs notifying them of the prices realised for their pictures. As to the
subsequent events up to March 1986, I cannot do better than adopt the judge’s
findings:
In about
December 1985 the pictures were taken by a dealer (whether or not by Mr Rogers
is neither known nor material) to Sotheby’s. They were seen there by Mr David
Moore-Gwyn, a director and since 1981 in charge of Sotheby’s British painting
department specialising in the period 1500 to 1850 Mr Moore-Gwyn immediately
recognised the foxhounds as related to a celebrated Stubbs painting at Goodwood
House, a large painting known as ‘The Third Duke of Richmond with the Charlton
Hunt’ (‘the Charlton Hunt’) painted in 1759-60. The two foxhounds are the same
as two of the more prominent of 20-odd hounds pictured in the Charlton Hunt.
These two, moreover, together with a third foxhound also pictured in the
Charlton Hunt were published by Stubbs as individual engravings in 1788, a
fourth and fifth being engraved as a pair. Taking it at this stage shortly, Mr
Moore-Gwyn consulted a number of colleagues and others about the foxhounds. One
such was John Basket, Paul Mellon’s agent in London and the author of a number
of books. Mr Basket thought the paintings genuine. Another of those consulted,
however, was Mrs Judy Egerton, universally acclaimed as the world’s greatest
expert on George Stubbs. She has recently retired after 14
that she worked for Paul Mellon in America, in 1978 cataloguing his collection
of British sporting and animal paintings. This included some 38 Stubbs, the
largest collection of his work in the world. In 1984 she catalogued 190 works
for a major exhibition of George Stubbs held at the Tate Gallery. She has for
some years past been engaged on a catalogue raisonne of all Stubbs’ work.
Suffice to say that her qualifications and experience amply justify her
reputation as the world’s leading expert; that being acknowledged indeed by the
plaintiffs’ experts.
It is Mrs
Egerton’s clearly expressed present view that these two foxhounds are not in
fact by Stubbs, but rather are honest copies competently painted in the 19th
century probably by someone with a great admiration for Stubbs. She believes
there is only about a 15% chance of these paintings being genuine, an 85%
chance that they are copies. I shall return later in this judgment to that
aspect of her evidence. At present I am concerned rather with the views she
expressed to Mr Moore-Gwyn. These, I am satisfied, were less emphatic. Mr
Moore-Gwyn tells me, and I accept, that although Mrs Egerton was clearly unsure
about the pictures and regarded them as ‘throwing up a lot of problems’ about
their proper attribution, she had really not made up her mind about them finally
one way or the other. Mr Moore-Gwyn accordingly concluded, I believe
justifiably, that Sotheby’s had to come to their own decision. In the result,
he catalogued the pictures for Sotheby’s auction sale on March 12 1986 with
full attribution, namely to George Stubbs ARA. Their glossary of cataloguing
terms explained that such form of attribution means ‘in our opinion a work by
the artist’. Had they described the pictures as ‘attributed to George Stubbs’
that would have meant ‘in our opinion probably a work by the artist but
less certainty as to authorship is expressed than in the preceding category’.
The catalogue contained coloured photographs of the foxhounds. Each was
expressed to have an estimated value of £18,000 to £24,000. Their catalogue
entry reads as follows:
‘These two
studies relate directly to the large composition showing the 3rd Duke of
Richmond with the Charlton Hunt; one of three large canvases which Stubbs
painted circa 1759 for the Duke and which were the artist’s first important
commission after his arrival in London in 1758. In the large picture the first
hound appears directly to the left of the Duke himself whilst the second
appears to the right of his brother, Lord George Lennox.
‘As Judy
Egerton has pointed out in the Catalogue for the 1984 Stubbs Exhibition, the
Charlton Hounds were perhaps the first thoroughbred pack which the artist had
the chance to observe and they are portrayed with exactitude and individuality.
It is likely that Stubbs made individual studies of them and portraits of five
of the hounds (including those shown in these two studies) appear in his
engravings of foxhounds published in 1877 (Stubbs Exhibition nos 181-184). A
small drawing for one of these, showing a foxhound on the scent, is in the Paul
Mellon Collection (Stubbs Exhibition no 170).
‘The
composition of the large Goodwood hunting picture, gives the impression of a
work made up of individual studies with each hound apparently frozen in a
particular stance and placed somewhat haphazardly on the canvas. It is possible
that these two studies, together with another picture, also derived from the
Goodwood composition. The study of the huntsman with two hounds which is now in
the Mellon Collection (and which is also made up with pieces of paper), could
have been used by Stubbs to help him work out his first large composition.’
