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The Open Art Fair opened on March 18, 2020 but closed after two days.

Fair organiser BADA Limited had taken silver dealers Peter Cameron and Linda Jackson to court for non-payment but lost the case.

On December 11 the judge said that, as the seven-day fair had closed after two days, the dealers were only liable for two-sevenths of their bill.

The Open Art Fair, the new version of what was the annual BADA fair in Chelsea, is owned by dealer Thomas Woodham Smith and stand builder Harry Van der Hoorn with the British Antique Dealers’ Association retaining a 20% stake.

The inaugural event opened (following a dealer vote) in hugely difficult circumstances on March 18. As concerns over coronavirus grew, around a quarter of the dealers who had booked stands chose not to attend – some of them getting as far as unpacking at Duke of York Square before heeding the latest government advice on public gatherings and social distancing. For those who remained, vetting was scrapped, attendance was low and the fair scheduled to run for more than a week closed on the afternoon of March 19.

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The exhibitor list at the fair. A quarter of dealers scheduled to exhibit chose not to take part.

Exhibitors who failed to pay for their stands in full were later threatened with legal action. Some are understood to have taken a pragmatic approach – seeking to maintain a positive relationship with a leading organiser – and settled before a court appearance.

In April the BADA Council had offered to give exhibiting members sums equivalent to 20% of their stand rental charges – an ex-gratia payment (it was not described as a refund) available to those who had settled their bills in full.

Cameron and Jackson, who both trade from The London Silver Vaults, were taken to court after paying only 60% of their stand costs via a deposit and a second instalment. Cameron was a BADA member at the time. The pair (whose cases as defendants were heard together) won on the judge’s interpretation of contract law.

Giving his verdict by Skype, Deputy District Judge Greenidge, at the County Court sitting at Mayors and City of London Court, said the defendants should pay for two-sevenths of the contract as they were denied five of the seven trading days. He ordered the remainder to be refunded by BADA Limited together with legal costs within 14 days.

Force majeure

The contract signed by dealers at the fair (almost word for word the same as those used at previous BADA fairs) had included a force majeure clause – one that alters obligations or liabi l ities when an extraordinary event or circumstance happens beyond the control of either party.

However, in this case, the judge agreed with the defendants that the closure of the fair had been a commercial decision that reflected the lack of public attendance.

At the time the government advice had been to avoid ‘non-essential’ travel, with people over the age of 70 or those with certain health conditions urged to consider the advice ‘particularly important’. However, it remained advice rather than the rules that came into force on March 26.

BADA Limited director Thomas Woodham Smith believed this clause was “sufficiently broad” to cover closure due to a pandemic. He notified the court of the intention to appeal on December 30.

He said: “We believe we closed the fair under the force majeure clause and we did so for obvious public health and government guidance reasons. We are appealing on this issue.

“The judge surmised that there was money to be saved by closing early. Not, in our view. Fairs such as ours are not based on visitor revenue.”

Vetting ‘not obligatory’

Cameron and Jackson had further argued that, since the fair was advertised as vetted to BADA standards, a contract had been broken when vetting was withdrawn on March 16.

On this, the judge decided that the dealers’ decision to stay at the fair implied they had consented to the withdrawal of vetting. It was also decided that, according to the contract, the vetting clauses were regulations and standards for the dealers to meet rather than a contractual obligation for the organiser.

Decisions made in the lower courts do not set legal precedent. However, Peter Cameron told ATG there were lessons to be drawn from the episode for both exhibitors and organisers. “It is hugely important as an organiser or as an exhibitor to know the precise details of your contract.

“We will not sign up to any fair in future that does not make vetting a clear obligation because we regard it as essential for a high-quality fair.”