Caravaggio's lost 'Card Sharps'? (ctd.)
January 19 2015
The full judgement for the case has now been posted online, and it makes fascinating reading. I'll be writing a longer piece on the case, but in the meantime, here are a few highlights and thoughts from me:
- Mr Thwaytes was always likely to lose this case; the claim against Sotheby's was weak, and there was little hard evidence in his favour.
- This was an extremely expensive case; there were 17 days in the High Court alone. The Daily Mail reports that the whole case cost £6m, of which Mr Thwaytes, or his lawyers (I presume there must have been some sort of conditional fee arrangement) will have to pay most. The Mail says:
Mrs Justice Rose ordered Mr Thwaytes to pay £1.8m of Sotheby's £3.75m bill within 14 days.
Although he has insurance worth £2.4m he must also pay his own legal costs put at over £2m.
- The judge, Mrs Justice Rose, really enjoyed the case. She got stuck into every aspect of it, and even had a go at a spot of judicial connoisseurship, concluding (rightly I think) that the 'Thwaytes' 'Cardsharps' was likely not to be by Caravaggio. Usually, judicial enquiries and art history don't go well together - but in this case, Mrs Justic Rose nailed it.
- The judge was impressed by Sotheby's four main employee witnesses, who were: Alexander Bell, head of the OMP dept in London; Matthew Barton, Sotheby's local 'rep' who first made contact with Mr Thwaytes' Ms Letizia Treves, who used to work at Sotheby's in London, but is now a senior curator at the National Gallery in London; Thomas Baring, who also used to work at Sotheby's, running the Olympia saleroom at the time the 'Cardsharps' was sold, but who now runs his own business. Referring to Sotheby's witnesses, the judge said:
I found all five witnesses who gave oral evidence to be honest and straightforward and doing their best to assist the court.
- Mr Thwaytes' expert witness on auction house practice was the London-based dealer, Guy Sainty. His evidence was 'strongly criticised' as having no value at all by Sotheby's legal team, on the basis that he had never worked in an auction house. But the judge, rightly in my view, dismissed such criticism:
There are very close links between art dealers and the auction houses since dealers are the main customers of the auction houses both as consignors of art works and as purchasers of paintings at auction.
- With regard to the painting, Mr Thwaytes relied mainly on the expertise of Professor Mina Gregori, who endorsed the attribution to Caravaggio. Sotheby's called Professor Richard Spear, now of the University of Maryland. He did not believe the picture was by Caravaggio.
- Both sides had their own 'technical' evidence in support of the attribution/non-attribution. It appears that Mr Thwaytes' witnesses, when attesting to the evidential worth of such technical analysis, did not bear up well to cross-examiniation. All of which seems to me more evidence that sometimes 'technical analysis' can be misinterpreted in favour of an attribution.
- A central point in Mr Thwaytes' case was that he 'instructed' Sotheby's to take infra-red photos of the painting, to try and see if it was an original by Caravaggio. Sotheby's denied this, and said only an X-ray - which did not show anything positive with regards to the attribution - was agreed. There seems to have been some confusion on Mr Thwaytes' part between looking at the painting under 'ultra violet' light and 'infra-red' light, the former of course being standard auction house practice when first assessing a painting's condition. On the whole, the judge believed Sotheby's version of events with regard to the question of infra-red.
- The picture was first examined by the whole OMP picture team at Sotheby's Bond Street, where it was decided it must be a copy. It was then decided that the picture should be sold in Sotheby's lesser (but now closed) Olympia saleroom.
- The specialists were not swayed by the results of the X-rays. The judge rejected the suggestion from Mr Thwaytes' legal team that Sotheby's staff were 'not competent' to look at the X-rays themselves - rightly, it isn't rocket science.
- The key Sotheby's specialists had another meeting to examine the picture at Olympia just before the sale, after Mr Baring reported greater than usual interest in the picture. There was understandably some concern that they had made a mistake. But again they decided the picture 'wasn't right'. Sotheby's did not tell Mr Thwaytes about this meeting, and the 'extra interest', which, he said, might have prompted him to withdraw the painting. But the judge rejected that suggestion.
- In relation to the above meeting, Alex Bell gave this interesting summary of how auciton house specialists think in such situations:
"I don't think that is a fair way of putting it. I think the answer -the evidence to us was clear, but we kept on pushing ourselves: can we be making a mistake, and it's the question that we always ask at picture meetings: could this be better than we think it is? Could this be - it's almost like someone asking the question so that you don't ever slip into a frame of mind that something isn't right. From our point of view, obviously, if something is right, it is much more beneficial because we make our money when we sell things and we earn our commission and our revenue is greater the higher of the price. So the possibility of discovering a Caravaggio, which would have been potentially worth much more money, would have been an extremely attractive prospect for us. … I think that looking at the picture very carefully, wiping it over with white spirit which, as you have witnessed today, especially on a picture with a coarse new canvas, evaporates very quickly, you need to keep on doing, to examine all areas of it, to look at the painting in great detail and to have a discussion amongst ourselves, testing each other: what about this area, what about that area, it doesn't surprise me the length of time it took place."
