THIS INFORMATION COMES FROM THE AUTHENTICATOR’S IN ART ASSOCIATION THAT FOUND THIS LAW DECISION SO OUTRAGEOUS THAT THEY ARE EVEN TAKING SURVEY’S FROM OTHERS ABOUT HOW THIS JUDGE COMPLETELY IGNORED THE LAW AND ELECTED HERSELF ART EXPERT
The proliferation of lawsuits against authentication boards, foundations, estates and other parties have made experts increasingly hesitant to speak freely, and threatens the natural functioning of the art market. AiA has noticed how prevalent such problems have become and at the same time how unsystematic and controversial many of the methods used for making judgements on authenticity actually are.
Responding to these shared concerns in a constructive manner AiA also wants to disseminate any relevant information about lawsuits that amongst other things demonstrates the differences in legal systems over different countries even within one single continent.
Oliver Spapens, law and art history student, is assisting AiA in tracking, analysing and commenting on Art & Law related matters. Go to the Congress Organization to read more about Oliver.
1# Thwaytes v Sothebys – Sotheby’s is accused by claimant of being negligent due to the fact they failed to recognize a ‘Caravaggio’.
Instance: High Court of Justice Chancery Division
Type: Civil Case
Justice and Art as a package deal: The Judge as a connoisseur, painting conservator and scientist.
The Judgement of the Thwaytes v. Sotheby’s is a truly remarkable one as a result of the rather active partaking in the case by the Judge. Apparently, judges nowadays are not only trained in the field of Law, but also receive intricate knowledge of the Authentication issues. During this case, the Mrs of Justice decided to put this gained knowledge to the test.
FACTS OF THE CASE
Before we proceed to the judgment, a short outline of the case will be given. Central to the case is a disputed work by Caravaggio. It was auctioned during the old master week of 2006 for 42.000 pound by Sotheby’s, marked as being a follower of Caravaggio. At the auction, the painting was bought by a middleman for Sir Denis Mahon, a renowned Caravaggio scholar. After further research, Mahon, alongside several scholars, proclaimed it to be a genuine Caravaggio. Its worth, consequently, being several millions instead of the 42.000 pounds. As a result, Mr. Lancelot Thwaytes (claimant) accused Sotheby’s of being negligent, failing to recognize the true nature and value of the work. Sotheby’s still uphold their initial opinion of the work being a later copy. The painting is now on loan to the Museum of the Order of St. John at Clerkenwell in Londen and is insured for over 10 million pounds.
After explaining the factual side of the case, the Mrs of Justice provides a short analysis of the Art field and the technical side of the case. She devotes several paragraphs (12-15) on the manner in which Caravaggio created his paintings, focusing on the aspects relevant to the case. Subsequently she provides a short insight in the methods used when examining a painting, including the technical aspects involved in this procedure. The most interesting feature of her analysis is to be found in paragraph 31. Here she provides quite a sharp insight in the world of art historical research and connoisseurship. She distinguishes two groups of art historians, namely the classical connoisseur and the technical art historian. Although one may not agree with this analysis, it provides a clear and critical view on the field of “art historianship” as the Mrs of Justice calls it, and is therefore worth citing in its entirety.
“During the course of the trial I was taken to a range of scholarly articles and correspondence written by these witnesses or other Caravaggio experts. From this two points emerge. First, it is clear that an art historian may express his or her current view with considerable certainty based on what may appear to a lawyer to be scant available evidence. A greater freedom of surmise and speculation may also be legitimate in an article or treatise than is generally appropriate for a witness statement. This does not rule out another equally qualified expert expressing a different view with equal certainty based on the same scant evidence. The second point is that the role of technical analysis in the attribution of paintings to artists is still a matter of some debate. Although most scholars would conclude that technical analysis can establish that a painting is not from a particular period or not by a particular artist, its value in establishing a positive dating or attribution is less widely recognised. Some art historians and connoisseurs express concern about over-reliance on, or misuse of scientific data about a painting, whereas some regard scientific evidence as more reliable than the traditional connoisseur’s ‘eye’. This latter point is important here because one of the issues in this case is whether more weight should be placed on traditional connoisseurship skills of assessing the work by visual inspection (albeit assisted with technical analysis) or whether reliable attribution is better arrived at by reliance on technical analysis of the work. Both Dr Lapucci and Ms Glanville naturally tend to the latter camp since their primary expertise is in the technical aspects of art historianship. Although they have seen and examined very many Italian Baroque paintings over the course of their careers, they are less used to relying on their ‘eye’ to assess the quality of a work of art. Their expertise is in undertaking technical analysis of paintings and interpreting those images and they not surprisingly therefore place greater weight on scientific analysis than on connoisseurship. Professor Spear, I find, is more of a traditional connoisseur who has examined x-ray and infra-red images of paintings many times but who still regards the visual examination of the surface of the work as paramount in assessing its potential. On questions of connoisseurship and the visual assessment of quality, I therefore will place greater weight on Professor Spear’s evidence than on that of Dr Lapucci or Ms Glanville.”
