Antiques Trade Gazette 79

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A LAWYER WRITES

How long do you have to make a claim?

■ MILTON SILVERMAN explains why the English statute of limitations for claims does not always apply

MOST people know, if only in some vague way, that a right to bring a claim expires after six years. This, insofar as it goes, is correct.

Above: the Hepplewhite-style four poster bed, originally from Hedingham Castle, pictured here in Country Life in the 1920s. It is being auctioned by Sotheby’s in Virginia on June 8-9.

Help us buy back our historic bed

SIR – Jason and Demetra Lindsay, owners of Hedingham Castle in North Essex, are making a personal plea for the original Hedingham Castle Bed to be safely returned to the castle as it may be their last opportunity.

The Hepplewhite-style four-poster bed will be auctioned by Sotheby’s of Charlottesville, Virginia for Mrs Patricia Kluge on June 8-9 in the Albemarle House sale.

This bed was commissioned for Hedingham Castle by the Ashhurst family who built the Queen Anne house in 1719. It was made for Elizabeth Ashhurst, to celebrate her marriage in 1781. Hedingham still has a painting of Elizabeth above the fireplace in the hall. The bed was sold in the 1960s to raise desperately needed restoration funds. The castle survives today through income generated from being open to the public, holding events and wedding receptions, and all funds are poured into the maintenance and restoration of the Norman keep, the house and all the other buildings. Current financial challenges have been recently increased with restoration work.

The historic bed has an auction estimate of $30,000-50,000 and the Lindsays are seeking benefactors or corporate sponsors to be part of the Hedingham Castle history. In return they can share the use of their home and castle on agreed dates for a wide range of unique events:

Please could any potential sponsors contact Nicki Bannerman, harper.castle@virgin.net. The Harper Bannerman Consultancy, on 07711 034889.

The Limitation Act 1980 is the governing statute

concerned, as its name indicates, with the issue of limitation. It is true that in general terms what is known as a “cause of action” expires after six years from the time that the right to bring such action accrues. The first question is when does that right accrue? If a claim is for a breach of contract, the clock starts ticking from the date of the breach of contract and if one is making a claim in ‘tort’ (ie negligence, nuisance, etc) then the clock starts to tick from when that tort was committed, eg from when he drove his car into the back of yours, negligently. You may think that six years is a long time and that surely anyone who has a claim will get round to making it well before the six years starts to run out. Not so in fact. There are many reasons for this. The Limitation Act has proven to be very relevant to the art and antiques trade. So have the various exceptions in the Act which stop the clock ticking on and start to produce complications. Take the following real life example. In 1970 Peco Arts Inc, a company vehicle created by a Mrs Curran for the purpose of acquiring works of art, bought an original drawing (so she thought) by J.A. Ingres for $18,000, on the advice of an expert in 19th Century French drawings. The defendant vendors, Hazlitt Gallery Limited, were described as “art dealers of high repute”. In 1976 Mrs Curran had the picture valued by an expert for insurance purposes. Time passed. In June 1981, she decided to have the picture revalued, and on that occasion the expert discovered that the drawing was a reproduction and not an original work.

Crucially in this case, it was common ground between both the aggrieved purchaser and the vendor that at the time of the sale both parties thought that the drawing was an original drawing by Ingres but they were both mistaken. You will have noticed that no less than 11 years have passed between the time of Peco Arts’ purchase and the discovery of their right of action. This is where the exceptions to the six-year rule start to be

relevant.

Section 32 of the Limitation Act 1980 states: “Where in the case of any action for which a period of limitation is prescribed by this Act… the action is for relief from the consequences of a mistake… the period of limitation shall not begin to run until the Plaintiff has discovered the… mistake... or could with reasonable diligence have discovered it.” So, there was an opening here for Mrs Curran. However, she would not only have to show that she did not discover the mistake, she would have to show that she could not

have discovered it even with “reasonable diligence” until she did so. The judge trawled through all the facts in the usual way: when Mrs Curran purchased she took the advice of a specialist in 19th Century French drawings “of which an original by Ingres would be a prime example”. The specialist recommended that she buy this drawing and also one by Tiepolo. Mrs Curran was told that the Ingres drawing had been exhibited in Paris. She had no doubt she was buying an authentic drawing. Sotheby’s valued it in 1976. “Nothing was said during that valuation to throw any doubt upon the authenticity of the drawing”.

In 1981 Mrs Curran decided that it was time to have another valuation and this time instructed a specialist whom she had known for some time, and who was the valuer for the Paul Mellon Collection. “When he came to this particular drawing he took it off the wall to the window to get a better light and when he took it into a better light he was immediately suspicious of it…”. This specialist took it to the defendants’ gallery who also had it examined by an expert. It became common ground that it was a reproduction. On behalf of the defendants, Lord Rawlinson QC “made a number of submissions about the construction and application” of the relevant words of Section 32 of the Limitation Act. I will not burden you with these. Suffice to say that the judge was not impressed by Lord Rawlinson’s attempts to make out that there was available “a means of discovering the mistake which the plaintiff did not use”. The judge did not accept that Mrs Curran should have had it “independently authenticated” immediately after purchase. The judge went on to examine exactly what Mrs Curran did and did not do and what she could have been expected to do. He concluded: “Nothing happened between the purchase by her in November 1970 and the discovery that it was a reproduction in 1981 to put Mrs Curran on notice that it might be a reproduction. In those circumstances, in my judgement, there was no lack on her part of reasonable diligence and I expressly reject the suggestion that, as a matter of reasonable diligence and despite the circumstances of the purchase, she ought to have had the drawing independently authenticated. So I am satisfied, treating the burden as being on her, that she has established that she could not have discovered the mistake with the exercise of reasonable diligence.”

Mrs Curran’s case came to court in 1983. The judge found in her favour, despite the 11 years passing before she discovered that her drawing was virtually worthless.

Milton Silverman is Senior Commercial Litigation Partner at Streathers Solicitors LLP, Wigmore St, London (0207 034 4200) with more than 20 years legal experience. He is heavily involved in work in the art, antiques and antiquities trade.

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