As the judge
said, these two last paragraphs were criticised by the defendants on the
grounds that they created the false impression that Mrs Egerton was supporting
the attribution. The judge accepted that they were certainly ambiguous and
could be read as falsely suggesting that her 1984 catalogue entry applied to
the foxhound pictures themselves. Nevertheless, he acquitted their author, Mr
Moore-Gwyn, of any intention to deceive. The defendants also criticised
Sotheby’s for giving the pictures an unqualified attribution, after having
discussed them with Mrs Egerton. However, it seemed clear to the judge that her
doubts had been hardening over recent years. He reached the clear conclusion that
Sotheby’s were entitled to catalogue the foxhounds as they did for their March
1986 sale, saying:
Although it
was a bold decision to attribute in the language of certainty rather than
probability, I am satisfied that it was not improper.
In passing, I
should mention that in argument before us Mr Rupert Jackson QC, on behalf of
the defendants, criticised this part of the judgment on the grounds that the
relevant question was not whether Sotheby’s decision was proper, but whether it
was reasonable. He submitted that, particularly in view of Mrs Egerton’s doubts
about the attribution, the decision was not a reasonable one. On all the
evidence, however, I cannot for my part say that the attribution was either
improper or unreasonable. Whether it was correct is a different matter.
The Sotheby’s
sale took place on March 12 1986. There is no doubt that by that time the two
foxhound pictures had been considerably spruced up. I will refer to the
evidence on this point later in this judgment. In striking contrast with what
had happened at the defendants’ auction sale, a lot of interest was shown in
the pictures. This was hardly surprising, if only in view of Sotheby’s full
attribution to Stubbs. However, while Mr Moore-Gwyn accepted in evidence that,
in general, the attribution, and degree of attribution, given by Sotheby’s to a
painting in a catalogue may crucially affect its likely sale value, he
expressed the view that, on a sale of this sort of level, buyers would make up
their own minds.
The successful
bidders at the Sotheby’s auction were Spinks and at a total price of no less
than £88,000. The pictures next appeared fully restored at Spinks’ gallery in
June 1987. They are pictured in Spinks’ brochure of that date. The inset was by
then invisible. Overpainting had been removed and the colours were clearly
showing. They were quickly shown to Paul Mellon (whose London agent, Mr John
Basket, had previously been consulted by Mr Moore-Gwyn and had expressed the
view that the pictures were genuine). The price paid on this sale is unknown,
but, as the judge said, it was presumably a good deal more than £88,000.
Meantime, on
June 30 1986, The Times newspaper had contained an article referring to
the sale of the foxhound pictures and entitled ‘Dealers make a killing from Stubbs’.
The plaintiffs no doubt read it with dismay. On September 2 1986 they issued
proceedings against the defendants. Mr Thomas was subsequently introduced into
the proceedings as a third party, but in due course the third party proceedings
were settled and he was called to give evidence for the defendants.
The learned
judge identified three main questions as falling for his decision:
1 Could a competent auctioneer of the
defendants’ standing have valued these paintings as the defendants did, given
the exercise of proper skill and care?
2 If not, were the pictures taken to Christie’s
for a second view?
3 If so, did that additional step satisfy the
defendants’ obligation to exercise proper skill and care in researching the
paintings for the purpose of valuation?
The judge
answered the first of these questions ‘No’, the second ‘Yes’ and the third
‘No’. In the result, he gave judgment for the plaintiffs in a sum of £101,625,
representing £76,222 for damages, £25,403 for interest thereon at the rate of
15% per annum from September 2 1986 with costs to be taxed. The sum of £76,222
was calculated basically by taking the difference between the auction prices
realised respectively by the defendants and by Sotheby’s, less the expenses of
achieving such sales, though there may have been other minor agreed
adjustments.
The form of
the issues identified by the judge as falling for his decision was, of course,
affected by the course of the arguments submitted to him. At that stage the
question whether Mrs Zarek had taken the foxhound pictures to Christie’s was a
hotly contentious one. Its resolution by the judge in favour of the defendants
necessitates a somewhat different formulation of the issues which this court
has had to consider. Furthermore, this formulation should, in my judgment, also
take account of the nature of the duties towards the plaintiffs assumed on
behalf of the defendant firm by Mrs Zarek, who was the only representative of
the defendants with whom the plaintiffs had any material dealings. The defendants
must take the blame for any default on her part in the discharge of the duties
assumed by her towards the plaintiffs on behalf of the firm. They are, however,
entitled to take credit for any steps which she took towards discharge of that
duty, which included the seeking of advice first from Mr Thomas, and second
from Christie’s.
I would
formulate the issues which have been argued on this appeal as follows:
(A) What relevant duties towards the plaintiffs
did Mrs Zarek undertake on behalf of the defendant firm?
(B) As a matter of law, what is the standard of
skill and care which the plaintiffs had the right to expect of the defendants
in the discharge of those duties?
(C) Would the defendants, through Mrs Zarek, have
discharged their duties towards the plaintiffs by seeking and transmitting the
advice of Mr Thomas?
(D) If the answer to issue (C) is ‘No’, did the
defendants, through Mrs Zarek, complete the discharge of their duties towards
the plaintiffs by taking the pictures to Christie’s and seeking their views?
(E) If liability is established, what is the
proper measure of damages?
(F) Were the foxhound pictures in truth the work
of Stubbs?
