Antiques Trade Gazette 63 back page A LAWYER WRITES Revisiting legal levels of liability


■ MILTON SILVERMAN shows why one of the industry’s most famous court cases can never be recalled too often


A PROVINCIAL auctioneer who occasionally rings me telephoned a couple of weeks ago on a point that was concerning him. He was having a very busy day and whilst rushing past the front counter, there was an enquiry from an elderly customer to a brand new assistant in relation to some pots which the customer had brought in. The auctioneer could see the fresh-faced assistant looking quizzically at the items. Ceramics being very much the auctioneer’s ken, he gently pointed out to his new employee that this was Sèvres porcelain, that their experienced consultant should be dealing with this one and directed the customer accordingly. He then began to speculate what would have happened if he had not been passing through and they had failed to make a proper attribution. As he put it: “We can’t be expected to get everything right, we just don’t have the resources”. I responded that there was, in fact, a well-known case which went to the Court of Appeal, in 1989, very much on the point.


The name of the case was Luxmoore- May v Messenger May Baverstock. The facts of the case were as follows: Mr Luxmoore-May consigned two paintings of foxhounds to local auctioneers Messrs Messenger May Baverstock of Godalming, Surrey, a fi rm from which he had earlier retired as a chartered surveyor.


Messenger May’s representative, a Mrs


Zarek, did not think very highly of the paintings. She estimated their value to be about £30 and took them away “for research”, these being her words, which she wrote on a receipt handed to Mrs Luxmoore-May. Mrs Zarek then consulted a colleague, a Mr Paul Thomas, a consultant to the auction house and former art dealer. Mr Thomas had no formal art qualifi cations; his expertise arose from his own dealing in paintings. Mr Thomas concurred with Mrs Zarek’s view that the paintings were not very important. Mrs Zarek told the court that the


pictures “had interested me slightly”, and on her own initiative took the two pictures to Christie’s London rooms. The two foxhound pictures, together with one other, were inspected by Christie’s and a few minutes later were handed back to Mrs Zarek. In the judge’s words: “Nothing favourable was said about the foxhound pictures”. The two pictures were entered into an auction at Messenger May’s saleroom on October 10, 1985. More than 1000 catalogues were sent out and on the day of the sale a number of dealers were present. The bidding crept up in £20 bids in a straight contest between two dealers before being knocked down to one of them for £840.


In December 1985, a dealer (perhaps the original buyer at Messenger May) consigned the two paintings to Sotheby’s, who catalogued the pictures as being by George Stubbs A.R.A. They were sold to Spink for £88,000. Spink subsequently sold them on, presumably at an even higher sum.


LETTERS TO THE EDITOR


SIR – DACS say the Artist’s Resale Right is being extended to heirs and benefi ciaries for the following reasons: “The fi nancial support from the Right will be enormously helpful in


recognising the work that heirs and benefi ciaries do through conserving artists’ estates including the costs of storage, conservation, cataloguing, research, restoration, assessment of provenance, and the identifi cation of fakes.” Does anyone seriously believe that artists’ work from the 1940s and ‘50s


is still largely in the hands of heirs? No, the majority will already be on the secondary market, appear at auction, be purchased (by a dealer) who will ‘add value’ by undertaking all of the above ascribed to the heirs by DACS in order to resell. Isn’t there an enormous irony here? The majority of ‘heirs and benefi ciaries’ of up to 70 years ago may well have


no idea their relative’s work ever existed and will certainly have long lost track of it – until that ARR cheque lands on the doorstep, that is.


Derek Newman Newman Fine Art


SIR – The Artist’s Resale Right is being imposed exclusively on those in the European Union and is not charged by the UK’s major competitors, the United States and China. The art market is truly global and the very real concern is that this tax will drive business and jobs into the arms of our competitors. For example, we have a fabulous Barbara Hepworth sculpture in our next 20th Century Art sale, on January 10. Even if this piece only sells at the bottom of its guide price of £60,000, it will incur a £2400 tax which would not be levied elsewhere. Despite repeated requests, the Government


seems to have done nothing to prevent this new tax being introduced in the fi rst place. When the Prime Minister announced that he


Mr and Mrs Luxmoore-May sued Messenger May for damages. Aspects of the Court of Appeal judgment are still recognised as crucially important to anyone doing business in the auction market:


1. It was decided that the


responsibilities assumed by Mrs Zarek on behalf of Messenger May were to: “express a considered opinion as to the sale value of the foxhound pictures, and for this purpose to take further appropriate advice”.


2. It was accepted by the Court of Appeal that Messenger May, along with other provincial auctioneers and valuers, may reasonably be described as “general practitioners” and that: (i) the required standard of skill and


care allows for differing views, and even a wrong view [my italics], without the practitioner holding that view (necessarily) being held in breach of his duty; (ii) 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 (iii) 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 benefi t of hindsight. So, encouragingly, some good practical common sense here from the eminent Lord Justices.


The leading judgment of Lord Justice Slade added “one important rider”, as he put it: “The valuation of pictures of which the artist is unknown pre-eminently 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 fi rst to spot a ‘sleeper’ or the potentiality of a ‘sleeper’.” However, in an imperfect world


there are always situations where an auction house may have been negligent. Frequently where they acknowledge this substantial payments are made to aggrieved vendors or purchasers without having to go all the way to an expensive High Court trial. Last year, there were a number of sleepers which received worldwide publicity. One which springs to mind was a small portrait brought into the Kent branch of Bonhams believed to be the work of an obscure 19th century British artist named Matthew Shepherson, value apparently £300. It was then sent to another regional offi ce where the director of the pictures department spotted something different. Eventually it ended up with the Old Master department in London and was sent to a specialist. The result was a sale at a hammer price of £3m. No court claims this time, just good news all round.


Milton Silverman is Senior Commercial Dispute Resolution partner at Streathers Solicitors LLP, Wigmore St, London (0207 034 4200) with more than 20 years’ legal experience.


email: editorial@atgmedia.com Heirs argument doesn’t hold water Why has Whitehall not acted on ARR?


had exercised his veto in Brussels on behalf of the City of London, he stated that he would act to similarly protect all British interests. But this government has ignored the impending imposition of this duty and its potential effect on a major British industry.


Guy Schooling Sworders Auctioneers Stansted Mountfi tchet


We welcome your correspondence. Please email the Editor at: editorial@atgmedia.comThe Editor reserves the right to amend correspondence where necessary for publication.


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64