Auction — Sale by auction of two small paintings, each of a single foxhound on a rocky seashore — Complaint by plaintiff owners that defendants, provincial auctioneers, had been in breach of their contractual duty in failing to exercise reasonable skill and care in their valuation and sale of these paintings — Paintings had been valued by defendants at £30 to £50 for the pair and later sold at the defendants’ Godalming auction house for £840, 21 times the reserve figure, a result then regarded as ‘surprising’ — Five months later, however, the paintings fetched the sum of £88,000 at a Sotheby’s sale, where they had been catalogued with a full attribution to George Stubbs ARA — It should be mentioned here that, although Sotheby’s had given an unqualified attribution to Stubbs, this conclusion was not unanimously accepted, then or since, in the art world; in particular, it was doubted by one authority who was described as the world’s greatest expert on Stubbs
foxhound paintings had been accepted by the defendants for sale together with
three others offered by the plaintiffs, to whom a receipt marked ‘For research’
was given — The foxhounds were not considered by the staff of the defendants
generally to be of any great merit — However, a lady saleroom assistant, who
had been asked to take to Christie’s for checking a painting which was possibly
attributable to Martin Snape, decided on her own initiative to take the
foxhound paintings there as well — The three pictures were merely handed over
at Christie’s front counter and after some five or ten minutes were returned,
the Martin Snape with a full attribution to the painter but the foxhounds with
no favourable comment — The significance of this in the judge’s view is
referred to below
of the high prices obtained by Sotheby’s, plaintiffs issued a writ against the
defendants alleging that the latter were in breach of an express contractual
term to carry out research and an implied term to exercise the standard of care
and skill required of competent fine art auctioneers in carrying out their
obligations of research and valuation — The brief visit to Christie’s, it was
alleged, did not satisfy the need for proper investigation — Defendants on the
other hand submitted that their position was analogous to general practitioners
in medicine as contrasted with consultants; they were provincial auctioneers,
not a leading London auction house of international repute — In any case they
had gone to Christie’s for a second view
considered the rival contentions, the main points decided by the judge were as
follows — (1) No competent auctioneers of the defendants’ standing, using due
care and skill, could have valued the paintings at £30 to £50 without further
proper investigation; there was a failure to ‘spot the potential’ in the
paintings — (2) It was accepted, although there had been some question, that
the paintings had been taken to Christie’s by a saleroom assistant of the
defendants, but they had been seen there only fleetingly and anonymously, not
by anyone with real expertise; this did not constitute proper and sufficient
research on the part of the defendants — (3) The plaintiffs consequently
succeeded on the issue of liability — (4) As to quantum of damages, the measure
was the difference between what the paintings realised at the defendants’ sale
and their true market value at the time, less any necessary expenses — (5)
Although the attribution to George Stubbs was controversial, the leading expert
taking a contrary view, prima facie the best guide to the true market value was
the price actually realised by Sotheby’s shortly after the defendants’ sale:
‘what governs market value is the art world’s perception at a given point of
time of a picture’s provenance and attribution’ — (6) It was not for the court to
attempt to pronounce on whether the paintings were genuine Stubbs or not or to
build up an ‘objective’ determination of the value from all the evidence
available, including the assessment of the dissenting expert — (7) Thus the
damages would be the difference between the auction prices realised
respectively by the defendants and by Sotheby’s, after deducting the proper
expenses of achieving such sales — Judgment for plaintiffs in the sum of
£76,222
The following
cases are referred to in this report.
Hunter v Hanley 1955 SLT 213
Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634;
[1985] 1 All ER 635, HL
In this action
Mr and Mrs P A Luxmoore-May sued the defendant firm, Messenger May Baverstock,
auctioneers with offices at Godalming and elsewhere in Surrey, for damages for
alleged breach of contract in connection with the sale by auction of two
paintings of foxhounds.
John Bowers
(instructed by Park Nelson, for Tuck & Mann, of Dorking) appeared on behalf
of the plaintiffs; John L Powell (instructed by Reynolds Porter Chamberlain)
represented the defendants.
Giving
judgment, SIMON BROWN J said: This action concerns two small paintings
displayed as the work of George Stubbs in Paul Mellon’s celebrated collection
in Virginia, USA, but which until September 1985 hung unadmired in a dark
corner of the plaintiffs’ hallway. Each picture depicts a single foxhound on a
rocky seashore. Whether they are genuinely the work of Stubbs is hotly in
issue. What, however, is not in issue is that the plaintiffs had them valued by
the defendants at £30 to £50 the pair, saw them sold for £840 at the
defendants’ Godalming auction house, and then suffered the mortification of
reading on the front page of The Times that five months later they had
fetched no less than £88,000 at Sotheby’s. By this action they claim from the
defendants the difference between those respective sale prices net of
commission and other expenses. It is the plaintiffs’ basic contention that the
defendants were in breach of their contractual duty in failing to exercise
reasonable skill and care in their valuation and sale of these paintings.
