Old master of defence
Fending off an £11m ‘Caravaggio’ negligence suit
In January 2015, the High Court decided that Sotheby’s, represented by Freshfields, had won its battle against Lancelot William Thwaytes, the former owner of an alleged ‘Caravaggio’ painting, ‘The Cardsharps’.
The artwork was auctioned in 2006. Sotheby’s described it as a copy of a well-known and acknowledged Caravaggio work that had been painted by an anonymous follower of the famous Italian artist. The art historian Sir Denis Mahon bought the painting for £42,000.
One year later, Sir Denis publicly announced that the painting was, in fact, an ‘autograph replica’ – a second version of The Cardsharps painted by Caravaggio himself.
Mr Thwaytes sued Sotheby’s for £11m, claiming that it had negligently advised him about the painting’s attribution and worth.
Sotheby’s has a long-established reputation for having one of the most highly regarded old master paintings departments in the world. That reputation was suddenly under threat, particularly given the substantial press interest the case attracted.
Cases involving the authenticity of an artwork rarely reach trial. We ran a two-pronged defence: the painting was indeed a copy and correctly described and, in any event, Sotheby’s had not acted negligently.
This required extensive expert evidence to show that there were not only differences between the painting and the original but also similarities with other copies.
The experts testified on the history of the paintings, artistic techniques, such as lighting and palette, and issues such as paint structure, canvass and framing.
Unusually, one of our witnesses was allowed to give the judge a physical demonstration of how an old master painting was appraised, bringing a centuries-old work into court and using the judge’s own white spirit to look behind the surface varnish.
The judge commended our witnesses, finding them to be honest, straightforward and helpful.
The technical challenge
Bringing the original Cardsharps and the copy into court was not possible and, since quality was of critical importance, paper-based images (with differences in ink and print quality) would not have been adequate.
Conveying quite esoteric concepts such as ‘connoisseurship’ and ‘quality’ in a way that could be understood by the judge and translated to legal terms also presented a unique challenge.
To overcome this, we set up high-resolution LED screens that could display X-ray, infra-red and photographic images of the paintings that were as close as possible to the physical versions, enabling our experts and witnesses to bring their evidence to life.
We also used Opus 2 live transcription services, providing instant access to trial documents hot-linked to pleadings and written submissions and enabling real-time interaction among the legal team.
These methods saved time and money and were well received by the judge, who was introduced to the technology for the first time.
Following a four-week trial, Mrs Justice Rose ruled in favour of Sotheby’s old master team (and implicitly against the painting). She decided that the auction house had not been negligent and was entitled to rely on the team’s ‘connoisseurship and expertise’ in assessing the quality of the painting alone.
Not only was the outcome a comprehensive victory for our client, the case also set an important legal precedent in clarifying what duties a leading auction house owes to sellers and how those duties should be satisfied in the future.
In the judgment, the judge recorded her gratitude for the ‘exemplary way’ that counsel had presented the ‘fascinating case’ and commended the work put in by the legal teams and expert witnesses.