26 April 2016

Another CITES case

Further to my last post about importing ivory, a recent judgment on a similar case caught my eye. 

In Juliet Forster-Copperi v Director of Border Revenue [2016] UKFTT 0157 (TC), UK Border Force had seized a whalebone sculpture at Felixstowe Docks in September 2014, and that was challenged by an appeal to the First Tier Tribunal. 

The appellant was the creator and owner of the sculpture.  She was a British born artist and sculptress, now in her 80s, who had lived in South Africa and decided to return to the UK.  She had been wrongly told by her shippers that no licence was needed to export the sculpture from South Africa, and she did not even think about whether a licence was needed to import into the UK.  Whales and their derivatives are protected by CITES and hence the seizure.  The bone was very old and had been gathered from the seashore.  Ironically, in the current circumstances, the appellant told the tribunal that the sculpture was part of a series she had been working on which “make a strong statement on man’s destruction of the environment, flora, birds and creatures of the sea”. The tribunal accepted that and that it was “a serious work of art”. 

As in my ivory case, UKBF unrealistically invited the appellant to obtain a retrospective export permit.  That could not happen, as the South African authorities would have to inspect the sculpture and, UKBF having seized it, they would not release it.   

An important issue was whether or not the sculpture was being imported for commercial purposes.  If it was, the UKBF would have had less discretion, as an import licence would not have been granted even if applied for.  The evidence was that the appellant occasionally allowed the sculpture to be exhibited, but not sold, where she had other works for sale, and so any commercial purpose was indirect, and the tribunal accepted that it was more of a personal belonging. 

The original review and decision by UKBF had placed an emphasis on the commercial nature of the sculpture and the lack of licences and concluded incorrectly that to restore the sculpture would be ultra vires, that is beyond the reviewing officer’s legal power.  The judgment sets out the complicated statutory provisions, and the tribunal found that it had to ask the questions set out by the Court of Appeal in Customs and Excise v JH Corbett [1980] STC 231, namely: 
  1. Did the officer reach a decision which no reasonable officer would have reached?
  2. Did the decision betray an error of law material to the decision?
  3. Did she take account of all the relevant considerations?
  4. Did she leave out of account all relevant considerations? 
In addressing those questions, the tribunal found in favour of the appellant.  No reasonable officer could have reached such a decision.  She had made an error in law, in failing to give appropriate consideration to the question of proportionality.  Furthermore, in deciding that there was nothing exceptional, the officer had failed to take account of the appellant being misled by the shipper; the impossibility of the retrospective permit; that she acted honestly and in good faith; the whalebone was very old and found on a beach; it was now a serious work of art; and that the primary purpose was not commercial.  Accordingly it was ordered that UKBF should review its decision in light of the judgment, which ought to result in the return of the sculpture to its owner. 

These cases demonstrate a difference of approach between customs officers and the tribunals.  The customs officers will tend to be blinkered and not ‘see the wood for the trees’ and so apply rules strictly and close their minds to exceptional and broader circumstances.  On the other hand, the tribunal is likely reach a common sense conclusion, and then find the technical provisions to justify it.  The lesson is that, if the legal costs can be justified,  it is worth challenging UKBF decisions when they appear to have acted unreasonably and unfairly.

13 November 2015

Challenging customs

Ivory is a complicated subject, legally and morally. 

The killing of elephants for their tusks is abhorrent, and doing so and trading in the ivory are internationally outlawed.  Where it gets problematical is with art and antiques.  Since prehistoric times, ivory has been used to create objects of art, or components such as piano keys, or to ornament items such as jewellery or furniture, sometimes to only a very limited extent.  Opinions vary as to how such objects should be dealt with, from compulsory destruction, to make a point, to leaving alone, as any wrong involved cannot be undone, and issues of cultural heritage and scholarship can arise. 

Fortunately, I do not have to decide laws, just work with them.  For cross-border ivory movement, the starting point is an international treaty known as CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora) on top of which individual states have their own related laws and regulations.  If those can be satisfied, licences are required for exporting and importing.  