With that
brief introduction let me come at once to the central facts of the case. These
happily are not for the most part substantially in issue. I find them to be as
follows. These paintings (‘the foxhounds’) were given to the first plaintiff at
the time of her first marriage in 1948 by an old family friend. This lady had a
good eye for pictures and had bought them before the war in the Lanes in
Brighton. During 1985 the plaintiffs redecorated their house and decided to
sell some pictures. More particularly, at the beginning of September 1985 the
second plaintiff contemplated selling three of his pictures. Having retired in
1979 as the senior partner in the defendant firm, he not unnaturally turned to
them. Although himself on the chartered surveyor and land agent side of the
profession, he of course knew well those involved in the firm’s fine arts
department also. Among these were the saleroom manager, Mr Nicholson, and a
saleroom assistant in the picture department, Mrs Zarek. On September 5 1985
Mrs Zarek came to the plaintiffs’ house to see the pictures. The second
plaintiff showed her those which he 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 foxhounds. She had never particularly
liked them. She thought them of no great value. In addition they were rather
dirty. Mrs Zarek hazarded a guess that they were only worth perhaps £30. That
small sum the first plaintiff did find rather surprising; she contemplated
throwing away the paintings and keeping merely the frames. In the event it was
decided that Mrs Zarek would take them back to the defendants’ showroom for
them to be considered further. The nature of that consideration is something to
which I shall have to return. Suffice for the moment to record that there was a
small (and in my judgment irrelevant) misunderstanding as to who would next see
the pictures. The second plaintiff understood that they would be shown to Mr
Nicholson, whereas in fact by that time the defendants were employing as their
fine arts consultant a dealer named Paul Thomas. That was under a written
agreement dated May 10 1985 to which I shall have to return. By September 1985,
indeed, the defendants’ fine art department had issued publicity literature
suggesting ‘Why not invite one of our experts to come and advise you?’ about questions of ‘saleability and value’,
identifying Paul Thomas as the relevant ‘expert’ and ‘specialist’ in the field
of ‘oils, watercolours, prints and maps’. In the event, Mrs Zarek took away all
five pictures and issued the plaintiffs with a receipt on which, having listed
them, she wrote the heading ‘For research’. Thus the foxhounds went to
Godalming.
The defendants
have a fine art sale every few months. Mr Thomas attends their showroom at
approximately fortnightly intervals to examine the various pictures by then
accumulated in the showroom. It is his task to decide which pictures go into
the defendants’ fine arts sales and which into their ordinary general Saturday
sales. He also has to determine how pictures should be described in the
catalogue and gives an estimate of their value. Together with Mrs Zarek he
examined the foxhounds 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 recollects regarding them as ill drawn: one hound, he said, had its neck
awry and its tail in the wrong position. They did not, he says, strike him as
paintings of any quality. It certainly never crossed his mind that they could
have anything whatever to do with Stubbs. Indeed, he says that he did not even
consider Stubbs. It is convenient at this stage to note that Mr Thomas’
expertise, such as it was, was gleaned as a self-employed picture dealer since
1976; as he put it, his knowledge had been built up through trial and error and
studying. He had no specialised knowledge whatever of Stubbs. The catalogue
description which he gave the foxhounds and which was ultimately included in
the defendants’ auction catalogue — where they were listed as lot 394 out of a
total of some 417 lots — 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 a pair.
Following Mr
Thomas’ visit, Mrs Zarek telephoned the second plaintiff and informed him of
this estimate. He said he would discuss it with his wife. She, in the light of
this confirmation of the earlier modest valuation, decided to sell the
pictures.
The auction
sale was to take place on October 10 1985. Shortly before that date 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 upon.
Meanwhile, after Mr Thomas’ examination of the pictures and before the sale,
Mrs Zarek, entirely on her own initiative, took the pictures to Christie’s in
King Street, London. This being part of the case where the facts are less
clearly established, it is an episode to which I shall have to return in some
detail; for the moment I record only the substance of Mrs Zarek’s evidence
about it. Mr Thomas had asked her to take another picture to Christie’s for
checking, an unsigned oil that he thought was attributable to Martin Snape and
which indeed was eventually so catalogued as lot 411 and sold for £560. She
says that because the foxhounds had interested her slightly (she also said that
she liked them and they intrigued her), and because she had put on the
plaintiffs’ receipt that she would research them, she decided to take them
along too. She went in the usual way to Christie’s front counter and there
handed over the three pictures. She asked for a view of the Martin Snape and
also of the foxhounds. 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; nothing favourable, however, was said
about the foxhounds. Although Mrs Zarek told me that she had recognised the
possibility that these paintings were by Stubbs or after or in the style of
Stubbs, perhaps rather surprisingly she never mentioned this to Christie’s, nor
to the plaintiffs, nor to Mr Thomas, nor indeed to anyone else at the
defendants. Nor did she tell any of these people about taking the foxhounds to
Christie’s, not, that is, until after proceedings had been brought.
To return to
the story: the defendants held an auction preview on Wednesday October 9, the
day before the sale. The plaintiffs attended. Perhaps unsurprisingly, given the
defendants’ view about the foxhounds, they were far from conspicuously
displayed: one was on the floor and another was hung low in a corner. But they
nevertheless attracted from a dealer named 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, who says he recalls having looked at the
foxhounds while Mr Thomas and Mrs Zarek were cataloguing them, and having
failed to see in them any quality or sparkle whatever, was surprised by this
bid. But he describes Mr Chrestian as a ‘runner’ and something of a speculator.
His bid was of course some 20 times what the foxhounds were estimated to fetch,
an estimate which by then the defendants had made available to the viewing
public in a marked-up catalogue (in contradiction, of course, to the reserve
price, which is kept secret).
That brings me
to the day of the sale. It was to start at 11 am. A number of dealers were
present. Among them was Mr Mark Hancock, who has a gallery in Westbourne Grove.
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.
The auction
was conducted by one of the defendants’ partners, a highly experienced
chartered surveyor and auctioneer named H Clive Thompson. It is worth noting
that when, shortly before lot 394, the foxhounds, he came to lot 380, carrying
a reserve of £60, it sold for £1,550. As already related, the foxhounds,
carrying a reserve of £40, sold for £840, 21 times the reserve figure. Mr
Thompson was
reserve prices. His concern was with the efficient conduct of the sale. Had he
had a better guide to the value of these pictures he would have started the
bidding substantially higher. As it was, he was concerned at wasting his
auction room’s time in achieving the final bids, having to start from a low
figure and progress by small stages. It was for that reason that, having
entered details of the successful bid and purchaser in the rostrum copy of the
catalogue, he wrote beside each lot ‘guide?’ and circled that together with the
reserve prices.
