Last week (March 8) Southern Eastern Circuit Judge HHJ Richard Roberts dismissed the case as there had been no error in law. He agreed with the earlier (December 11) findings of Deputy District Judge Greenidge that BADA Ltd had been in breach of contract because the fair, scheduled to run from March 18-24, closed early.
As the seven-day event had closed after two days, dealers Peter Cameron and Linda Jackson were only liable for two-sevenths of their bill. They were awarded a refund and costs.
The Open Art Fair, the new version of what was the annual BADA fair in Chelsea, opened 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. 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.
Exhibitors who failed to pay for their stands in full were later threatened with legal action by the organisers (the fair is co-owned by dealer Thomas Woodham-Smith and stand builder Harry Van der Hoorn, with the British Antique Dealers’ Association retaining a 20% stake).
Some settled, although a number of similar cases remain outstanding. Cameron and Jackson, who both trade from The London Silver Vaults, were the first to be taken to court for non-payment.
The contract signed by dealers at the fair had included a force majeure clause – one that alters obligations or liabilities when an extraordinary event or circumstance happens beyond the control of either party. Woodham-Smith believed this clause was sufficiently broad to cover closure due to a pandemic.
However, the judge agreed with the defendants that the closure of the fair had been a personal decision rather than a mandate. At the time the government advice had been to avoid ‘non-essential’ travel but it remained a recommendation rather than a legal obligation until lockdown rules came into force on March 26.
Decisions made in the lower courts do not set legal precedent and Woodham-Smith told ATG he would welcome the opportunity to make his case again.
“We believe we closed the fair for obvious public health and government guidance reasons. On the morning of the fair opening I thought we were putting our best foot forward and giving trade a chance. By the end of the day I thought I was being irresponsible.
“We have another case outstanding and we will start again. It is nobody’s idea of a good solution, but we believe it is a question of sharing the pain. We paid our suppliers and contractors and we expect our exhibitors to do the same.”
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.