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An eminent member of the Worshipful Company of Arts Scholars recently contacted ATG about a comment made by a judge in an action known as the ‘Dickens porcelain case’.

The judge apparently stated that “Christie’s were not experts”, and the member thought therefore that an article on experts may be interesting.

The comment from the judge was made in 1908 and appears to be no more than a throwaway line.

There are in fact many specialists at auction houses who could be approached as experts if needed. However, given the erudite nature of the typical ATG reader, the topic of expert witnesses is worth exploring.

Proper procedure

The question as to whether an expert witness will be required in any action before the courts will be determined long before the trial takes place, at a procedural stage. The court will consider what the issues to be determined are in the case, and whether these issues justify expert evidence.

I had a case recently where the parties’ counsel put to the judge that expert evidence was indeed required.

The judge, very much alert to the expanding costs being incurred in taking the matter all the way to trial, decided that expert evidence was not needed because, in his view, the factual evidence of the witnesses attending would be adequate to determine the issues at stake. Each case, and the relevance of expert evidence or otherwise, is determined on its own facts.

An excellent art world example of where the court allowed more than one category of expert evidence to be heard was in a well-publicised High Court trial, between Lancelot Thwaytes and Sotheby’s, judgment in which was given in 2015.

This concerned a claim by Mr Thwaytes that Sotheby’s had inadequately researched a painting which he had consigned to the auction house, and, in the judge’s words had “failed to notice certain features of it that should have indicated to them that it had ‘Caravaggio potential’, that is to say that it might actually be by Caravaggio rather than a copy”.

Central to the claimant’s grievance was that the painting was sold in 2006 by Sotheby’s for a hammer price of £42,000 for the claimant. Subsequently the acknowledged purchaser, Sir Denis Mahon, ‘a lifelong Caravaggio scholar of great renown’, announced to the world that the painting was an autograph replica of Cardsharps painted by Caravaggio himself, the original being in the Kimbell Art Museum in Texas. If so, then it would be worth a great deal more than £42,000.

There were various issues central to the claim such that, as the judge put it: “The expert evidence in this case fell into 3 categories; (i) art historical evidence and connoisseurship; (ii) technical evidence about the painting and the Kimbell Cardsharps; and (iii) evidence of auctioneering practice and fine art valuation.”

Six of the best

The result was that both claimant and defendant had three different experts each to deal with these three different aspects: six expert witnesses in all before the court. The court would have considered at a much earlier stage the necessity for all this expert evidence. Here they decided it was all justified.

For those who may be interested, the judge’s detailed analysis of these six expert witnesses’ evidence can all be found in the High court case report: ‘Neutral Citation Number: [2015] EWHC 36(Ch)’ *. It is fair to say it is one of the more interesting art law case reports.

Briefly, the experts were: (i) lifelong academics steeped in the work of Caravaggio; (ii) conservators and restorers who had worked at the world’s major museums including the Louvre, the Courtauld, and the Metropolitan Museum in New York; (iii); experienced art dealers with a deep knowledge of the practice of the major auction houses.

The judge absorbed it all, decided what weight to give each discipline, and whose evidence she preferred, from each of the six. Inevitably there is a degree of subjectivity involved even with a High Court judge. Analysis by the judge of the expert evidence from both sides formed a very large part of the 57-page judgment, and she came firmly down on the side of Sotheby’s, assessing that it was not negligent.

As to whom you may wish to call an ‘expert’ in a particular field is again, inevitably, a matter of some subjective judgment.

It is common for experts to disagree and the judge is free to call their expertise into question. In the Caravaggio case the judge accepted the sincerity of opinions held by all experts involved, and commented that they were all ‘extremely knowledgeable and dedicated to their work’.

Each side pays for its own experts. For years it has been the practice of the courts in many cases to appoint a ‘joint expert’. This avoids the obvious point that each side’s expert may be biased (or perceived to be) in favour of their own client who is paying them. In more substantial cases each side often has its own expert witnesses.

Dealer knowledge

When TEFAF announced in late 2018 that it would exclude art dealers and auction house specialists from all its fairs’ vetting panels to avoid any potential conflict of interest, there was an outcry from some art dealers, who pointed out that frequently, due to their extensive handling of works in their specialised areas, dealers may well be the greatest experts in their fields rather than museum curators or academics. This is a fair point of view.

In the Thwaytes v Sotheby’s case real-world dealers were the experts appointed by both sides to give evidence as to auction house practice, given their undeniable lifelong practical experience of it. Sotheby’s expert had worked previously at Christie’s, and had been head of Old Master paintings there at one point.

Due to the topics under scrutiny at trial, it was inevitable that some of the expert witnesses had previously worked or had had some sort of professional relationship with auction houses, such as Christie’s or Sotheby’s itself.

To this extent, although the parties at trial mentioned a possible conflict of interest arising from this, Mrs Justice Rose recognised, in what was not a throwaway line, that “it is difficult to find an auction-house expert with relevant experience who is not involved with either Sotheby’s or Christies”.

* bailii.org/ew/cases/EWHC/Ch/2015/36.html

Milton Silverman is senior commercial dispute resolution partner at Streathers Solicitors LLP, London.