The successful
bidder was a Mr Rogers, a dealer from Bath, whom the defendants say they knew
as another speculative bidder. Mr Nicholson, acting as the commission clerk on
behalf of Mr Chrestian, began the bidding. He and Mr Rogers were the only
bidders. Mr Nicholson’s final bid was £820 (£800 plus one). He believed £840 to
be a very good price for the pictures. That of course would be so were they as
wholly undistinguished as Mr Nicholson regarded them. He, like Mr Thomas, knew
very little about Stubbs at the time and it certainly had not crossed his mind
that they could be by him. To this day, indeed, Mr Nicholson refuses to accept
that there was any mistake made in the £30 to £50 valuation: he told me that he
himself would not pay £50 for them even today. I find it difficult to take this
sort of evidence very seriously. Mr Thomas, a good deal more realistically,
accepts that with hindsight the defendants made a mistake in this valuation. It
does not of course follow that it was a negligent valuation.
After the sale
the defendants in the usual way sent a post-auction advice to the plaintiffs
notifying them of the price realised. The second plaintiff’s three paintings
had made respectively £400, £270 and £45. Thus, together with the foxhounds,
the total realised was £1,555 which, less the 5% commission charge and
insurance, netted £1,447.71. With this result the plaintiffs were partly
pleased, partly suspicious — as the second plaintiff put it: ‘Obviously the
dealers knew more than the auctioneers.’
The next thing they heard of the pictures was when their attention was
drawn to the front page of The Times on June 30 1986. As they then
learned, some three months earlier the pictures had been knocked down at
Sotheby’s for £88,000. It is to that aspect of the evidence that I must now
turn.
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 years at the Tate
Gallery, latterly in the post of assistant keeper. Before 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 related 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 the other 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.
These last two
paragraphs have attracted criticism from the defendants for creating the false
impression that Mrs Egerton was supporting the attribution. The suggestion is
that her 1984 Stubbs catalogue entry was made to appear as if it applied to the
paintings themselves, whereas she had of course at that time been wholly
unaware of them. She herself was ‘surprised and a bit dismayed’ when she read
these paragraphs. I can readily understand how Sotheby’s catalogue could be so
understood. As Mr Hancock said, it was certainly ambiguous. But I acquit its
author, Mr Moore-Gwyn himself, of any intention to deceive. I accept his evidence
that he regarded the separation of the two paragraphs as a sufficient
distancing of the final comment from his earlier paraphrase of Mrs Egerton’s
1984 catalogue entry.
The defendants
also criticise Sotheby’s for giving the foxhounds an unqualified attribution,
having discussed them with Mrs Egerton. But, as I have said, it seems to me
clear that Mrs Egerton’s doubts have been hardening over recent years. In her
initial letter to the defendants’ insurers dated October 13 1986, she expressed
her personal opinion that: ‘There can be no certainty that the two paintings .
. . are by George Stubbs.’ That is
hardly the emphatic language of clear conviction. And there is another aspect
of the matter. Mrs Egerton regards the two foxhounds as an addition to a group
of three other paintings generally attributed to Stubbs but whose authenticity
she doubts. She is fairly sure (about 70% sure) that all five are by the same
hand. One of these other three, ‘Huntsman with a Grey Hunter and Two Foxhounds’
(‘Huntsman’), she catalogued in 1978 as Stubbs in the Paul Mellon collection,
albeit concluding with this qualification: ‘All in all, one must consider the
possibility that this is an experiment with the master’s ingredients rather
than a seemingly pointless exercise by Stubbs himself.’ This attribution, moreover, may be contrasted
with Mrs Egerton’s treatment of two other paintings acquired by Mellon as the
work of Stubbs; these she catalogued as by ‘anon’. She says, indeed, that at
that time, despite her doubts, she thought Huntsman probably was by
Stubbs. She now believes that perhaps she was over-influenced by the views
which had earlier been expressed by the great Stubbs authority of that time,
Basil Taylor, who while calling it an ‘unusual and problematic work’,
nevertheless did not himself doubt its authenticity.
In short, I
have reached the clear conclusion that Sotheby’s were
indeed it is fair to add that Mrs Egerton herself stated in her report that she
was not unduly surprised to see Sotheby’s give them a full attribution.
Although it was perhaps a bold decision to attribute in the language of
certainty rather than probability, I am satisfied that it was not improper. Mr
Moore-Gwyn said that in any event prospective buyers of pictures such as these
would not rely solely on Sotheby’s attribution but rather would have done their
own research. A number he knew to have consulted Mrs Egerton. Although Mrs
Egerton says that she was not in fact consulted by Spinks, the fine art dealers
to whom these pictures were eventually knocked down, she thinks they already
knew her opinion. As related, the foxhounds sold for a total of £88,000, one
fetching £56,000, the other £32,000 (the difference probably being attributable
to the bidders’ preference for a pair).
By the time of
Sotheby’s sale there is no doubt that the foxhounds had been spruced up. Mr
Hancock saw them before each auction. He describes them as having been much
dirtier at the time of the defendants’ sale. At Sotheby’s they were by contrast
well presented. Mr Thomas also saw them at Sotheby’s and says that a cosmetic
job had been done upon them although they had not been fully restored. Indeed
one can still see from the Sotheby’s catalogue illustrations an outline around
each foxhound, occasioned by the dog being painted on a separate piece of paper
which had then been stuck over one or more other pieces, the latter being then
glued to a board. But although still visible, the inset was not curling to the
same extent as when at the defendants’. I have concluded, however, that there
is no real relevance to be attached to the altered condition of the pictures
between the respective auction sales. Mr Thomas told me that even had he seen
them in their Sotheby’s condition, Stubbs would still have been a long way from
his mind. He might, however, have given them an enhanced decorative value of
some £400 to £600.
Having been
knocked down to Spinks in March 1986, 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. The
colours were clearly showing. They were quickly sold by Spinks to Paul Mellon.
He apparently dropped into the gallery one day and found them irresistible. I
imagine he was alive to Mrs Egerton’s doubts. What price he paid is not known.
Presumably it was a good deal more than £88,000.