Issue (A)
I have already
expressed the conclusion that the relevant duties
were duties to express a considered opinion as to the sale value of the
foxhound pictures and for this purpose to take further appropriate advice.
Issue (B)
The defendants
are a firm of provincial auctioneers and valuers who deal with many kinds of
chattels. Mr Royle, an expert witness called by the plaintiffs, fairly
described them as ‘general practitioners’. In the court below, as in this
court, the defendants, relying on an analogy with medical general practitioners,
cited most authoritatively the decision of the House of Lords in Maynard
v West Midlands Regional Health Authority [1984] 1 WLR 634. There Lord
Scarman endorsed the following passage from Lord President Clyde’s judgment in Hunter
v Hanley 1955 SLT 213 (at p 217):
In the realm
of diagnosis and treatment there is ample scope for genuine difference of
opinion and one man clearly is not negligent merely because his conclusion
differs from that of other professional men . . . The true test of establishing
negligence in diagnosis or treatment on the part of a doctor is whether he has
been proved to be guilty of such failure as no doctor of ordinary skill would
be guilty of if acting with ordinary care . . .
The defendants
submitted to Simon Brown J that they were to be regarded as akin to general
practitioners and that:
(1) the required standard of skill and care
allows for differing views, and even a wrong view, without the practitioner
holding that view (necessarily) being held in breach of his duty;
(2) the standard is to be judged by reference
only to what may be expected of the general practitioner, not the specialist —
here provincial auctioneers rather than one of the leading auction houses; and
(3) compliance with the required standard is to
be judged by reference to the actual circumstances confronting the
practitioners at the material time rather than with the benefit of hindsight.
The judge
‘unhesitatingly’ accepted these propositions and so would I. In my judgment,
those propositions, read together with the passage from the Lord President’s
judgment, set out more or less all that needs to be said as to the nature of
the legal duty falling on the defendants in the present case. I would merely
add one important rider. The valuation of pictures of which the artist is
unknown preeminently 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’ (see and compare the observations of Lord
Wilberforce in relation to barristers in Saif Ali v Sydney Mitchell
& Co [1980] AC 198 at p 214F-G).
In my
judgment, the same standards fall to be applied in considering whether Mr
Thomas personally was negligent in relation to the plaintiffs.
Issue (C)
Mr Thomas was
not the servant or agent of the defendants. It is common ground that his
relationship towards them was that of an independent contractor. Strictly,
therefore, the defendants could incur no vicarious liability for Mr Thomas’
negligence, even if there were negligence on his part. However, where a
personal duty of care exists, that duty is not discharged by employing a
contractor who imperfectly performs it (see Halsbury’s Laws of England
(4th ed) vol 16, para 757). In the present case, in my judgment, the defendant
firm, through Mrs Zarek, had assumed a personal duty of care to the plaintiffs.
In my judgment, the defendants could claim to have discharged their duties of
care towards the plaintiffs simply by seeking and transmitting the advice of Mr
Thomas if, but only if, he personally was not negligent in expressing his
opinion as to the value of the foxhound pictures.
The judge
thought that Mr Thomas had been negligent, and indeed expressed trenchant
criticism of him, saying:
In my
judgment, the great weight of evidence in the case leads irresistibly to the
conclusion that no competent valuer could have fixed confidently upon a
valuation of £30 to £50 without need for any further investigation, as Mr
Thomas did here.
The judge’s
reasons for concluding that there was negligence on the part of Mr Thomas
appear from his judgment. They were to the following effect. It is the duty of
a general practitioner to guard against his own want of specialist knowledge
and to exercise a proper caution in arriving confidently at his own conclusion.
He must know
his own limitations. Conversely, the client is entitled to the benefit of the
practitioner’s uncertainty: he can then decide what to do next . . .
The very fact
that at the auction of October 10 1985 two dealers were prepared to back their
hunches to the extent of over £800, bidding against one another, in the judge’s
view indicated that these two dealers plainly recognised that further
‘researches’ were worthwhile. In this context, he attached great weight to the
evidence of Mr David Royle FRICS who, between 1967 and April 1988, had been a
partner of Hollingsworths, a firm of valuers and auctioneers. The judge dealt
with his evidence and that of Mr Moore-Gwyn as follows:
In short, I
have no doubt that Mr Royle is right in his view that all who run auction
houses should be capable of recognising paintings in the style of George Stubbs
and should know where to turn for specialist advice. Furthermore, that there
were sufficient indications in these paintings to have alerted any competent
valuer. Mr Royle in fact went further and suggested that even a general
practitioner, if competent, would have known enough about Stubbs to know of the
Charlton Hunt at Goodwood House. This I am not inclined to accept. It is
certainly not a view shared by Mr Moore-Gwyn. He would not criticise a general
practitioner for not knowing the foxhounds were by Stubbs if he did not know of
the Charlton Hunt — it being implicit in this that he might well not. But Mr
Moore-Gwyn also referred to the foxhounds’ obvious quality and I do accept Mr
Royle’s evidence that no competent practitioner could have missed the signs of
merit in these paintings and failed to recognise that they were worthy of
further investigation. In the first place, he points to their being extremely
well drawn by a very competent artist. Second, they are in many respects
anatomically realistic; and this feature, coupled with their subject-matter, is
typical of Stubbs. In those circumstances, even without any specialist
knowledge whatever of Stubbs work, a competent valuer could not but have seen
in these foxhounds sufficient to merit at the very least further investigation,
and this in turn should have led sooner or later to their recognition as
obvious candidates for attribution to Stubbs. True, Mr Royle never saw the
foxhounds themselves but only the coloured illustrations of them, first in the
Sotheby’s catalogue and later, after restoration, in Spinks’ brochure. True,
also, both Mr Hancock and Mrs Egerton make a number of detailed criticisms of
the painterly skills displayed in the modelling of the dogs. As Mrs Egerton
puts it, the whole mystery of these paintings is that the outline of the
movement and posture of the dogs are clearly Stubbs, but what is within the
outline is not especially well handled — it is indeed fairly crude. She refers
to the texture of the dog’s coat, the contours of the muscles, the shape of the
body beneath the skin and so on.
