This article was written for the YFLA Winter 2022-2023 newsletter published in March 2023.
While issues of disputed authenticity and attribution in art abound, it is rare that such matters are aired in the courts. The art world is famously private, and reputations are closely guarded. The discovery that an artwork is a forgery or has been misattributed can damage the business and standing of everyone involved. Art market participants may choose to bury or privately settle such matters - even if that means absorbing a significant financial loss – rather than allow them to become publicly known.
It is also the case that high net worth individuals finding themselves embroiled in valuable art disputes may eschew the attention brought by a public court case. The chances of litigation proceeding under the radar are highly unlikely where the subject of the dispute is a painting by a famous artist or, as with one of the cases described below, a series of imposing sculptures lined up at the front of a courtroom.
Consequently, the courts are rarely called upon to determine authenticity or attribution disputes. The leading English law case on 'sleepers', for example, is from 2015. Yet, in the summer of 2022, two such cases went on trial in the High Court in London. The judgments, which were handed down at the end of 2022, provide important guidance on the standard of care required of art dealers. They also throw a spotlight on the significant difficulties that can arise in seeking to ascribe a value to an artwork and in identifying whether an artwork is, in fact, authentic.
The two cases in question are QIPCO & Anor v John Eskenazi Limited & Anor  EWHC 3023 (Comm) and Feilding & Anor v Simon C. Dickinson Limited  EWHC 3091 (Ch).
1. QIPCO & Anor v John Eskenazi Ltd & Anor
This case centred on the sale of seven items, six sculptures and a gold bracelet, acquired by QIPCO from John Eskenazi Ltd ("JEL") over the course of 2014 to 2015 for a total sum of US$4,990,000. The items were presented as Asian antiquities dating variously from between 1 BCE to 7th century CE.
While the purchases were made by oral agreement, in each case the accompanying invoices recorded the following statement by JEL: “I declare that to the best of my knowledge and belief the item detailed on this invoice is antique and therefore over one hundred years of age”.
Subsequent examination cast doubt on the authenticity of the items and QIPCO sued, alleging that the pieces were modern forgeries and bringing claims for breach of contract, misrepresentation and negligence. In respect of one item, QIPCO also alleged fraud by JEL and its Director, Mr Eskenazi, personally.
Key issues before the court were (a) whether the items were authentic, as to which, following a battle of the expert witnesses, it concluded that all were inauthentic, and (b) whether JEL, as a leading specialist antiquities dealer, had acted reasonably in giving an "emphatic" and "unqualified" opinion as to the antiquity of the items. On this critical point it concluded that the unqualified attribution was not reasonable and, accordingly, it allowed the claims for misrepresentation, breach of implied term and negligence. However, it dismissed the claim in fraud.
2. Feilding & Anor v Simon Dickinson Ltd
This case was a dispute about the attribution of an 18th century oil painting by French artist Chardin entitled "Le Bénédicité". The Claimants were the former owners of the painting, who brought a claim against Simon Dickinson Ltd ("SDL"), a professional art dealer and recognised expert in Old Masters, alleging that SDL had been negligent in its appraisal and sale of the painting on their behalf.
SDL did not believe the painting to be a "wholly autograph" work by Chardin (i.e. a painting by Chardin solely), so it had sold the painting with the attribution "Chardin and Studio" for a price of £1.15m.
The purchaser, another art dealer, arranged for a deep clean of the painting which unexpectedly revealed Chardin's signature. Shortly after, the purchaser on-sold the painting as a wholly autograph Chardin for a stated price of $10.5m (although it was noted in the case that this declared price was in fact grossly inflated).
The court found that SDL had not been negligent.
While the facts of these two cases are quite different – one centring on the authenticity of alleged antiquities and the other on the alleged misattribution of a painting – and they of course had different outcomes, both gives guidance as to the standard of care required by art dealers and experts.
In both cases, the courts took the view that the standard of care was that to be expected of art dealers with the defendants' particular skill and expertise. In JEL's case, this was a particularly high bar given it was 'a dealer which held itself out as one of the world’s leading experts in the relevant fields'. The court found that JEL had fallen short of this.
In particular, the court in JEL's case noted the "remarkable" condition of the items which in itself raised question marks about authenticity. This was drawn attention to by QIPCO's expert witnesses, of whom there were a number: four in the field of art history and one materials scientist.