Meanwhile, as
I have related, the plaintiffs learnt about the Sotheby’s sale from an article
in The Times three months later. The article referred also to Mr
Hancock’s ‘killing’ with Stallion: that had been sold at Sotheby’s in New York
for some £268,000. After reading the article, the second plaintiff telephoned
Mr Nicholson. He was left unsatisfied. The writ followed not long afterwards on
September 2 1986. The subsequent pleadings were complicated both by a
succession of amendments and also by the introduction of Mr Thomas into the
action as third party. All that I need record, however, is that the contention
that the defendants took the foxhounds to Christie’s first surfaced in the
third party’s defence dated July 24 1987, some six weeks after the plaintiffs’
further and better particulars alleging that the defendants, if in any doubt of
the value or provenance of the pictures, should have sought specialist advice
from a well-known auction house such as Sotheby’s or Christie’s. Curiously
enough, despite those pleadings, the defendants themselves still made no
reference to taking the paintings to Christie’s even in their amended defence
dated November 25 1987. The explanation of this is said to be that instructions
were still being sought as to precisely what the situation was. Mr Nicholson
thinks it was not until this year that Mrs Zarek told him she had taken the
pictures to Christie’s. His explanation of the delay in discovering this
obviously important piece of evidence is that Mrs Zarek was very emotionally
upset by the claim and could not think very clearly. Mrs Zarek for her part,
however, denies any such thing and says that although she was a little
embarrassed at having taken the picture to Christie’s she nevertheless informed
Mr Nicholson of this as soon as he told her the news of the Sotheby’s sale. The
third party proceedings, I should add, are no longer material. Mr Thomas and
the defendants have composed their differences and indeed Mr Thomas was called
to give evidence on their behalf.
Against that
broad factual background, I come to the central contentions and issues which
arise. The plaintiffs’ case is essentially as follows:
1 It was expressly agreed under the contract
that the defendants would research and value these paintings with a view
thereafter to auctioning them if the plaintiffs so decided.
2 It was an implied term of the contract that
the defendants would exercise reasonable skill and care in carrying out their
obligations of research and valuation.
3 The standard of skill and care required was
that of competent fine art auctioneers and valuers professing the degree of
expertise which the defendants professed.
4 The defendants breached that implied term.
They failed to show the standard of skill and care required. No competent fine
art valuer concerned with these paintings could properly conclude that they
might confidently be valued at £30 to £50 the pair or indeed anything remotely
like it. At the very least they should have recognised that the paintings
required further investigation by those with greater expertise than they
themselves possessed.
5 No such further investigation was carried
out. Even if, which the plaintiffs do not accept, Mrs Zarek took these pictures
to Christie’s, that did not satisfy the need for proper investigation.
It is of
course, implicit in these contentions that the foxhounds were in fact of real
merit and enormously more valuable than recognised by the defendants. In my
judgment, for reasons to which I will come, that is plainly established,
irrespective of whether they are in fact genuinely the work of Stubbs or mere
copies.
The defendants
argue that the plaintiffs’ claim seeks to put altogether too great a burden
upon provincial valuers like themselves. It is submitted that they are to be
regarded as akin to general practitioners in medicine and a number of authorities
are cited in support of these general propositions: first, that the required
standard of skill and care allows for differing views and even a wrong view
without the practitioner holding that view being held to be in breach of
contract; second, that 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 London auction houses;
and, third, that compliance with the required standard is to be judged by
reference to the actual circumstances confronting the practitioner at the
material time rather than with the benefit of hindsight. Mr Powell cites most
authoritatively the decision of the House of Lords in Maynard v West
Midlands Regional Health Authority [1984] 1 WLR 634, and he relies upon
Lord Scarman’s endorsement there of 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 for 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 . . .
All these
propositions I unhesitatingly accept. The problems of this case lie not in the
principles but in their application. I further accept Mr Powell’s submission
that the defendants’ publicity material referring to Mr Paul Thomas as an
expert and specialist really cannot assist the plaintiffs. In the first place
it is doubtful whether they were aware of it. As I have stated, the second
plaintiff understood the pictures would in the first instance be seen by Mr
Nicholson rather than by Mr Paul Thomas, of whom he knew nothing. More
important the scope and meaning of the terms ‘expert’ and ‘specialist’ fall to
be construed in the context of the publicity document read as a whole. The very
width of the area of expertise offered — ‘oils, watercolours, prints and maps’
— necessarily indicated that it was that of a general practitioner rather than
a specialist. As Mr David E Royle [FRICS FSVA], called by the plaintiffs as an
expert upon the nature and practice of professional auctioneers, put it:
The
defendants advertise themselves as having great expertise in pictures and, as
such, notwithstanding I would not expect detailed scholarship, I would expect
the public to assume they had a good all-round knowledge of pictures and again
I use the analogy of a medical general practitioner.
Arising from
those general principles, the defendants advance two main submissions. First,
that a competent auctioneer of the defendants’ standing could, without
breaching the implied duty of skill and care, fail to make any attribution of
the foxhounds to Stubbs. Second, and wholly independently of that first
submission, that the most that could have been expected of a competent general
practitioner was for the pictures to be taken to a London auction house for a
second view, which is precisely what in the event happened.
As it seems to
me, these rival contentions give rise to three main questions:
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?
Question 1
I reject Mr
Powell’s preferred formulation of this question — to ask whether a competent
auctioneer could have failed to make any attribution to Stubbs. In my judgment,
that is the wrong question. In particular, it overlooks the general
practitioner’s need 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. As the
second plaintiff himself said, he wanted Mr Nicholson’s advice. If he was not
sure he knew, then the second plaintiff expected him to say so and to tell him
to take the pictures somewhere else. The issue can, in my judgment, be restated
thus: were the defendants entitled to be as wrong as they were and yet so
confident that they were right that they ruled out the need for further
investigation? This first question, of
course, falls to be resolved on the footing that the limit of the defendants’
researches was simply to take Mr Thomas’ opinion of the foxhounds during the
course of his routine visit to examine a total of some 50 pictures.