In this
context, the judge concluded:
All that said,
however, I have reached the clear conclusion that any competent valuer must
inevitably have appreciated in these pictures a substantially greater potential
than ever crossed Mr Thomas’ mind. Either he slipped up on this occasion,
perhaps having insufficient time to study and appreciate the true merit and
significance of these paintings. Alternatively, his experience and expertise
may frankly be less than is properly required even of a provincial fine art
valuer. He had, after all, at the time only nine years’ experience as a
self-employed picture dealer with no formal fine art training of any sort. And
it is pertinent to reflect in this regard that even Mrs Zarek, on her evidence,
recognised in these paintings a possible connection with Stubbs.
Lest this
judgment be thought to have any wider application, it is important that I make
entirely plain that I am far from concluding that every auctioneer who misses a
‘sleeper’ is on that account necessarily to be regarded as negligent. Each case
will depend on its own individual facts. The question here is whether there was
enough about these foxhounds to make it unreasonable for a competent valuer to
be sure he was right when in fact he was so dramatically wrong. In my judgment
there was.
While the
judge never went on to find that the paintings were in fact by Stubbs, these
findings as to the ‘potential’ of the pictures lend powerful support to the
plaintiffs’ case. The plaintiffs naturally place particular reliance on the
judge’s findings that ‘there were sufficient indications in these paintings to
have alerted any competent valuer’, that they had ‘obvious quality’, that ‘a
competent valuer could not but have seen in these foxhounds sufficient to merit
at the very least further investigation’, and that ‘any competent valuer must
inevitably have appreciated in these pictures a substantially greater potential
than ever crossed Mr Thomas’ mind’. Mr Peter Curry QC, on the plaintiffs’ behalf,
submitted with force that these were findings of fact which this court would
not be entitled to disturb.
I should say
at once that, though the judge made a number of references to the ‘obvious
quality’, ‘potential’ etc of the pictures
referring to Stubbs potential. That is what the plaintiffs themselves clearly
had in mind. Para 8 (e) of the reamended statement of claim specifically
asserted that the defendants ‘should not have considered that the painting was
by any person other than Stubbs or his school’. And this was the case which the
defendants came to court to meet.
By the time of
the trial the fact that the two foxhound pictures had Stubbs potential in the
art world was obvious and undeniable. Mrs Egerton (whose qualifications and
experience ‘amply justify her reputation as the world’s leading [Stubbs]
expert’) gave evidence that in her opinion there was only a 15% chance of the
foxhound pictures being genuine. On the other hand, by that time Sotheby’s had
been prepared to make a full attribution of the two pictures to Stubbs.
Furthermore, Spinks (and subsequently Mr Mellon), having taken any advice which
they thought appropriate, presumably regarded this attribution as correct. In
addition, an expert called by the plaintiffs, Dr Fountain, expressed the view
on balance that the two pictures were likely to have been painted by Stubbs. As
to the existence of Stubbs potential, the Sotheby’s attribution and the sum of
£88,000 subsequently achieved at the Sotheby’s sale by that time spoke for
themselves.
The question
now under consideration, however, is not whether the two pictures in fact had
Stubbs potential but whether the defendants, through Mr Thomas, were negligent
in failing to spot it. In the case of ‘sleepers’, as the learned judge himself
clearly appreciated, it is all too easy for the court or anyone else to be wise
after the event.