- The painting eventually sold for £42,000 hammer, and after costs, Mr Thwaytes' received £34,468.24.
- The painting was bought by Sir Denis Mahon's 'close friend', Ms Orietta Benocci Adam.
- The painting was underbid by a 'consortium' of art dealers, but we are not told who was in this consortium. They evidently didn't believe that the picture was worth much more than a speculative bid.
- After the sale the picture was cleaned by Sir Denis Mahon. It was then taken to the Ashmolean, but not put on display there. We are not told why, but I wonder if it was because nobody there agreed that it was by Caravaggio. In the end, the painting ended up on display at the little known Museum of the Order of St John in North London.
- The key allegations that Sotheby's were negligent in all this were summarised by the judge as follows:
The allegations that Sotheby's acted negligently can be summarised as follows. First it is alleged that Sotheby's was wrong in its general approach to the Painting, namely to assess it solely in terms of its artistic quality. Secondly it is alleged that Sotheby's failed to notice certain features of the Painting which should have alerted them to its Caravaggio potential. These features should have prompted them to undertake further technical analysis and to seek the views of external scholars. Thirdly it is alleged that Sotheby's was negligent in failing to notify Mr Thwaytes of the Olympia Meeting (and of whatever it was that prompted the Olympia Meeting).
- There were two good summaries of how connoisseurship works. First from Sotheby's Alex Bell:
"Our main consideration in assessing a painting is quality. In the case of a painting suggested to be a copy of a work by a known artist, we will consider whether the painting being viewed is of the quality expected of a painting by that artist. The ability to determine quality is gained by experience in the profession, from looking at all sorts of pictures from the low quality end of the spectrum right up to works by the greatest artists. From that, one develops an 'eye' for quality. It is not something that I can reduce to words easily and, if I were to do so, it would be misleading as it would then appear to be a mechanical exercise of looking at various aspects of a painting, which is definitely not the case. On the contrary, it is necessary to take into account all aspects of a painting together to determine whether overall it is painted with the skill, finesse and energy that might be expected of the particular artist under consideration. In the case of an artist like Caravaggio, this will involve consideration of, for instance, the anatomy of the figures and whether this is convincingly rendered or looks awkward in any way, how the figures relate to each other spatially and how convincing the artist's use of light and shade is in creating a powerful image."
- Next from Rachel Kaminsky, formerly of Christie's in New York, who mentions the famous 'blink':
"The intuitive component is what happens during the first few seconds that an expert stands in front of a painting. Almost instantaneously — in the blink of an eye — the brain processes an enormous amount of information, expertise, knowledge and years of experience to arrive at a hypothesis or series of hypotheses about a painting. These may relate to the attribution, subject, value or other aspects of the painting. It is difficult to explain how this process happens but, astonishingly, these split-second reactions are very often accurate."
- On the subject of 'quality' there was an interesting moment where Mr Thwaytes' legal team tried to probe exactly how this could be assessed, given that such judgements were subjective. As the judge noted:
Both Mr Bell and Professor Spear accepted that assessment of quality is subjective and that scholars of Caravaggio differed in their views of the quality of some works. But they did not accept that this devalued the usefulness of quality as a means of assessing the Caravaggio potential of a work. Mr Bell's evidence, with which I agree, is that any technical shortcomings in Caravaggio's work in no way diminish the overwhelming impression that one is looking at a masterpiece of composition and craftsmanship when one looks at Caravaggio's paintings of this period. A good example is one that was put to Mr Bell, namely the fact that the hands of the figure with outstretched arms on the right side of the Supper At Emmaus in the National Gallery are out of perspective and that the foreshortening is not correctly done. Mr Bell's response was that that did not affect the visual impact of the painting which he described as 'absolutely stunning' and 'extraordinary'. He said that a passage in a painting, such as a hand, can be very convincing and powerful even if it is not anatomically correct or in perfect perspective.
- Mr Thwaytes' legal team tried to suggest that because Caravaggio could be such a variable artist, Sotheby's should not have relied on their own expertise, but should instead have sought outside assistance. The judge rejected this claim.
- In light of the varying assessments of the quality of the painting, the judge was keen to have a go at a bit of connoisseurship herself. As she explained:
There were many passages of the Painting that were praised by Professor Gregori and Dr Lapucci but criticised as of inferior quality by the Sotheby's witnesses. Here I discuss those which appeared to me the clearest. I bear in mind Buckley J's warning in Drake v Thos. Agnew & Sons Ltd  EWHC 294 (QB) about substituting my own assessment of quality for that of the experts. However, it seems to me that the task is inescapable here, given the issues in this case. Further, since the quality of Caravaggio's work lies in its ability to convey to the viewer a naturalistic and convincing depiction of items or people, a lay person may be more justified in forming a view as to quality than he or she can of an artist who paints in a more abstract or impressionistic style.