Mr Powell
urges two main contentions upon the facts. First, that the history of this
matter itself supports the defendants’ case by demonstrating the failure of
others besides themselves to make the Stubbs attribution. Second, that it was
vital to see the actual foxhound paintings (and indeed preferably in their
original state as first seen by the defendants) rather than merely photographs
of them, in order to assess their worth or potential. The defendants should not
be condemned for negligence on the basis of witnesses like Mr Royle who have
seen only Sotheby’s glossy photographs and seen them, moreover, in the context
of an already-made full attribution.
As to the
history, Mr Powell refers to the defendants having sent their sale catalogue to
approximately a thousand people, including most of the main picture dealers
both in London and the provinces, and he instances the failure of the several
dealers present at the auction (not least Mr Hancock) to identify the foxhounds.
He further remarks upon Christie’s similar failure. I cannot accept these
submissions. It is one thing to point out that dealers for the most part
declined to speculate by entering the bidding for these pictures at auction,
quite another to say that the defendants themselves — the auctioneers directly
concerned on the vendors’ behalf — were therefore entitled to be sure of their
own relatively inexpert opinion without making further investigation to guard
against the risk of error. Indeed, it goes further than this. The fact is that
two dealers were prepared to back their hunches to the extent of over
£800, bidding against one another. It need hardly be pointed out that they, at
least, plainly recognised that further researches were worthwhile. I reject Mr
Powell’s submission that the underbid of itself evidences what all but the
successful bidder considered to be the maximum value of the pictures. On the
contrary, it represents the most that they could be confident (or were prepared
to speculate) the pictures were worth without the benefit of further
investigation. And the evidence of Mr Hancock also, which the defendants seek
to invoke, in truth cuts the other way. Although himself no expert, he
certainly did not fail to recognise the real potential in these pictures; he
merely concluded on balance that he ‘was not prepared to pay a lot of money for
them’. And even that balance was tipped only because of his knowledge that
Christie’s had apparently thought them worthless. Nor can I ignore his evidence
as to his own approach while working for three and a half years cataloguing
pictures at Phillips in London: if he ever had a shadow of a doubt about a
picture he researched it further. To my mind there is not the slightest doubt
that had he been working for the defendants he would not merely have recognised
the potential in the foxhounds but also proceeded to research it. I shall
return later to the further telling evidence which he gave about the nature of
such research and the whole question of checking pictures with Sotheby’s or
Christie’s.
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 importance of a careful approach to valuation is not in
doubt. Mr Nicholson acknowledged the importance of giving the client proper
advice and of auctioneers being ever vigilant for a valuable painting. Mr
Thomas himself said that everybody is looking for ‘sleepers’ (antiques of
unrecognised worth) and that one must accordingly look hard at everything,
guarding against possible cynicism induced by a ready supply of copies, and
trying to visualise what is beneath the dirt. As already indicated, I cannot
accept that the condition of the foxhounds at the time could excuse a failure
to appreciate their significance. In this respect also, both Mr Hancock’s
evidence and the level of bidding actually achieved in my judgment speak for themselves.
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.
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. I pass to the second question.
Question
Two
Did Mrs Zarek
take the foxhounds to Christie’s? Not
without hesitation, I conclude that she did. There are many reasons for such
hesitation. It is odd that she took along with the Snape these particular
pictures rather than any others. Odder still that she never told anyone that
she was going, or had been, or anything of her thoughts about Stubbs. The
inconsistencies in the defendants’ evidence about when and the circumstances in
which Mrs Zarek came
explained. No word of confirmation of the visit comes from Christie’s. And it
is decidedly puzzling that Mrs Zarek should have been embarrassed to reveal her
visit to Christie’s when first she learned of the legal proceedings or of the
Sotheby’s sale (whichever it was). One might more readily have expected her to
be proud of her own initiative and delighted to be able to provide so
apparently ready an answer to any criticism directed against her employers. I
am bound to say that in many ways I regarded Mrs Zarek as an unsatisfactory
witness. It seems, furthermore, plain from the course of the pleadings and the
subsequent correspondence (in which the plaintiffs were endeavouring to elicit
more about this incident) that the defendants’ advisers, if not indeed the
defendants themselves, likewise entertained certain doubts about this incident.
But despite
all those difficult features of the evidence, I have finally concluded that Mrs
Zarek did make the visit to Christie’s which she describes. I so decide most
particularly because of the formidable obstacle placed in the path of the
opposing thesis by Mr Hancock’s clear confirmation on the point: his account of
being told on the very day of the sale that the foxhounds had been to Christie’s.
I was generally impressed by Mr Hancock’s evidence. True, upon
cross-examination he was unclear about one aspect of his account of purchasing
Stallion, but I am not prepared to doubt his credibility on that limited basis.
And although I recognise that Mrs Zarek might have invented the Christie’s
incident at a late stage and Mr Hancock then have come to be persuaded that she
had mentioned it to him, this seems to me a somewhat fanciful possibility.
All that said,
I make plain that my conclusion on the point is closely balanced and that I
reach it in part because:
1 I am prepared to accept Mrs Zarek’s evidence
that the reason for her taking the foxhounds was because, as she stated, she
had specifically written on the plaintiffs’ receipt that they would be
researched.
2 I believe that the paintings were seen only
fleetingly by Christie’s and not by anyone there with any real expertise in
such paintings. Were it otherwise, I would expect Christie’s to have
recollected the visit and to have given evidence before me. Moreover, Mrs Zarek
herself says that the paintings were only taken away for five or 10 minutes.
And, as already indicated, I am sure that any expert could not have failed to
realise at the very least the pictures’ real potential value. Mr Powell’s
suggestion that the lack of such recognition by Christie’s supports his
contention that his clients cannot be faulted for having missed this potential,
necessarily (and I believe wrongly) assumes that they were seen at Christie’s
by an expert.