Mr Curry cited
the names of a number of persons who at one time or another recognised the Stubbs
potential of the foxhound pictures. Mrs Zarek herself had sufficient doubts
about them to take them to Christie’s. Mr Hancock said that his initial
reaction on seeing them was that ‘they could be by Stubbs’, though in the end
he was not sufficiently happy with them to pay a lot of money for them. Mr
Chrestian and Mr Rogers must have both seen some potential quality in them at
the defendants’ auction. Mr Moore-Gwyn, who saw the pictures in December 1985
after they had been spruced up, concluded that Stubbs was the artist. Mr Royle
and Dr Fountain, who never saw the original pictures but saw the Sotheby’s
catalogue, showing the photograph of the spruced-up pictures, both spoke of
their quality. Mrs Egerton thought there was a possibility of their being by
Stubbs. This list is an impressive one. Mr Curry submitted that the court
should be particularly slow to depart from Mr Royle’s opinion that all who run
auction houses should be capable of recognising paintings in the style of
George Stubbs and that there were sufficient indications in these paintings to
have alerted any competent valuer. He reminded us of the observations of
Brandon LJ in Joyce v Yeomans [1981] 1 WLR 549 at p 556
concerning the approach of this court to expert evidence.
Though I have
not found this part of the case entirely easy, I have come to the clear view
that the evidence does not justify the judge’s conclusion that no competent
valuer could have failed to spot the Stubbs potential of the two foxhound
pictures. The factors which I regard as particularly relevant in this context
are the following:
(1) Dogs and other animals were subjects favoured
by many artists besides Stubbs over the period in which the two foxhound
pictures are thought to have been painted. Mrs Egerton indicated that she could
have named 60 or 70 other such artists. Every valuer of pictures is therefore
likely to encounter numerous horse and dog paintings by insignificant or
unknown artists of the 18th and 19th centuries.
(2) Furthermore, in country salerooms copies
of the works of original artists abound.
(3) A substantial volume of informed evidence
indicates the view that these two foxhound pictures are not themselves of high
quality and there are a number of anatomical errors.
(4) Mr Moore-Gwyn’s evidence shows that his own
recognition of the Stubbs potential depended heavily on his personal knowledge
of ‘the Charlton Hunt’. It has, however, not been suggested in this court that
either the defendants or Mr Thomas ought to have possessed this particular
knowledge.
(5) While Sotheby’s photographs of the two
pictures as spruced up (upon which Mr Royle and Dr Fountain had to base their
opinions) present a glossy and pleasant appearance (at least to a lay, inexpert
eye such as mine), the unchallenged evidence is that in September-October 1985
they were dirty and overpainted. The plaintiffs themselves clearly thought
little of them, even as mere decoration for a wall. The first plaintiff, on
being recalled to give evidence and being shown the Sotheby’s photographs, said
under cross-examination that ‘these pictures look to me exactly the same’. Mr
Thomas, however, who actually saw the pictures at Sotheby’s, said they were ‘in
a far different condition to when they left Messengers’. He added: ‘I noticed
that the overpaint had largely been removed as had the surface dirt. I must
stress . . . a cosmetic job had been done on them. They had not been fully
restored.’ Mr Hancock, who also saw them
at Sotheby’s, said he remembered them in October 1985 being ‘much more dirty than
that’ and that they looked in ‘considerably better condition at Sotheby’s’. The
judge concluded that ‘there is no real relevance to be attached to the altered
condition of the pictures between the respective auction sales’. In my
judgment, however, particularly in the light of the evidence of Mr Hancock (by
whose evidence the judge was ‘generally impressed’) the poor condition of the
pictures in September-October 1985 must be regarded as one of the relevant
factors in determining whether the allegation of negligence on the part of the
defendants, said to have occurred at that time, has been proved.
(6) To my mind very significantly, at the auction
of October 10 1985, though no evidence as to exact numbers is available, it is
clear that many dealers would have been present and the bidding started at a
very low figure, in the region of £40. Of all these dealers, only two were
prepared even to bid for the foxhound pictures. Mr Hancock, who only 10 days
before had bought a picture in the belief that it had Stubbs potential, having
closely examined the foxhound pictures, was not willing to put in any bid for
them at all. Furthermore, this was not a case where the bidding which did take
place was completed in a matter of seconds. To the irritation of the auctioneer,
it advanced in slow, small stages, leaving plenty of time for any other dealers
present who might have been remotely interested in the pictures to reconsider
their position and put in a bid; but none of them thought it worth while.
In the light
of these six factors, I am of the opinion that the learned judge, with all
respect to him, demanded too high a standard of skill on the part of the
defendants and of Mr Thomas in concluding that no competent valuer could have
missed the signs of Stubbs potential. In my judgment, the question whether the
foxhound pictures had Stubbs potential as at September-October 1985 was one as
to which competent valuers, and indeed competent dealers, could have held
widely differing views. It has not been argued that a valuation of £30-£40
would have been too low if these pictures were simply to be regarded as objects
to be hung on a wall without Stubbs potential. For these reasons, I am of the
opinion that negligence on the part of Mr Thomas has not been established and
accordingly that negligence on the part of the defendants would not have been
established, even if Mrs Zarek, after taking Mr Thomas’ advice, had taken no
further advice in relation to the pictures.
In the light
of this conclusion, the remaining issues do not, in my judgment, arise.
However, I will make some brief observations on each of them.