I recently had a case where a highly respectable London dealer, specialising in Indian and South East Asian Art, had bought some 17th century Indian carved ivory Yali brackets at Bonhams in New York.  These small items, the largest only 15cm high, would have formed part of a processional mandapa (temple hall), an elaborate structure that carried sculptures through the streets during special festivals. The brackets are very rare, and examples can be found in the Victoria and Albert Museum and the Los Angeles County Museum of Art. 

Unfortunately, due to an error on the part of the dealer’s carriers, the items arrived at Stansted Airport with inadequate documentary evidence of the US export licence that had been obtained.  As a result the UK Border Force seized the brackets and prepared to destroy them.  Although there could have been a claim against the carriers, the dealer’s main concern was the preservation of these important items.  He demonstrated what had happened, and he even offered to donate them to a museum, but UKBF would not be moved. They said the dealer should have made a new retrospective application to the US, and that he was at fault for not doing so, although such an application appeared to be impossible. 

Enter the lawyers.  The dealer’s legal team consisted of no fewer than three art lawyers: the English barrister Jessica Franses, me as solicitor conducting the case, and US attorney Nicholas O’Donnell, the last being able to attest to the impossibility of a retrospective licence.  A tribunal appeal was launched in November 2013.  Statements were obtained, including expert evidence on the historic and cultural importance of the items, but the UK Government’s lawyers remained unmoved.  Finally, after almost two years, and just two days before the trial, the UKBF caved in and announced that the decision had been reviewed and that the brackets could be collected from the airport, where they had remained. 

There are a number of points to be made.  First, dealers and their agents and contractors must take the greatest care to get the paperwork right.  Secondly, customs organisations can be very strict and inflexible.  Thirdly, they will happily destroy valuable art and cultural heritage.  Finally, it can take a lot of time, effort and determination to get them to see reason and act fairly, but it can be done.

14 September 2015

Street art revisited: Art Buff

A couple of years ago we in the Fladgate art team put our heads together to consider the potential legal problems in trading in street art and produced this article: Street art: the legal issues
It was a topical subject because of the auctioning of Slave Labour, which I covered in my post Selling Banksy street art
Now it is topical again with Friday’s High Court judgment in the case concerning Banksy’s mural called Art Buff.  The artwork had been painted in Folkestone on the wall of an amusement arcade called Dreamland.  The owners of the business, the Godden Family, had the artwork cut out under the supervision of an art dealer Robin Barton who specialises in such trade, under the name Bankrobber.  It then came into the hands of the New York based Kessler Gallery who brought it to Art Basel in Miami where it was exhibited with a price of US$720,000.
Meanwhile, local forces gathered in Folkestone, a town not over-endowed with art.  Proceedings were brought by a local charity, Creative Foundation, which has the objective of regenerating the town through creativity and the arts.  The issue relied on was one that was anticipated in our article, in which we said:
In law, land includes buildings and fixtures, and once paint is on a wall, it becomes part of the land. Therefore, as soon as the artist creates his work, it belongs to the land owner. The owner for this purpose will be either a freeholder or leaseholder, and their respective rights and obligations regarding the art will depend on the terms of the lease, which would almost certainly have been drafted without any thought of street art.
It seems that in the Art Buff case, the Goddens were leaseholders, that is tenants.  The artwork having become part of the building, and therefore part of the land, and absent any other agreement, it belonged to the ultimate freeholder, who presumably was willing to co-operate with Creative Foundation.  The charity then succeeded in getting an injunction from the court for the returning of the work to Folkestone.

