is an English High Court art law case, concerning the liability in negligence and breach of contract of a leading auction house for the professional opinions and valuations they provide where an interested art historian later has a different opinion affecting its value.
This case involved a copy of Caravaggio's The Cardsharps and whether Sotheby's view that it was indeed a copy and not an autograph work by Caravaggio was correct, or at least, reasonable.
The claimant was Lancelot Thwaytes, the seller of the painting and the defendant was Sotheby's, his auctioneer. Thwaytes was represented by Henry Legge KC (of 5 Stone Buildings) and Andrew Bruce (of Serle Court). Sotheby's was represented by Andrew Onslow KC and the late Richard Edwards (both of 3 Verulam Buildings).
The case was heard in 2014 by Rose J (as she then was). She was later elevated to the Court of Appeal and in April 2021 to the Supreme Court.
Background 'Caravaggiomania' Caravaggio (1571–1610) was an Italian Baroque painter who despite, or perhaps because of, his premature death has acquired a great reputation and whose artwork regularly commands high prices; for example, The Denial of Peter, sold in 1997 to the Metropolitan Museum of Art of New York, is rumoured to have been sold for around ten million US dollars (equivalent to £9.7 million in 2021). Only 60 paintings are widely acknowledged to have been painted by him, adding scarcity to what Caravaggio scholar Richard E. Spear has called "Caravaggiomania". The popularity for the artist and his works has been expressed by other artists seeking to emulate his style and in other media such as graphic novels, film (both in 1941 and 1986), television, and even a namesake town, train, racehorse and restaurant.
The original Cardsharps
The Cardsharps is one of Caravaggio's best known works. He painted it around 1595 for his patron, the Cardinal del Monte. The original painting remained with the late Cardinal's collection as it was inherited, separated and sold. In 1895, it was sold to an unknown collector and was lost for just under a century until it reappeared in Zürich, Switzerland, where it was recognised by the Director of the Kimbell Art Museum of Fort Worth, Texas, USA and bought in 1987. Given its subject, a dupe being cheated at a game of cards, it has often served as a tool for political satire, making it a particularly recognisable and popular example of Caravaggio's work.
Thwaytes family collection Lancelot Thwaytes, the claimant in this case, inherited his collection from his uncle William Thwaytes, who was a "prolific collector with an evident taste for Caravaggio".Spear, p 31. In 1947, he bought a painting which would later come to be identified as the lost original of The Musicians. William Thwaytes sold the rediscovered masterpiece to the New York Metropolitan Museum in 1952. He died in 1962, leaving his estate and collection on trust for Lancelot (then aged 4).Spear, pp 31–32.
Facts
Lancelot Thwaytes sold a copy of Caravaggio's The Cardsharps through Sotheby's on 5 December 2006 for £42,000 after an appraisal by Sotheby's that it was made by a 'follower' of Caravaggio. The purchaser bought the painting for and on behalf of Sir Denis Mahon, an art historian and collector. After having the painting cleaned and conducting 'extensive investigations', Mahon proclaimed it to be an autograph replica of the original painting: that it was painted not by an unnamed artist, but by Caravaggio himself.Thwaytes v Sotheby's EWHC 36, .
Thwaytes then brought two overlapping claims, one for breach of contract and another for negligence. In both he alleged that Sotheby's had been negligent in failing to notice "features that should have indicated to them" that his painting had "Caravaggio potential" and was not a copy.
Simply, Thwaytes argued that Sotheby's had failed to discharge their duty of care towards him in failing to identify his painting was: either by Caravaggio, or that it at least had potential to be by Caravaggio, thus causing him to lose potentially millions of pounds, given that he sold the painting for comparatively little. If authentic, Thwaytes argued, the painting could potentially be "worth up to £50 million".
The case was heard over sixteen days in October and November 2014 by Rose J, as she then was.Thwaytes v Sotheby's
Judgment and issues
Sotheby's applicable standard of care The parties were in agreement that the standard of care Sotheby's owed Thwaytes under their contract was the same as that which Sotheby's owed him under the general tort of negligence.Thwaytes, The exact scope of the applicable standard of care, however, was subject to controversy. Sotheby's argued that it owed Thwaytes no amount of special consideration but merely their "normal" care and diligence, i.e. that which they would owe to any other client.Thwaytes, .
Lack of special circumstances Thwaytes, on the other hand, took the view that there were special circumstances in his case which meant that he was owed a higher standard of care than normal.
By and large, Rose J dismissed Thwaytes' arguments. In particular, she rejected the idea that, because a painting was consigned to be studied (as Thwaytes did initially) rather than to be sold, a higher standard of care applied. She thought that it would be unfair for an auction house to be held to a higher standard in a situation where they have no certain expectation of obtaining a commission versus one where they can be reasonably certain they will receive one.