Issue (D)
In the event,
as the judge found, Mrs Zarek, after consulting Mr Thomas, subsequently took
the pictures to Christie’s and handed them over the counter for a view, in the
manner which I have already described.
The judge, in
considering the relevance (if any) of this visit to the defendants’ liability,
attached great weight to the obligation to ‘research’ undertaken by Mrs Zarek.
I have dealt with this point earlier in this judgment. In some contexts the
word ‘research’ will import an elaborate investigation. This was not, in my
judgment, the sense in which Mrs Zarek could reasonably have been understood as
using the word in her conversation with the first plaintiff; it meant no more
than the taking of appropriate advice.
Mr Royle, the
plaintiffs’ own expert, had reported that he would have expected the defendants
‘to have taken these pictures to an expert source (such as one of the main
London auction houses or the Tate Gallery) for a second opinion’. In
cross-examination, he was asked to assume that the auctioneers, having thought
the paintings not valuable but justifying further examination, had handed them
in to Christie’s and that they came back without anything said to alter the
original view of them. When asked whether in his opinion such an auctioneer had
discharged his duty, he replied, ‘Yes’.
In contrast
with this evidence, Mr Hancock, when asked by the judge what he would have done
if he had received the foxhound
which the judge summarised as follows:
If I was an
independent witness, I would say that I would check them out. I would take them
to an expert, to the Witt Library or the Courtauld Institute. I might have
taken them to Sotheby’s and Christie’s. There are one or two people there that
I know. It depends who you get there. It’s a bit difficult just to go in. It’s
very difficult to have a top expert there all the time.
The judge
commented:
The point is
surely obvious: if you merely hand over paintings to Christie’s for five or 10
minutes, it is a matter of sheer chance whether they come to be seen by anybody
of true expertise.
He thought
that Mr Royle’s answers postulated that whoever handed in the pictures to
Christie’s ‘took the trouble to discover whether or not they had indeed been
seen by a real expert’. He accepted a criticism of Mrs Zarek by the plaintiffs’
counsel for failing to mention to Christie’s her own thoughts as to the
possible Stubbs attribution. He concluded that:
a short visit
to Christie’s counter, neither communicating one’s thoughts about the
paintings’ potential nor discovering anything as to whose adverse opinion one
is taking away, does not constitute reasonable skilful and careful research
such as the defendants undertook to carry out . . . ; it cannot I believe truly
be in the interests of provincial auction houses to conclude otherwise. If so
casual a visit to Christie’s (for which Christie’s themselves, however
negligent, could never become liable) could satisfy their obligations in all
cases then no rational person with a picture to sell would ever contemplate
disposing of it through a provincial house.
The visit to
Christie’s was not, of course, the first or only step which the defendants had
taken towards discharge of their obligation to take appropriate advice as to
the valuation of the foxhound pictures. They had already sought and obtained
the advice of their fine art consultant, Mr Thomas.
As I read his
judgment, the judge considered that Mrs Zarek, on presenting the pictures at
Christie’s counter, should have (a) mentioned that she thought they might have
Stubbs potential; (b) specifically asked that they should be looked at by an
identified Stubbs expert on Christie’s staff.
It appears
from Mr Hancock’s evidence that he himself would have adopted this course while
he was cataloguing pictures at the auction room of Phillips — a job he had
previously done for three and a half years. However, it would not be surprising
if, while doing that job, he was in a position to demand and expect specialist
assistance from the staff at Christie’s. In my judgment, to expect a provincial
auctioneer to take this course in any case where, by way of ‘back-up’ to the opinion
of his own expert fine arts consultant, he presents a poor-looking picture at
the counter of one of the big London auction houses, just in case it has
potential as the work of Stubbs or of some other well-known artist, would be to
impose an unreasonably high duty on the auctioneer. Correspondingly, it would
impose an unreasonably heavy burden on the London auction houses. They offer
these over-the-counter services gratuitously and could not reasonably be
expected to offer the views of an identified expert in response to each one of
the very many inquiries which are made of them. Though there is no evidence
before us to support the statement made in the last sentence, this court can, I
think, properly draw this inference from its own judicial knowledge and as a
matter of common sense.
I do not, with
respect, think that the judge was justified in reading Mr Royle’s evidence as
postulating that whoever handed in the pictures to Christie’s took the trouble
to discover whether or not they had been seen by a ‘real expert’. That
evidence, in my judgment, should be read as meaning what it said.
If issue (D)
fell for decision, I would accordingly answer it in favour of the defendants.
Issue (E)
If liability
had been established, the question of quantum of damages would, I think, have
been a difficult one. In the course of the argument, it became more or less
common ground that the damages would fall to be measured as at October 10 1985,
when the first auction sale took place pursuant to the defendants’ advice.
The judge
concluded:
The measure
of damage in this case is, I conclude, the difference between what the
foxhounds in fact realised consequent upon the defendants’ breach of contract
and what was their true open market value at that time. What better guide could
there be to that value than the price at which these paintings happened to be
knocked down at Sotheby’s so shortly afterwards? The price which the international art market
was willing to pay was surely prima facie the best evidence of the
foxhounds’ value.