11 May 2015

The strange world of private art sales

I am often contacted by new or existing clients who are putting together a deal for the sale of some work of art, usually for an eye-watering amount.
These people are not the current owners, nor the proposed purchasers, but something in between: agents, advisors, introducers, dealers, and often not quite sure themselves.  They are sole traders whose only capital is their art market connections. They usually see themselves as being on the side of the buyer or seller, but sometimes both or neither.  They might be part of a chain of such people that will link the buyer and seller, or they are to one side of the chain.  Rarely will the art pass through their hands, either physically or by ownership.  Their interest is in some percentage or lump sum, but from whom, under what obligation and in what circumstances can be unclear.
No one knows the identity of everyone involved. Parties prefer to be confidential, and for a link in the chain to introduce the links on either side to each other would risk the in-between link being bypassed. The work of art is usually known, and so there is probably an owner ready to sell, but no one is sure if the ultimate buyer is in place, or still being sought.  If in place, unknown alternative chains might already be forming between the buyer and seller.
I can be asked to help to get the deal off the ground.  A lawyer’s ‘letter of intent’ seems to make an impression, because I am often asked to do one.  However, the letter will be carefully drafted to avoid any commitment, and all it really shows is that a lawyer has been brought in, which I suppose indicates some level of intent.
More often, I am brought in at a later stage when the concern is that the proposed deal is falling apart, or an actual deal is being breached.  Given all the vagueness and obscurity, the work required can be quite a challenge.
What I wonder, and no one will ever know, is how many of these deals ever come to fruition.  A few per cent of tens of millions is serious money, particularly for people with no business overheads, and so I suppose one deal every few years keeps the wolf from the door.

20 January 2015

Sotheby's wins The Cardsharps case

We now have the keenly awaited High Court judgment in The Cardsharps case. 
This was a negligence claim against Sotheby’s who had advised a Mr Lancelot Thwaytes in 2006 that his painting of The Cardsharps was a copy of Caravaggio’s painting of that name, currently in the Kimbell Art Museum in Fort Worth, Texas. Sotheby’s described Mr Thwaytes’ painting as being by a “Follower of Caravaggio” and, as a result, that was the basis on which it was auctioned by them, selling for £42,000.
The lady who bought it did so on behalf of her friend Sir Denis Mahon, who was described by the judge as “a lifelong Caravaggio scholar of great renown”.  In November 2007, at a party to celebrate his 97th birthday, Sir Denis announced to the world that after cleaning, restoration, extensive investigations, and input from other experts, it was clear that the painting was a replica painted by Caravaggio himself, and therefore worth many millions of pounds.  Needless to say, Mr Thwaytes was rather miffed to hear this.  He brought a claim against Sotheby’s for damages for negligence.  Rather than claiming and having to prove that Sir Denis had been right and Sotheby’s had got it wrong, which Sotheby’s and some experts still do not accept, the claim was that Sotheby’s failed to spot that the painting had “Caravaggio potential”.
As I have pointed out before (Coleridge Collar), it was not for the court to second guess whether or not Sotheby’s got it right, but whether they were negligent in reaching their conclusion.  The test is what a reasonable and competent art researching auction house would have done, and in this case the judge made clear that, for an auction house of Sotheby’s status, the standards had to be high.  He also held that it made no difference whether the art was just sent for research and assessment, rather than for sale.
In his 190 paragraph judgment, the judge concluded that Sotheby’s had not been negligent.  In response to particular claims, he held that Sotheby’s did not need to obtain external advice; that they were entitled to conclude that the quality was not sufficiently high to merit further investigation; and that nothing on the visual examination, the X-rays and the infra-red images should or would have changed Sotheby’s view.  The judge also held that had the painting been sold with conflicting expert views on its attribution, it might not have sold for much more than it did.
On a personal note, I happened to see the painting last month, where it currently hangs high in a corner of the Museum of the Order of St John, in London.  Aware of the case, I took particular interest in it, and I was not impressed.  I claim no expertise whatsoever, and admittedly the painting was badly lit, but I remarked to my companion that it looked very “flat” for an old master.  I was therefore interested to see from the judgment that Alexander Bell, Sotheby’s Joint International Head and Co-Chairman Worldwide in their Old Master Painting Department, told the court that he had concluded that the painting looked “flat and dead”.  Perhaps I’m in the wrong business!