The first part of the judgment shows that the Mrs of Justice is quite familiar with the matter at hand, something one would expect from a judge, but sadly lacks far too often in authenticity related cases.
In the second part of the judgement, the Mrs of Justice takes an absolutely staggering decision. In Drake v. Thos. Agnew & Sons Ltd, the judge states that it her duty to judge the expert not the work itself, a statement which in my opinion should apply to all judges. A judge is trained in the field of law, not in the field of art history and should therefore refrain from taking the role of an expert. As Wittgenstein put it: “Whereof one cannot speak, thereof one must be silent.”
The decision of the Mrs of Justice to ignore this caution and decide to actively participate in the art historical and technical debate is truly shocking.
(Par 99.) “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.”
One statement that is particularly bothersome and speaks of a total lack of understanding, is the fact that because it is a Caravaggio, it justifies a lay person’s view. This totally disregards the intricacies involved with the study of a Caravaggio painting, which takes years and years of studying to truly grasp. Discarding this not only shows a total oblivious state of mind, but could be considered outright disrespectful towards the scholars, who have dedicated their lives to their research and study.
As will be shown by the citations underneath, the Mrs Justice does not hold back her own opinion on the works. She makes statements on the stylistic aspects of the work and why it was almost impossible that the painting in question is a Caravaggio. She even decides to participate in the art historical debate of how to recognize a copy (par. 108.)
“I do not see why Caravaggio, being clearly capable of painting a perfect dice holder in the Kimbell Cardsharps, would paint one that was so much less than perfect in a replica work.” (par. 100)
“The feather in the Painting has a shininess that is inappropriate because it suggests a waxiness that ostrich feathers do not have. The artist of the Painting has not captured the barbs of the feather extending over the hat.” (par. 102)
“Is this pentimento significant? I do not see that it is. It is entirely consistent with a copyist initially painting the ribbon too short, then later realising that the ribbon in the original image was longer and so he extended the ribbon in the Painting to make it look more like the ribbon in the Kimbell Cardsharps. I do not consider that this pentimento should have alerted Sotheby’s to the existence of some creative mind at work in the composition of the Painting.” (par. 144)
“The difficulty however with identifying a particular technique with being characteristic of Caravaggio – at least as regards a period copy – is that it is accepted that there is very little research into copies that enables one to say that Caravaggio produced his paintings in a particular way which none of his contemporaries used” (par.108)
A TOTAL DISREGARD OF THE EXPERTISE NEEDED
We would like to underline that we accuse the Mrs Justice of no mal intent of any kind. She probably just got carried away by her enthusiasm for the subject. This however does not justify the intrusive role she has played in this case. A judge may under no circumstance take on the role of an expert. She is free to form her own opinion – as is any human being – but this should be severed from her judgment. Her role as judge is to judge the expert as was rightly said in Drake v. Thos. Agnew & Sons Ltd, not the object at hand. Apart from breaching this basic principal of justice, it also speaks of a total disregard of the expertise involved with art historical and technical research. If the final judgment is the right one – we cannot say – our critique is on the way this judgement has come to being, not on the judgement itself. We do not have the relevant expertise to give a verdict upon these matters, therefore we will not give it, something maybe the Mrs. Justice also should have done.