The
plaintiffs’ argument in support of this conclusion ran briefly on the following
lines. Mr Curry referred us to Mr Luxmoore-May’s evidence where he indicated
that if advice had been given that these were potentially valuable paintings,
he would have taken them to Sotheby’s at Billingshurst. From there, it was
suggested, the pictures would have been sent up to Sotheby’s in London. There
is no reason to suppose, it was said, that they would not then have fetched
£88,000 or more, but on this occasion with the plaintiffs as the vendors. In
these circumstances, it was submitted that the plaintiffs were deprived by the
defendants’ alleged negligence of the opportunity to effect a sale at this
price, and the Sotheby’s sale price was the proper yardstick.
In answer,
however, Mr Jackson pointed out a number of speculative elements in the
plaintiffs’ attractively simple submissions on this issue. Would Sotheby’s,
Billingshurst, have spotted the Stubbs potential and for this reason sent them
to London? If they had been sent to
London, would Mr Moore-Gwyn or some other representative of Sotheby’s,
have dealt with them? (Mr Moore-Gwyn in
his evidence had indicated that, in relation to the Stubbs potential, much
depended on his spotting the Goodwood connection.) Would such other representative of Sotheby’s
have given the pictures the full attribution to Stubbs given them by Mr
Moore-Gwyn, which is criticised by the defendants and is said by them
substantially to have enhanced the sale price?
Enough has
been said to show that, even if they had established liability, the plaintiffs’
right to recover damages on the basis of the price achieved on the Sotheby’s
sale (as opposed to a much smaller price) would have been no means clear cut;
and I would not like them to think otherwise.
Issue (F)
The last
question, to many the most interesting of all, is: were the foxhound pictures
in truth the work of Stubbs?
The judge
summarised the opposing evidence on this point with his customary lucidity. In
the end, however, for reasons which he explained, he concluded that this was
not an issue on which he was required to make a decision.
Mr Jackson
invited us to make an affirmative finding that, on the balance of
probabilities, Stubbs was not the artist. He submitted that a decision
on this point would be relevant not only to the issue of damages (if any) but
also to the issue of liability. Mr Curry, in response, invited us to make an
affirmative finding that Stubbs was the artist. Both counsel referred us
to powerful evidence in support of their respective submissions in what I, for
my part, found a fascinating exercise.
Tempting
though it is, however, it would in all the circumstances be wrong to prolong
this judgment by traversing this evidence. It will perhaps suffice to say that,
if it had been necessary for this court to decide the point (which I think it
is not) I would have been disposed to hold that the plaintiffs had not, on
the evidence before the court, proved that on the balance of probabilities
the two pictures were the work of Stubbs. The judge himself said: ‘It may be
thought that the overall balance of the argument appears to lie in favour of
Mrs Egerton’s conclusion.’ I infer that,
if he had had to decide the point, his view would probably have been the same.
A number of experts, however, possibly with more information and certainly with
more specialised knowledge than is available to this court, have taken a
contrary view. As with many other ‘sleepers’, perhaps the mystery will never
conclusively be solved.
Conclusion
The plaintiffs
in this case deserve sympathy, as does anyone who has unwittingly parted with a
‘sleeper’ at a relatively low price. However, while the opinion of the
defendants and those whom they consulted may have been an erroneous one,
negligence in law on their part has not, in my judgment, been established. The
standard of care and expertise expected of them by the learned judge in the
performance of the duties assumed by them towards the plaintiffs was, in my
judgment, too high.
I would
accordingly allow this appeal and dismiss the plaintiffs’ action, at the same
time expressing gratitude to counsel on both sides for their excellent and
helpful arguments.
This
litigation between parties who formerly enjoyed a close and long-standing
relationship has arisen out of a most unhappy set of circumstances. I am glad
to record that some months ago the defendants, by their solicitors, indicated
that whatever the outcome
either in this court or the court below.
Agreeing, MANN
LJ said: The defendants are a provincial firm. They are not a leading
London auction house and this must be well known to the first plaintiff. They
accepted the two paintings by the agency of Mrs Zarek, who marked the
acceptance ‘For Research’. This phrase in this context did not mean what an
academic would understand by the term but meant that an opinion would be taken
as to the paintings. An opinion was taken. It was taken from Mr Thomas. So far
as the defendants are concerned, Mr Thomas’ competence cannot be doubted. Mr
Thomas did not see the Stubbsian connection. Mrs Zarek, who had a feeling about
the paintings, took them to Christie’s for an appraisal. They were handed back
to her without comment. Some suggestion is made that the anonymous person who
saw the pictures at Christie’s may not have been an expert in regard to the
work of George Stubbs. However, Christie’s are expert and in my view it is to
be assumed that whoever it was that saw the paintings was sufficiently expert
to give a view.