3 It occurs to me that Mrs Zarek’s failure to
tell her employers about Christie’s clearly and soon, and her embarrassment (if
such it was) in doing so, may perhaps be because she realised that her visit
was not in fact a very satisfactory piece of research.
The relevance
of these conclusions to the third issue will become apparent.
Question 3
Did the visit
to Christie’s constitute proper and sufficient research of the foxhounds? This I am bound to say has seemed to me the
most difficult issue. At first blush there appeared great force in the
defendants’ contention — almost a cri de coeur — that realistically
nothing more could be expected of a provincial auction house. Mr Powell,
furthermore, relies strongly upon the evidence of the plaintiffs’ own expert,
Mr Royle, both in his report and in cross-examination. Mr Royle 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 then asked
whether in his opinion such an auctioneer had discharged his duty, he replied
‘Yes’.
How, then, do
the plaintiffs meet those contentions?
Above all by stressing the deficiencies of a second opinion obtained in
the way which Mrs Zarek describes. First, Mr Bowers criticises Mrs Zarek for
her failure to mention to Christie’s her own thoughts about the possible Stubbs
attribution. Then he points to the obvious problems inherent in so short and
anonymous an examination as the Christie’s counter procedure provides for. It
is in this regard that I return to Mr Hancock’s evidence. Asked what he would
have done if he had received these particular foxhounds while at Phillips, his
answer was this: ‘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 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.
Mr Hancock’s last word on the point was this: if he had thought the pictures
might be attributable to Stubbs, he would not just hand them over the counter
at Christie’s.
It seems to me
that Mr Royle’s answers can and should be understood consistently with that
evidence. He was postulating 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.
It also seems
to me necessary in addressing this issue to give proper weight to the
requirement for ‘research’ that arose under this contract. Such an obligation
in the context of a contract to research and value can only mean to carry out
whatever inquiries would appear to a competent provincial valuer to be
necessary to arrive at a proper valuation. It must be remembered that this
obligation was, perhaps unusually, one expressly undertaken by Mrs Zarek. She
had actually inscribed it upon the receipt. It was indeed for that very reason
that she felt bound to take the foxhounds to Christie’s in the first place.
In my
judgment, moreover, some light is cast upon the nature of this obligation by
two other of the defendants’ documents which refer to ‘research’. The first is
their own auction catalogue which states:
All
descriptions given in this catalogue, are an opinion given after careful
consideration and research. These descriptions are not a guarantee of
authenticity.
Is it to be
said that a full attribution (such indeed as was here given to the Martin
Snape) is the result of ‘careful research’ merely because it receives an
anonymous authentication from someone behind the scenes at Christie’s? Surely not. But the second and more important
document is the fine art consultancy agreement of May 10 1985 between the
defendants and Mr Thomas. This included the following terms:
(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.
True, this
consultancy agreement is not one which directly affects the contract between
the plaintiff and the defendants. But, in my judgment, it illuminates the
relevant standard of skill and care to be used in the research to be undertaken
— the standard, that is, which a competent, provincial auctioneer would think
appropriate. References to ‘research strategy’ and to delegating research to
outside bodies such as the Courtauld Institute to my mind contemplate a good
deal more than merely going to Christie’s counter in the hope that a real
expert will chance to be available there during the few minutes while the
pictures are handed over. And it is no answer to say that these obligations
arose under the consultancy agreement only ‘if applicable’ or ‘if necessary’;
research was here necessary. And indeed it was recognised by Mrs Zarek
to be necessary; whether because she had expressly undertaken it or because she
had developed a hunch about the foxhounds matters not.
I accordingly
conclude 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.
Upon this
third question I add only this: 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.
It follows
that the plaintiffs succeed upon the issue of liability. In these circumstances
I will deal relatively shortly with the two alternative bases upon which they
sought to found a claim, neither of which, in my judgment, is made out.
The first of
these contentions was that the defendants should have withdrawn the foxhounds
from the sale once, during the auction, the
then, the argument runs, the auctioneer must have appreciated that a serious
error in valuation had been made. This allegation depends entirely upon Mr
Royle’s expert evidence. Certainly he said that he himself would in these
circumstances have withdrawn the lot during the bidding. But he expressly
declined to go as far as to say that no competent auctioneer would continue
with the sale. On the contrary, he agreed that a number of auctioneers would,
as Mr Thompson in fact did, go ahead and that this body of practitioners,
although in his judgment ill-advised, could not be categorised as incompetent.
Even, therefore, without hearing Mr Thompson’s and Mr Nicholson’s contrary
evidence on the point — and I may say that it seemed to me to have great force
— I would have rejected the allegation of negligence in this regard.
The second
alternative basis of claim is, in my judgment, still less tenable. It is an
allegation that it was improper for Mrs Zarek to tell dealers attending the
sale that she had taken the pictures to Christie’s and received an adverse
opinion from them. This is said to have depressed their price at auction.
Although I was prepared to give the plaintiffs leave during final speeches to
amend their pleadings to encompass such a claim (arising, as it does,
consequent upon the defendants’ defence — itself inadequately pleaded and
requiring amendment — regarding the Christie’s visit), it appears to me
absolutely hopeless. In the first place, I can see nothing wrong in auctioneers
being candid with the buying public. As Mr Moore-Gwyn told me, if Sotheby’s had
been consulted while they had the foxhounds for sale, they would have said that
Mrs Egerton was not really happy about them. Surely such candour is to be
welcomed rather than held to create liability. But in any event the damage
flowing from the conduct complained of is in the highest degree speculative.
True, on his own evidence Mr Hancock would probably have bid. But we do not
know to what level, nor whether other potential bidders were discouraged by
anything Mrs Zarek said. There is in short nothing to say that the price
realised would necessarily have been higher.
The only real
point to be made upon this aspect of the evidence is that it clearly serves to
underline the importance of taking proper steps to research and value items in
the first place. Otherwise, not merely are the lots inadequately advertised,
catalogued and displayed, but also their successful sale is likely to be
inhibited: in this instance, first by the defendants’ published valuation of
£30 to £50, second by their telling those who inquired about Christie’s adverse
opinion.
