Caravaggio 'Card Sharps' - opening arguments
October 28 2014
Picture: TAN
Today's Telegraph reports some of the opening arguments from the Caravaggio/Not Caravaggio 'Card Sharps' case I mentioned yesterday. It reveals two things: first that the vendor's case is that Sotheby's didn't do all the tests he says he asked them to; and secondly, that Sotheby's PR people have come up with the daftest line of defence.
First, here's the outline of the vendor's (Lancelot Thwaytes) case:
In documents now submitted to the High Court hearing, Mr Thwaytes' lawyers criticised the auction house for negligence and claimed they failed to carry out proper tests and consult experts. [...]
Henry Legge QC, representing Mr Thwaytes, told the court the case was a “very simple story”, alleging Sotheby’s did not do the tests the owner had requested.
"They came back to him and said they had done the X-rays on the painting and said it wasn't Caravaggio, but they didn't do infrared imaging,” he said.
"When it was sold the new owner had it cleaned and submitted it to the tests, including infrared and it was subsequently attributed to Caravaggio.
"At the core this is a negligence case, it is about Sotheby's actions and not attribution."
Mr Legge said: "Believing that the painting had been thoroughly and exhaustively researched and was definitely not by Caravaggio, Mr Thwaytes decided to sell it through Sotheby's." [...]
In the written argument Mr Thwaytes' lawyers said: "Mr Thwaytes maintains that Sotheby's failed in its duty to research and advise upon the painting.
"Proper research would have resulted in Sotheby's consulting with experienced conservators and soliciting the opinions of Caravaggio scholars... which would thereby have established... the painting as being by the hand of Caravaggio."
Here we see one of the main weaknesses in Mr. Thwaytes' case. It is not enough for him to prove that Sotheby's were wrong on the attribution, and that the picture is indeed by Caravaggio. The standard auctioneer's terms and conditions agreed to by Mr Thwaytes when he consigned the picture for sale gives Sotheby's considerable scope to get things like attribution wrong, and not be liable for any damages. Instead, he has to show that Sotheby's were negligent - that they screwed up in a spectacular way by not doing even the basics properly. This negligence test has been well established through previous case law, and the bar is quite high.
I have to say it seems to me, at this stage, that Sotheby's were not negligent, especially if they did an X-ray, which is not at all standard procedure when cataloguing Old Master paintings for auction. An x-ray suggests to me that they in fact took the picture more seriously than other comparable cases. Frankly, it's pretty irrelevant whether an infra-red was done too. For many people outside the art world, things like 'Infra-Red' seem far more important and useful than they really are. But it very often doesn't tell you much at all, and I strongly doubt (though we'll have to see) that in this case IR alone proves that the picture is by Caravaggio. I think it almost certain that Sir Denis Mahon made his attribution on the basis of his connoisseurial view; after all, he didn't do IR before the sale.
We also see mention of Sir Denis having the picture cleaned. Well, most people will know that cleaning a picture can reveal a great deal about a work. But it is far from standard practice that a picture is cleaned before being put into a sale. It's a task that can cost many thousands of pounds, and costs pretty much the same whether the picture is a masterpiece or a dud. So it's often a waste of money. One might ask why Mr Thwaytes, if he was so keen to find out whether the picture was by Caravaggio or not, didn't get the picture cleaned himself. Or perhaps at least conduct some cleaning tests.
All this would be much more straightforward if we could be certain that the picture was by Caravaggio. But that is far from the case, given the experts Sotheby's can produce to say it is not by him. I can't see, at this stage, how Sotheby's can reasonably lose the case.
And now for Sotheby's daft defence. From The Telegraph again:
Sotheby’s denies any accusation of “negligence, causation and loss”, insisting its experts assessed the painting correctly and that “all due skill and diligence” had been applied.
It will argue the painting is “clearly” a replica, citing a range of Caravaggio scholars who support its view.
A spokesman for Sotheby's said: “The catalogue in which the painting was included was distributed among the world’s leading curators, art historians, collectors and dealers – had they deemed the attribution different to that given in the catalogue, the price realised would doubtless have reflected that.”
Phooey. There's a number of points to make here. The picture was in a minor, Sotheby's 'Olympia' sale. These were mid-season sales, so not held during the main Old Master sales in July and December, when many people in the trade and museum world come to London to see what's being sold. The Olympia catalogues were also cursory affairs, with sometimes thumbnail sized images, and hardly any explanatory text. Also, in those days, the online images weren't always that good. Sotheby's don't have their Olympia saleroom any more, mainly because it was a pain in the arse to get to, and few bothered to make the trek out to Hammersmith. In other words, while it's possible that some of the world's 'leading dealers' may have gone there to sniff out a bargain, it's not true to say that 'the world’s leading curators, art historians, collectors and dealers' were all poised to spot the mis-attribution in the catalogue.
And in any case, what sort of a defence is that? Are Sotheby's really saying, well, it's all right if we mess up; your picture will always fetch its true value, because 'the world’s leading curators, art historians, collectors and dealers' all pore over every painting they sell? Clearly not. And regular readers will know that sometimes even the most spectacular discoveries can be found hiding in plain sight, and bought for comparatively little. Even at Sotheby's.
Update - a reader rightly notes:
One would think that Sotheby's defense would include the fact that they didn't benefit from the attribution as a copy, and would have benefited from an attribution as an original, but that they have a greater duty to avoid false positives which would mislead a potential buyer than a false negative. Their investment in the painting shouldn't exceed their anticipated revenue from its sale.
If they catalogued the painting as a Caravaggio they are certifying it to some extent which even the current attribution debate won't support according to the news reports.
Update II - another reader writes:
I fail to see the logic of the plaintiff's argument that the case is not about attribution. The plaintiff can only succeed in a negligence action if he proves he has suffered loss. Mere negligence without loss would not give rise to damages. The loss in this case would presumably be the difference in price between the actual sale price and the price if it were a genuine Caravaggio. Proof that the painting is on a balance of probabilities by Caravaggio would therefore be essential.