I agree with
Slade LJ that the question of quantum is a very difficult one. Let it be
assumed that, had the second plaintiff known, he would have taken the pictures
to Sotheby’s at Billingshurst. What would then have occurred is highly
conjectural. Would they have been sent to London? Would they have been sold at a local
auction? If so, at what price?
This has been
a most interesting case and the most interesting question is whether the two
dogs were in fact painted by George Stubbs. This is a question which I find
fascinating but unnecessary to answer. The experts seem divided and I think
that the attribution must remain forever a mystery. Like Slade LJ, I feel great
sympathy for the plaintiffs, who have lost a ‘sleeper’ for a very modest sum
compared to what it realised at auction and, I would assume, compared to what
it realised when sold on to Mr Mellon. Sympathy does not see them to success
and I can find no liability on the part of the defendants.
Also agreeing,
SIR DAVID CROOM-JOHNSON said: The question in this appeal is whether the
defendants discharged the duty of care which they owed in either tort or
contract to the plaintiffs. The fact that Mrs Zarek wrote on the receipt the
words ‘For Research’ in respect of the pictures which she took away did not, in
my view, do more than indicate the inquiries which needed to be made where the
pictures were not attributed at all and were to that extent something of
unknown quantities requiring estimates of value. It was not intended that,
short of some pointer to put the defendants on special inquiry, these should be
the kind of exhaustive investigations which the use of the word ‘research’ can
imply or of the inquiries which were ultimately made by Sotheby’s. Something
more was done in the case of the picture by Snape, but that was because Mr
Thomas was himself alerted to the possible attribution to Snape. In the cases
of the two foxhounds, Mr Curry has referred us to those passages in the
evidence where witnesses referred us to their ‘quality’, but I am not satisfied
that such quality was there to be noticed by Mr Thomas. He was alive to the
need to make further inquiries in appropriate circumstances, as his action over
the Snape picture demonstrated, but not in the case of the foxhounds. It is
true that Mr Hancock wondered whether they might not be by Stubbs, but he was
somebody with special knowledge of Stubbs and in the end he was not prepared to
bid.
I agree that
Mr Thomas was not negligent.
The judge held
that Mrs Zarek’s inquiry at Christie’s was not sufficiently thorough. He
interpreted the concession which was made by Mr Royle that by going to
Christie’s she was discharging her employers’ duty of care by saying that
nevertheless a visit to Christie’s ought to be carried out in the manner spoken
of by Mr Hancock. This involved in the first place, assuming there was a doubt
about the identity of the artist, checking the provenance, taking the pictures
to the leading expert at that time on that particular artist, and if the pictures
were taken to Christie’s it involved making sure that whoever saw them there
was really knowledgeable, was available to see them, and did actually see them.
As it was put in the judgment, this would have involved checking them out,
taking them to an expert, to the Witt Library or the Courtauld Institute. Mr
Hancock was quoted as saying:
I might have
taken them to Sotheby’s and Christie’s. There are one or two people there that
I know. It depends who you get there. It’s a bit difficult just to go in. It’s
very difficult to have a top expert all the time.
But Mr Hancock
was in a position, as he put it, to ‘get a bit stroppy’ when he took stuff in
there. He had spent three and a half years cataloguing at Phillips, the fine
art auctioneers and valuers, and was giving those answers in reply to a
question of what he would have done if someone had brought the pictures in to
him at Phillips and asked him to research them. The amount of research and
method of research are very different when carried out in such circumstances
from what is appropriate for a provincial auction gallery receiving constantly
a large number of pictures for sale. It was not appropriate to put the gloss on
Mr Royle’s answer by applying standards which were inappropriate to what Mrs
Zarek did. She was not cross-examined on the basis that she should have
employed Mr Hancock’s thoroughness.
I do not
regard Mrs Zarek’s action as discharging the defendants’ duty for them only by
accident. As Mr Curry stressed in his argument on the appeal, Mrs Zarek was to
be regarded as the alter ego of the defendants for the purpose of seeing
whether they were vicariously liable for the negligence of anybody.
She herself
said in evidence that she had the necessary authority to take the paintings to
Christie’s. In my view, in doing so she acted on the defendants’ behalf, and I
do not consider in the way she did it that she was negligent.
As to the
final question: are the pictures genuine Stubbs? I agree with Slade LJ that to try to answer
it is a tempting and fascinating exercise. If it were permissible to give an
answer without having any expertise oneself, and without having seen the
pictures, but going solely on the evidence given in the case for the purpose of
assessing damages, my inclination would have been to accept the opinion of Mrs
Egerton. She appeared to me to deal satisfactorily with a proposition put
forward by Dr Fountain that five pictures in a doubtful group including these
two are all by Stubbs, notwithstanding that she is of the opinion that they are
all by the same hand. At best, I do not think that on the evidence as it came
out the attribution is proven.
For the above
reasons and for those which have been advanced by Slade and Mann LJJ, I agree
that this appeal should be allowed and the action be dismissed.
The appeal
was allowed; by agreement no order was made as to costs.