13 November 2014

Warburg confirms independence

My daily walks between station and office take me past the Warburg Institute, housed in a drab 1950s building in Woburn Square.  My knowledge of the Institute was until now limited to a vague recollection that the disgraced art historian and Soviet spy Sir Anthony Blunt had the title of Warburg Institute Professor. I could not find that on the Institute’s website, but perhaps it would prefer to be known for other things.  That should now be helped, at least in the English legal world, by the judgment in University of London v John Prag and HM Attorney General [2014] EWHC 3564 (Ch).
The first defendant, John Prag, is Professor Emeritus at Manchester University, a member of the Advisory Council of the Warburg Institute and a descendant of its founder, Professor Aby Warburg.  In effect, the case was a dispute between the University of London and the Institute, and it was about how the 1944 trust deed, which founded the Institute, should be construed.  Ten years earlier, Aby had moved, with his art research institute and its material, to London from Hamburg, after the Nazis came to power.
The 1944 trust deed was entered into between the Warburg family, who were known for banking, and the University.  The deed related to a library of books and photographs which was given to the University.  In return, the University was required to house the library, which now has 350,000 volumes, in a suitable building and “keep it adequately equipped and staffed as an independent unit”.  The background to the recent dispute was that the Institute believed that the University wished to integrate it into its other library services.
The court held that the trust was designed to secure the future of the Institute and did not just apply to the 1944 collection, but also subsequent additions and intellectual property rights.  It had to continue as an independent and living institution and could not be integrated into the University.  The building was not part of the trust, but had to be funded by the University.  Also, the Institute could not be debited by way of a share of the costs of University-wide services, but only for actual cost.
The case illustrates what often happens.  What was done long ago with the best of intentions, and most welcome at the time, can become unsuitable or a cause of friction for future generations whose priorities and motives are inevitably different.

21 July 2014

Hirst's Bombay Mix-up

There was an interesting article in The Telegraph last week about a work called Bombay Mix, by Damien Hirst, and the dispute between his certification company, Science Ltd, and a Mr and Mrs Simpson who possess the work.

According to the article, in 1988, Hirst was commissioned to paint Bombay Mix, an early spot painting, on some wallpaper in a house owned by Mr and Mrs Ritblat.  Science claims that, before the house was sold, it was agreed with the Ritblats that in return for the painting being destroyed they would be given an alternative portable painting.  The wall painting was not destroyed and was still on the wall when the house was bought by the Simpsons in 2005.  In 2007, the Simpsons employed specialists to have the painting removed from the wall and mounted on backing board.  The Simpsons now want to sell it.

In the circumstances, Science has refused to issue a certificate of authentication, has claimed ownership and demanded the painting’s return for destruction.

This case raises several issues but, before commenting, I must make two assumptions: that the facts in the article are correct and there are no other relevant facts.  As a lawyer who has had cases reported in the press, I know just how big those assumptions are.
The first issue is whether the painting became part of the building, which is part of the land.  If so, it lost its separate identity and any possible separate ownership.  The first consideration is how easily the item could be removed, for example compare a light shade that could be detached and the light fitting fastened to the ceiling.  For art, one can also consider whether it is decoration or enhancement of the building, for example compare a hung tapestry to a plaster frieze.  Wallpaper forms part of the building, and the fact that specialists were required to remove it intact proves the point.  If Science’s agreement with the Ritblats gave it some right over part of the house, it could have protected its interest by registering it at the Land Registry, which would warn any purchasers of the house.  Failing to do that would result in house purchasers acquiring ownership of the painting.  So I think the Simpsons must now own the painting.  They were free to take the painting from the wall and create a separate item capable of future separate ownership.

Can Science refuse to issue a certificate of authentication, when it knows that the work was by Hirst?  Yes it can, because it is under no duty to the Simpsons.

However, I do not agree with the suggestion in the article that the Simpsons cannot say that the painting is by Hirst, cannot own it and cannot sell it without a certificate from Science.  It is typical of artists and their foundations or estates to try to impose a regime to give them control over the marketing of the artist’s works.  However, they can only base such restrictions on agreements, and cannot bind strangers.  In this case, with all the publicity, and the claims made by Science, no one can question the authenticity and provenance of the work.  That said, whilst there remains a dispute as to ownership, whatever the merits, buyers will be discouraged, and that might be the only advantage Science has, until the matter is settled or comes to court.