I pass to
quantum. It is essentially to this issue that the defendants contend that the
experts’ evidence regarding attributability relates. I shall accordingly deal
with it at this stage.
As I have
stated, it is Mrs Egerton’s present opinion that there is only a 15% chance of
the foxhounds being genuine. That, however, is not the universal view. I have
referred already to Sotheby’s and Spinks and to those whom they consulted (or,
in Spinks case, must be assumed to have consulted). The plaintiffs in addition
called an expert, Dr Robert Fountain, a medical general practitioner but with a
consuming interest in sporting art in general and George Stubbs in particular.
Although in one sense an amateur, Dr Fountain’s qualifications are impressive
and he has published works in this field, most notably ‘Stubbs’ Dogs’. This he
wrote together with the late Alfred Gates, then managing director of
Ackermanns, the fine arts dealers best known for sporting paintings.
It is Dr
Fountain’s view ‘on balance’ that the foxhounds are likely to have been painted
by George Stubbs. He, like Mrs Egerton, accepts the close relationship between
this pair of paintings and the three other paintings whose subject-matter also
derives wholly or partly from the Charlton Hunt. He, too, thinks it probable
that all five vignettes were painted by the same hand. But he, unlike Mrs
Egerton, believes them all to be genuine. One of the other three I have already
mentioned, Huntsman. I must now refer briefly to the remaining two (both
pictured in Stubbs’ Dogs). One is ‘Lord George Lennox with a Hound’ (‘Lord
George Lennox’). This is in Lord Bathurst’s private collection. Of the group of
five, it has much the best provenance. It is believed to have entered the
present owner’s family at some date after the marriage between Lady Georgina
Lennox (the niece of the subject) and the third Earl Bathurst in 1789. The
other painting in the group is ‘A Dapple Grey Hunter with two Hounds besides a
Lake’ (‘Hunter’). This appears first to have come to light in modern times when
brought into Sotheby’s in 1981. Sotheby’s consulted Mrs Egerton about it. As Mr
Moore-Gwyn told me, she was very against it. Others, however, thought
differently. But because Mrs Egerton had expressed herself with such certainty
on that occasion, Sotheby’s catalogued Hunter with the lower category of
accreditation, namely as ‘Attributed to George Stubbs’, the meaning of which I
have already set out. Despite such hesitation in its attribution, however,
Hunter sold on March 18 1981 for £21,000. It was brought by Ackermanns,
authenticated by Alfred Gates, and sold on to the Mellon Collection.
If, contrary
to her primary view, this group of five paintings are not all painted by the
same hand, Mrs Egerton believes that Lord George Lennox has the best chance of
being genuine (because of its provenance, inconclusive though that is),
Huntsman has the next best chance, and Hunter and the foxhounds are left
sharing the least chance of being genuine.
I do not
propose to burden this already lengthy judgment with an extended analysis of
the arguments advanced by the rival experts for and against the foxhounds. In
summary, it seems to me that Mrs Egerton’s most persuasive points are these:
1 The foxhounds are too fully finished to be
credible as the sort of working sketches which might be made to help work out
the details of a large picture (here the Charlton Hunt). Nor is there any
record or evidence of Stubbs making trial sketches or studies in oil, save only
that in the 1807 catalogue for the posthumous sale of the contents of his
studio there is included, under the heading ‘. . . studies from nature, in oil,
the sole performance of Mr Stubbs’, lot 52, described as ‘hounds, sketches, a
pair, and one bird of passage’. That lot, however, appears among innumerable
sketches and preliminary drawings in chalk, pencil, pen and ink and the like,
but not oil. Dr Fountain suggests that lot 52 could be these very foxhounds.
And, indeed, Spinks included reference to lot 52 in their June 1987 brochure as
a ‘possible provenance’ for the foxhounds. But, replies Mrs Egerton, that is
all highly speculative; it would indeed be a remarkable coincidence were it so:
there is nothing else to establish such provenance.
2 It is improbable that Stubbs would have
wanted to make small finished pictures using details of an already completed
large painting. Rather he was a ceaselessly inventive artist. No certain
instances are known in which he isolated details from a large oil painting and
turned those details into small finished oil paintings, adding landscape
backgrounds, so that the details became pictures in their own right. It is
further to be noted that the backgrounds are plainly more similar to that in
the engravings than to anything in the Charlton Hunt. All in all, suggests Mrs
Egerton, it is more probable that the foxhounds were copied from the engravings
published in 1788 or, perhaps more likely still, from the Charlton Hunt itself.
Goodwood House having been open to the public at least since 1822. And
certainly Dr Fountain recognises the difficulty of placing in coherent
chronological sequence, in a way consistent with his belief that the paintings
are genuine, the following six events: the painting respectively of the dogs
and of their background (these quite possibly being done at different times),
the planning and thereafter the painting of the Charlton Hunt, the engraving of
the dogs and the preparatory pencil drawing for one of the engravings (a
drawing referred to in Spinks’ brochure and itself in the Mellon Collection).
Both these
first two arguments are of course reflected in Mrs Egerton’s brief
qualification which I have already quoted from her 1978 catalogue entry for the
picture Huntsman in the Mellon Collection, in particular its reference to ‘a
seemingly pointless exercise by Stubbs himself’.
3 There are also the detailed criticisms which
Mrs Egerton makes — and to which I have sufficiently referred — of the painting
of the dogs, in particular their handling anatomically within their clearly
Stubbsian outline. True, Dr Fountain says that the quality of the painting is
very good. But of course he has not had the important advantage of examining
the foxhounds themselves rather than photographs of them.