- You can read her persuasive and thorough analysis on the painting in the judgement from point 99 to 130. But in essence, she didn't like it:
In my judgment there is nothing disclosed on visual examination which should have counteracted Sotheby's view that the Painting was of poorer quality than the Kimbell [Kimbell art gallery in Texas, where Caravaggio's original is held] Cardsharps and did not therefore have Caravaggio potential.
- When asked whether he would have consulted Sir Denis Mahon's view on the painting, Sotheby's Alex Bell was 'very firm' that he would not, and gave this interesting tale of one of his earlier dealings with Sir Denis:
Mr Bell – and all the other witnesses in the case – expressed the highest regard and respect for Sir Denis's lifelong devotion to studying and promoting the arts. But Mr Bell said that in 2006 Sir Denis was already 96 years old and in his opinion and in the opinion of many in the art world, Sir Denis's 'eye' was no longer reliable so far as attribution of Caravaggio was concerned. Mr Bell referred in particular to what had happened in 1998 with a painting called Saint John at the Well. The painting came to Sotheby's with the potential to be a late Caravaggio. The question was whether it was a hitherto 'lost' full-length picture of which there were copies around but also a possible autograph smaller painting just of the head and shoulders of the figure. Sotheby's sent transparencies of the painting to Professor Gregori because she had published an article stating that the smaller head and shoulders painting was an autograph work. Photographs were also shown to Sir Denis. Both Professor Gregori and Sir Denis were emphatic in their view that the painting was not by Caravaggio. Other scholars also expressed the same view. The painting was then cleaned and sold to a third party as 'circle of Caravaggio'. Subsequently Professor Gregori and Sir Denis saw the painting in its cleaned state and changed their minds. They both stated emphatically that they now did believe that the painting was the lost work by Caravaggio. There is a contemporary file note for Sotheby's prepared by Mr Bell recording this incident, from which his irritation at the turn of events is clear. He notes that Sir Denis did not seem to recall that he had previously given a negative opinion or to know that Professor Gregori had also previously given a detailed negative assessment of the painting. As I understand it, the painting of St John at the Well has not been sold since so it is not known whether anyone would be prepared to pay for it the price that a Caravaggio would command on the strength of Sir Denis' and Professor Gregori's changed view. Mr Bell's evidence was that the attribution to Caravaggio is not widely accepted by scholars, though it appears it may be supported by Nicola Spinosa as well as by Professor Gregori and Sir Denis.
- That said, the judge found that had Sotheby's thought more positively about the painting, they would in fact have asked Sir Denis for his opinion, which, as an 'honest man' he would have given, and that therefore Mr Thwaytes would have had at least one positive opinion before the sale. Part of the reason for this was evidence from Sotheby's catalogues that they cited his opinion despite having doubts as to his reliability. It was suggested by George Gordon of Sotheby's that they consulted him later on in his life in this manner 'just to cover our backs'.
- Despite the above finding, the judge concludes that Sotheby's would still have failed to garner enough positive views to call the painting 'Caravaggio' in full, and to sell it as such. She seems not to have placed much emphasis on Professor Gregori's attribution of the picture to Caravaggio.
- One of the views they would have had to have sought was that of Dr. Keith Christiansen athe Metropolitan Museum in New York, who was convinced the picture was a copy. He later wrote, after seeing it post-clean:
As much as I admire the scholarship and connoisseurship of Sir Denis and his enormous contribution to Caravaggio studies, I very regretfully cannot agree with his idea that this is a work by the artist. It seemed to me an obvious later copy -- and not of particularly outstanding quality (to be truthful). Currently, a number of scholars have embraced the view that Caravaggio made "trial versions" for his paintings as well as replicas. So far as I am aware, there is no documentary evidence for this and no reason to believe it part of his practice. I have yet to be shown a single case that convinced me .. On the other hand, there is abundant evidence that Caravaggio's paintings were copied - and copied very well - at an early date and that these copies were later inventoried as originals, which creates a sometimes baffling situation for the sorting out process. Personally, I believe that the over-riding criterion must be quality, and I just don't find the requisite quality in the work in question.
- It's worth noting these comments above in relation to Christie's citing Dr Christiansen's view in their forthcoming sale of a 'Caravaggio' in New York. Personally, I'd like to get Mrs Justice Rose's forensic views on that painting too...
As I say, more on all this later.
Update - a reader writes:
Just a few points to add to your v thorough post–
–This would have been a far more interesting case if the picture had turned out to be “right”. But Sotheby's might still have won.
–The IR point seems silly, as there’s nothing to suggest that S would have changed their mind if they had carried it out. So why was so much time spent on it? Of course I express no view on the judge’s case management or why the costs got to this level.
–Had Sotheby’s gone to Sir Denis for an opinion, would he have felt able then to bid for it (directly or indirectly)? If not, perhaps the picture would have fetched rather less…
It does seem extraordinary that it should cost so many millions to decide a case like this. Perhaps AHN should start up an art history attribution service. Art History Views. I'm joking. But I think most of us could have told Mr Thwaytes and his lawyers to save their money in five minutes.