By contrast, JEL instructed three experts: two art history experts and one materials scientist. One of JEL's art history experts was unable to attend to give evidence at trial. The other did attend and gave oral evidence but the court noted that it "became clear, fairly rapidly, that he had no real expertise in art history at all, and certainly none that was in any way comparable to or a match for the expertise and experience of [the Claimants' experts]".
The court also commented on the gaps and irregularities in the provenance information provided by JEL, and the presence of false and back-dated documents. Such matters formed part of the claim in fraud brought by the Claimants in respect of one of the items, although this ultimately failed.
The court also noted specific instances where it considered JEL should have undertaken further investigations into the objects it was selling, but did not do so. In particular, for the gold bracelet, an item in respect of which Mr Eskenazi's own evidence indicated that he lacked expertise, there was a "relatively simple scientific test" that could have been performed on the gold to see if it contains cadmium, which, if so, would indicate that it is not ancient. In their closing submissions in court, JEL and Mr Eskenazi admitted the bracelet was inauthentic.
While acknowledging that the issue of when it is necessary/appropriate to consult an outside expert is not straightforward, the court drew the conclusion that:
"…it may be that there are cases where an outside expert should be consulted in any event, depending for example on the ease and expense of doing so, the nature of the outside expert, and the potential value of the piece."
It is also noteworthy that the court appeared to draw a distinction in the approach to paintings and antiquities, suggesting that the latter may require more extensive due diligence to meet the standard of care:
"This is not a case where the question is whether a painting is to be attributed to a particular artist, in which context it has been held that “eye” is important. This case is concerned with the authenticity of ancient objects, and the evidence has persuaded me that the most important factor – in the art historical context – is knowledge of and comparison with the known and undisputed historical record."
This judgment avoids stipulating what steps are necessary in order to discharge the standard of care, acknowledging instead that the standard is fact specific, and should be judged by reference to the actual circumstances faced by the practitioner at the time, and not with the benefit of hindsight. Nonetheless, it seems clear from this case that art dealers will be expected to have undertaken appropriate research, inspection and other work as may be necessary to establish reasonable grounds for their opinions.
In SDL's case, the court was persuaded that SDL had marketed the painting as "Chardin and Studio" because it honestly believed that this was an accurate description, and the court did not consider it had been negligent in forming this view or in the valuation it ascribed to the painting. The court noted that this was "a belief about an Old Master painting held by a man who was a recognised expert in Old Master paintings".
A key point relied on by the Claimants was that SDL had not sought the opinion of M. Rosenberg, the person generally considered to be the foremost authority on Chardin. The judge described himself "extremely unattracted by the idea of a “duty to check” and observed that someone in the position of Mr Dickinson (i.e. a recognised expert on Old Masters opining on an Old Master) who "forms a considered and reasonable view as to the attributes of a work which is within his area of expertise and acts on the basis of that view cannot be said to be negligent simply because his view is not universally accepted, or because he does not seek its validation from some other expert."
The court did, however, distinguish a situation in which SDL believed the likely result of consulting M. Rosenberg was that he would declare the painting wholly autograph. In this instance, the court consider that SDL would have been duty-bound to consult him.
The court also observed that making judgement calls on how the painting should be priced and sold was exactly what SDL was being paid to do. It acknowledged the difficulties for SDL in dealing with an "asset pregnant with risk" since a statement by M. Rosenberg that the work was fully autograph Chardin would increase its value, but his statement that it was "wholly studio" would cause it to plummet. The court observed that: "Consulting M. Rosenberg was not a request for advice, it was a spin of the roulette wheel. I do not believe that Mr Dickinson’s decision not to make that gamble on behalf of his client was negligent."
It seems clear that, particularly for high value items, art dealers are well-advised to undertake thorough research and due diligence into the provenance of the items they acquire, maintaining a clear documentary record of having done so. This is to ensure that any red flags are identified and addressed at an early stage, to avoid finding themselves with artworks they cannot sell, and/or exposure to future litigation from a dissatisfied purchaser. Further, it would seem that for certain types of artwork, in particular antiquities, it is wise to exercise additional caution.
Of course, this approach is not limited to art dealers. Anyone handling valuable artworks – collectors, museums, galleries, etc – should exercise similar caution. After all, while QIPCO won its case, there may be a question mark over the extent to which it will recover the $4.99m judgment debt, particularly since JEL entered administration a few weeks after the judgment. Such matters may serve to reinforce the preference to settle art disputes privately (including via alternative dispute resolution), so it could be some time before we have the opportunity to see further artworks assembled before the judge's bench.