It is
convenient to note here that it is this final aspect of the expert evidence
which, as Mr Powell correctly asserts, bears also on the earlier issue of
liability. The greater the weight of expert evidence suggesting that the actual
paintwork is not of a quality consistent with a given painter’s skills, the
more difficult to criticise a valuer for failing to spot the connection. This
of course I recognise, and I have taken it fully into account in my
consideration of the liability issue. I have indeed in that regard referred not
only to Mrs Egerton’s but also to Mr Hancock’s criticisms of the quality of
these paintings. But one only has to read Mrs Egerton’s expert report to
appreciate that this
attributability: it does not find a single mention there.
To return to
the expert evidence in the context of quantum. It may be thought that the
overall balance of the argument appears to lie in favour of Mrs Egerton’s
conclusion. But is this an issue upon which I am required to make a
decision? Is it really for this court to
purport to pronounce authoritatively whether these foxhounds are genuinely the
work of Stubbs or mere honest copies? I
think not. On the contrary, it is I believe wholly unnecessary to arrive at a
judgment of my own on the point. That being so, I shall certainly refrain from
doing so. What more absurd than for me needlessly to offer my inexpert view
upon the correctness or otherwise of the opinion of the acknowledged world
expert. Sometimes the court is driven into such a position, but not here, and
for this reason: had it not been for the defendants’ breach of contract the
plaintiffs would have discovered the true potential of these pictures and sold
them properly, as likely as not at Sotheby’s. 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. Is there anything to displace that prima
facie conclusion?
The defendants
argue first that the sale price obtained by Sotheby’s was ‘tainted’, both by
the unqualified attribution given to the foxhounds and by their misleading
catalogue entry. I have already expressed my views about that: I acquit
Sotheby’s of any impropriety. In my judgment, it is only if Sotheby’s acted
unlawfully in the matter, knowingly misrepresenting the position, either by
giving the foxhounds an improper attribution or by intentionally conveying a
false impression of Mrs Egerton’s views about them, that the defendants can
escape the prima facie effect of Sotheby’s auction price. And even then
it would be necessary to consider whether or not the buying public had been
materially misled by the alleged misrepresentations. It seems to me that the
defendants would fail on that ground also. For I am not persuaded that the sale
price was in the event affected by Sotheby’s attribution and description. The
best evidence to the contrary is surely Mrs Egerton’s own belief that Spinks,
the purchasers, knew her views anyway. And it is highly relevant in this
context to recall that Hunter sold in 1981 for £21,000 even without Sotheby’s
full attribution.
The
defendants’ second argument is that the Sotheby’s sale price should be ignored
and the foxhounds’ value instead determined ‘objectively’, taking into account
all the information now available, including particularly Mrs Egerton’s
assessment. I reject this utterly. It involves substituting the court’s
‘objective’ 1988 view for the actual 1985-86 market value. What governs market
value is the art world’s perception at a given point in time of a picture’s
provenance and attribution. Experts’ opinions may of course differ and they may
change. As Mr Hancock said, nothing is black and white in the art world:
pictures can vary from time to time between being, as he put it, right and not
right. The art world’s perception of the foxhounds in 1985-86 is easily judged:
enough experts thought them right to take the bidding to £88,000, and indeed to
take them thereafter into the Mellon Collection. Mrs Egerton may well be
correct in her opinion and those lesser experts all wrong. Let us assume so. It
is really nothing to the point. Indeed, for all one knows, but for the doubts
which Mrs Egerton has hung around these paintings, they might well have been
worth yet more.
The
defendants’ third and most extreme argument is that the price achieved at the
defendants’ auction, £840, reflected the foxhounds’ true value, so that the
plaintiffs have not in the event suffered a loss. As I understand it, the
argument runs essentially thus. The court should accept Mrs Egerton’s evidence
and therefore conclude that the foxhounds had no more than a speculative value
which was in fact realised. The court should also conclude that the defendants
correctly described the paintings in their sale catalogue: they were not
entitled to a Stubbs attribution. Put more simply and seductively, the argument
is really this: given that on the most expert evidence before the court the
foxhounds are probably not genuine Stubbs, why on earth should the defendants
be found negligent for failing to recognise them as such, and then indeed be
mulcted in damages for all the world as if they were? Superficially attractive and plausible as
this first appears, it cannot succeed. Its central fallacy lies again in the
supposition that it is this court now, rather than the international art market
then, to decide the authenticity and value of these foxhounds. More
particularly, the argument fails to recognise that the paintings’ true
speculative value could not hope to be realised until such time as the art
world’s buyers and experts were alerted to their possibilities and given the
opportunity to reach their own conclusions upon them. They should have been. It
is really not possible to suggest that these foxhounds were adequately valued
and catalogued by the defendants. Whatever history may ultimately decide about
their authenticity, there can be no question but that the defendants took the
wrong view of them. As I have endeavoured to explain, their errors lay not in
failing to make a positive Stubbs attribution — they did not themselves have
the expertise to do that any more than to conclude the contrary — but rather in
their failure to spot the potential in these paintings. And with regard to
cataloguing, as Mr Moore-Gwyn said, even if auctioneers are not persuaded that
a particular work is probably an original, they can nevertheless indicate its
real speculative value in the catalogue by observing that some experts at least
regard it as genuine. I have not the least doubt, moreover, that Mrs Egerton
herself would reject this whole argument. Although she is not yet sure how she
will treat the group of five Charlton Hunt vignettes in her comprehensive
catalogue raisonne of Stubbs’ work, they will most certainly appear there. And
I cannot for a moment believe that she would regard £840 as the limit of the
foxhounds’ speculative value, whether in 1985 or indeed now.
From all this
it follows that in my judgment there is no reason to depart from the prima
facie conclusion that the proper measure of damages in this case is the
difference between the auction prices realised respectively by the defendants
and by Sotheby’s, less of course the expenses of achieving such sales. The
plaintiffs’ only expense incurred with the defendants was the commission. To
achieve the Sotheby’s price, quite apart from commission, they may well have
had to incur research costs as well as the expense of sprucing-up the pictures
as I have described. I propose to invite counsel to agree these matters,
alternatively to assist me further upon them.
Subject only
to that, there will be judgment for the plaintiffs for damages on the basis
indicated.
