Don't blame the lawyers

Certain vested interests like to blame lawyers, or their clients, for litigation.  As if it's unjust to get redress for wrongs suffered or contracts breached. 

In recent months a number of authentication committees have decided to disband because of the perceived risk of claims arising from their work.  One, the Warhol Foundation, has been through the mill in defending itself from anti-trust claims brought by a collector who claimed that authenticity was being denied to maintain high prices.  More obvious potential claims would be for getting the authenticity wrong, or misdating where the date can affect the value.

But are authenticity certificates that important, at least for someone buying a work?  Having a certificate must be better than not, unless and until it is shown to be wrong or false, when authenticity of the work is then put into question.  Many are not issued by formal committees or foundations associated with the artist’s studio or estate, but by experts and lesser beings. They may or may not be worth having, but a seller should produce the certificate, whilst not warranting its content.

However, if a certificate is issued or refused improperly, or falsely created, or wrongfully produced, and that causes an innocent party to lose money, then someone deserves to be sued, but I suppose we all have our vested interests in this debate.

Judging attribution

As I've remarked before, court judgments in art cases are always a good read for anyone interested in art.  The background in Mr Justice Newey's 43 page judgment, in the much awaited Vekselberg case, is no exception, and it will be a useful source for students of the works of Russian artist Boris Kustodiev. 

The court held that the painting called Odalisque, bought by Victor Vekselberg's company Avrora for £1.7m at Christies, was not attributable to Kustodiev, and so was a fake.  It did so applying the civil law burden of proof, which is "on the balance of probability". That means at least 51% sure.  It has been reported that Avrora alone spent over £1m on lawyers and experts to get that result, and no doubt Christies' costs were similar.  I'm not sure what alternatives there could be, but litigation is a very expensive way to determine attribution, and even then it is only based on a judge's best guess, based on the evidence before him.

What's in a name?

Dream Bags and Jaguar Shoes were adjacent shops in London's Shoreditch, an area that has become a trendy and artistic neighbourhood in recent years.  The two shops were acquired in 2001, knocked into one and turned into a café, bar and art gallery.  The old shop signs were left in place and the venue used the name "Dream Bags Jaguar Shoes", but known as "Jaguar Shoes" to visiting hipsters like Natalie Portman, Amy Winehouse, me and Beyonce, as the entrance is under that sign.

Valuation: negligent or not unreasonable?

An interesting valuation case has just been concluded: Coleridge v Sotheby's [2012] EWHC 370 (Ch).

It concerns the Coleridge Collar.  That is a gold chain of office that was worn by the judge Lord Coleridge while he was Chief Justice of Common Pleas until 1880, when the post was abolished.  Historically, the chain had been passed from officeholder to officeholder for a nominal sum and so was always owned by the holder.  With no one to pass it on to, Lord Coleridge kept it.  It remained in the family, until it passed to the current Lord Coleridge.  In November 2006, he sold it privately for £35,000, on the basis of a valuation from Sotheby's of £25,000-35,000.  Two years later, the purchasers sold the collar at auction at Christie's for £260,000.  (report)

The main area of difference between the opinion of the appraiser at Sotheby's and the catalogue preparer at Christie's was about the age of the collar.  Sotheby's concluded that it was made in the late seventeenth century, whereas Christie's believed that it dated from the mid-sixteenth century.  Inevitably, Lord Coleridge argued that Christie's were right, but on balance the judge sided with Sotheby's on the point.  Even so, Sotheby's valuation looked remarkably low.

Buying art and avoiding disputes

I've answered the following question for Spear's

As art has out-performed equities in recent years, I am thinking of buying art for investment. How can I avoid the sort of disputes I've seen reported where people buy art and then find out it belongs to someone else or it's fake?

Wedgwood collection available to creditors

Sad news for The Potteries, the five towns of North Staffordshire famous for their manufacture of china tableware and ceramics and the setting for most of the novels of Arnold Bennett.

Over the years, many of the works have closed and the great names disappeared, or moved production to the Far East. One famous name, Wedgwood, is still trading, but it is insolvent and there is a big hole in the workers' pension fund. The trustees of the fund could get some relief from the Pension Protection Fund, but only after trying to get as much as possible from the Wedgwood insolvency, in which the pension fund is the major creditor.

As early as 1774, it was decided that samples of every product from the factory should be preserved and so there is a Wedgwood Museum with a fine and valuable collection.  Unfortunately, the five employees of the museum were also in the same Wedgwood pension scheme, making the Museum Trust jointly liable for £134m and so also insolvent.  The question, on which the High Court ruled yesterday, is whether the collection belongs to the Museum Trust outright, in which case it must be available to creditors, or whether it is held in trust for others, and so protected.  The court has decided that the collection is not held in trust, and so is available to benefit the Wedgwood creditors.  As a result, the collection will probably be sold.

The lesson is obvious.  The museum and its collection should have been kept apart from the rest of the business, whereas the common pension arrangements were its undoing.  There are many other small museums attached to industries and other institutions, and they would be well advised to check their ring-fencing.

Art and money laundering

The bane of every English lawyer's life is having to deal with the requirements of the Money Laundering Regulations.  These hail from the EU, but were adopted and expanded with enthusiasm by the last government. 

For every new client, we have to establish the identity of the client and, if the client is a company or trust, the identity of those who control or beneficially own the client.  Original or certified copy documents showing addresses, such as utility bills, and official photographs, such as passports, are required.  Failure to carry out these checks can have serious criminal consequences for the lawyer or those responsible for compliance, and so they can not be avoided.  For a commercial law firm with international clients it can be very difficult to identify those companies, organisations or beneficial owners, and that is particularly so when acting for the owners or purchasers of art.