Antiques Trade Gazette 95 back page PERSONAL VIEW Have we reached the limit?


■ New York’s statute of limitations mean that, for the moment at least, Christie’s can breathe a sigh of relief over the great ‘Leonardo’ dispute. But that may change when a three- judge panel meets to consider an appeal in May, explains SIMON HEWITT.


THE Marchig v Christie’s legal battle, which we report on page 4 this week, is hugely interesting – not least because Christie’s refrained from publicising the January 31 judge’s ruling in their favour. There are likely to be various reasons


for that. Mrs Marchig promptly announced she


would appeal, so the case is not over yet. As an octogenarian who vows any


damages she obtains from Christie’s will go to her animal welfare fund, Mrs Marchig does not make a PR-friendly target. Then, the judge’s ruling was on a


technicality: the statute of limitations. In the eyes of New York law, Mrs Marchig had three years to accuse Christie’s of breach of warranty and fiduciary duty, and six years to accuse them of negligence – not 12. Christie’s legal defence has


concentrated almost exclusively on the statute of limitations. That approach has so far been fully justified – in terms both of keeping their noses legally clean, and avoiding having to pay compensation to Mrs Marchig. And the sums are daunting. My understanding is that Mrs Marchig would settle for around £5m. In their legal submissions, Christie’s stated that she was hankering after the £100m at which La Bella was valued by the Simon Dickinson gallery for insurance purposes (in fact, Mrs Marchig’s complaint contained simply a demand for damages, without specifying any amount). By so far winning the legal case,


Christie’s have also sidestepped discussion of what most might consider the hub of the matter: whether they were guilty of letting a Leonardo slip through their fingers. Mrs Marchig and her late husband


Giannino, a noted restorer who worked for many years in Florence and was a trusted aide of Bernard Berenson, had been regular clients of Christie’s for many years, establishing a warm personal relationship with Noel Annesley. In Mr Annesley’s absence, the 1998


consignment – which included La Bella – was handled by François Borne (then Christie’s Head of Drawings) who, according to Mrs Marchig, spent just 15 minutes examining the work which, she told him, her late husband believed to date from the Renaissance. Rather than refuting suggestions that


Christie’s may have acted carelessly, Messrs Annesley and Borne have been noticeably low profile. It was, in fact, easier for me to obtain


an interview about the affair with Christie’s chairman Ed Dolman. The fact that Ed and I go back many


years, to some windswept house sales in northern Belgium (when he was head of Christie’s Amsterdam), and share a liking for beer and cricket, may have facilitated my Top Man access. Still, that didn’t explain why, when Ed


rang me from New York on February 21, he was joined on the line by Christie’s chief operating officer, Lisa King. In cricket terms, that looked like a


power-play. The duo voiced understandable


satisfaction about how the case was going. “Our legal defence was based on the facts of law,” said Ed. “We are confident and hopeful that the judge’s decision will be upheld,” added Lisa. They also expressed surprising


confidence in Christie’s cataloguing of the work as 19th century German. I say surprising because it is one


thing to dispute Leonardo’s authorship, another to insist the work is 19th century when Carbon 14 dates its vellum support to 1440-1650, and a gaggle of academics (backed up by multispectral and hairstyle analysis) date the portrait to around 1500.


Left: the picture at the heart of the dispute – is it a Leonardo or not?


the Marchig v Christie’s case is potentially significant. For a start, if ultimately successful, Mrs


“By so far winning the legal case, Christie’s have also sidestepped discussion of what most might consider the hub of the matter”


Then I asked Ed and Lisa about Mrs


Marchig’s accusation that Christie’s had changed the work’s “Florentine-style” frame without her permission, never returned it, and not replied to her letter asking what had happened to it. This time their reply was less assured: “We believe that we have communicated directly and properly with Mrs Marchig through her attorney throughout this case. We don’t think we have ‘deliberately not responded’. We’ve answered everything we need to.” However, as well as being interesting,


Marchig’s complaint would affect – in the US at least – how long a fiduciary relationship is deemed to exist between an auction firm and a consignor; whether this relationship may be altered by conduct as well as contract; and whether a call from an auction firm official can revive a fiduciary relationship with a consignor long after the auction in question. The Marchigs consigned


works to 32 sales at Christie’s between 1969 and 2009. Is that enough to constitute a fiduciary relationship? No, say Christie’s; the relationship was “on and off”, with an eight-year gap between 1990 and 1998. Does the fact that Noel


Anneseley – after being tipped off by Peter Silverman about the work’s impending reattribution – called Mrs Marchig in July 2009 prove, as Mrs Marchig claims, that a fiduciary relationship was still ongoing at that time? The case also raises the question as to


whether a disclaimer in a consignment agreement (to the effect that an auction firm makes no representations or warranties as to the authenticity of an object) relieves the firm of a duty to attribute the object correctly; and


whether the statute of limitations should still apply if fresh evidence comes to light, however late, that shows due diligence was not performed at the time of sale. Both parties have cited dozens of


State and Federal cases purportedly establishing legal precedent in their favour. Few of these relate to the art market, which adds to the overall complexity of the whole business. Judge Koeltl offered another possible


line of approach to Mrs Marchig’s attorney when he wrote in his January ruling that “If a breach of fiduciary duty claim is not based upon fraud, the statute of limitations begins to run upon the breach, and not when the plaintiff discovers the breach”. Could Borne’s allegedly rather


cursory appraisal of the work, and the disappearance of the frame, constitute evidence of “fraud” in the eyes of the law? We shall see. Mrs Marchig’s appeal


accuses Christie’s of seeking to have “determined as a matter of law issues which are fact-dependent and cannot be resolved without discovery”. It may still be that the two parties


reach an out-of-court agreement, or that Mrs Marchig’s appeal is rejected when it is heard by a three-judge panel in May. But it would be mighty intriguing


to hear the issues “determined by discovery” in front of a jury – whatever the outcome.


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