Thwaytes also argued that Sotheby's should have been put on notice because the painting came from the same collection as The Musicians. Sotheby's contested this. The judge, while not denying that this could be a relevant factor, held, however, that there was no evidence that Thwaytes' uncle William was a collector noted for his 'eye'. She did accept that Sotheby's reference to him in the 2006 sale catalogue probably piqued Mahon's interest but concluded that, as William Thwaytes had not in fact realised the potential his painting had until it was spotted by two other art historians, Sotheby's had no reason to think that this painting had hidden potential.Thwaytes, .
Lastly, it was argued that he had expressed his firm belief to Sotheby's that the painting was made by Caravaggio and that this meant Sotheby's was obliged to perform to a higher standard and carry out further tests and enquiries. Rose J, however accepted the evidence proffered by Sotheby's that consignors often have "a strong emotional belief" in their paintings' authenticity and rejected the argument that it could affect the applicable standard, holding that "an auction house must approach each painting on its merits regardless of the state of knowledge or expertise of the consignor."Thwaytes, .
Thus, Rose J accepted Sotheby's argument that their applicable standard of care was that which 'normally' would operate.Thwaytes, .
Interpreting the test in Luxmoore-May v Messenger May Baverstock The judgement in this case also discussed how to apply the 'normal' standard of care applicable to cases in relation to auction houses which was laid down by the leading Court of Appeal case of Luxmoore-May v Messenger May Baverstock. 1 WLR 1009 In that case, an auctioneer from a provincial auction house overlooked a pair of small paintings of foxhounds which turned out to be by George Stubbs, and which sold for £840 and later for £88,000. The court in Luxmoore-May went on to hold that the standard of care for auctioneers was "to express a considered opinion as to sale value of the foxhound pictures and for this purpose to take further appropriate advice".Thwaytes, . Furthermore, Rose J took up and accepted the distinction identified by the Court of Appeal in Luxmoore between "provincial" and "leading London" auction houses.Thwaytes, Thwaytes, While in Luxmoore the auctioneer was seen as "provincial" there was no dispute that in this case Sotheby's qualified as a "leading London" auctioneer. This had several implications.
First, it meant that, while provincial auctioneers could to be held to a standard akin to that of a "general practitioner", auction houses like Sotheby's can be expected to have a much larger depth and breadth of expertise and tools available to them as well as access to the senior scholars and art historians as well as having experts available to research paintings before putting them on sale.
Second, leading auctioneers were held to be required to spend sufficient time with each lot so that they can, where possible, "arrive at a firm view" as to how it is to be sold (i.e. as an original, copy by a pupil, by a mere follower etc.).Thwaytes, .
Third, an auctioneer of Sotheby's stature should not be able to rely on the poor condition of a painting. This contrasts with the auctioneer in Luxmoore-May, who was able to argue that he had been asked to investigate the two foxhound paintings as part of a lot of fifty in a warehouse.
Fourth, a provincial auction house's standard of care was held to demand them to be more aware of the limitations of their own expertise, particularly when compared with the depth of expertise of Sotheby's or Christie's.Thwaytes,
Rose J did however accept the suggestion put to her by Thwaytes' counsel that, given that the number of leading auction houses is very limited, in the Old Masters' market possibly just Sotheby's and Christie's, the standard of care for these auction houses should not be limited solely to the practice at these selfsame firms, so as to prevent bad behaviour from seeping and being acceptable.Thwaytes,
Nonetheless, this case confirmed that there is a different standard of care depending on the standing of the auction house and that the standard relevant in this case was that of a "leading London" house.
Discharging the standard of care and allegations of negligence The scope of Sotheby's duty of care determined, the next question was whether Sotheby's had indeed discharged the standard of care described above. Thwaytes put forward three possible ways in which Sotheby's had been negligent: first, their general approach to assessing the artistic quality of painting; second, that they failed to notice specific visual artistic features in Mahon's painting that "should have alerted them to its Caravaggio potential" such that they ought to have sought further advice and analysis; finally, that Sotheby's failed to communicate their doubts appropriately with Mr Thwaytes (the "Olympia Meeting" point).Thwaytes .
Sotheby's general approach to assessing paintings The first way in which Sotheby's was alleged to have been negligent was that their whole approach to assessing works of art was flawed. By their own account, for Sotheby's, the "main consideration in assessing a painting is quality".Thwaytes, This involved one or more of Sotheby's experts applying their connoisseur's eye to a painting in order to assess its artistic quality and to compare it to known works by the same artist and thus decide if the skill it exemplifies matches that which the expert would expect to find in such known works. Under this approach, there is an initial determination of its quality and thus likely attribution which then determines whether the painting should be investigated further using scientific techniques like x-ray or ultra-violet imaging.Thwaytes,
Variability in Caravaggio's early works