Thwaytes v Sotheby's

A leading international auction house must exercise the skill and care reasonably expected of specialists in that field. Its duty includes a proper examination of a consigned painting, sufficient time to reach a firm view, and appropriate use of available specialist knowledge. Attribution remains an exercise of judgment, and a court must avoid hindsight. Genuine disagreement between experts does not itself establish negligence. A leading auction house may ordinarily rely on its specialists’ connoisseurship, provided they examine the work competently and recognise when external advice is required. The court dismissed the claim because Sotheby’s’ assessment of the painting as a period copy, its handling of the x-rays, its decision not to commission infra-red analysis, and its failure to report a further pre-sale viewing were all reasonable.

Mr Thwaytes consigned a painting depicting Caravaggio’s The Cardsharps to Sotheby’s. Sotheby’s catalogued it as a seventeenth-century copy by a follower of Caravaggio and sold it for £42,000 plus commission. After the sale, Sir Denis Mahon announced that it was an autograph replica by Caravaggio.

Mr Thwaytes claimed damages for negligence and breach of contract, alleging that Sotheby’s should have recognised features suggesting Caravaggio potential, obtained further technical and scholarly assistance, and told him about a further pre-sale examination. The central issues were the scope of Sotheby’s’ duty, whether its assessment and investigations fell below the required standard, and causation.

1. Nature of the duty. The contractual and tortious standards were the same. The duty was the ordinary duty owed by a leading international auction house when a painting was consigned for sale. Asking Sotheby’s to research the work, or not yet having decided to sell it, did not impose a more onerous duty.
2. The relevant standard was informed by Luxmoore-May v Messenger May Baverstock [1990] 1 WLR 1009, but Sotheby’s had to meet the higher standard expected of a leading specialist house. Its specialists had to be properly qualified, give the painting adequate examination, and use available scholarly assistance where their own limitations made that necessary. Attribution remained an exercise of judgment, and the court had to guard against hindsight.
3. Sotheby’s were entitled first to assess the Painting by connoisseurship and quality. The disagreement between Professor Gregori and Sotheby’s’ experts did not make Sotheby’s’ view unreasonable. Applying the approach in Bolitho v City and Hackney Health Authority [1997] UKHL 46, the court considered the competing opinions and found Sotheby’s’ assessment logically sustainable.
4. None of the alleged visual differences, including the additional space above the figure’s hat, the black mass, small compositional variations, different lighting, the bow, or alleged decoration on the dice holder, should have alerted a reasonable auction house to Caravaggio potential. The x-rays disclosed no significant creative process or major pentimento requiring further investigation. Sotheby’s were entitled to form a preliminary view on the x-rays themselves.
5. Sotheby’s were not obliged to commission infra-red analysis or advise Mr Thwaytes to incur that expense. In any event, the later infra-red images disclosed no feature that should have altered the conclusion that the Painting was a copy.
6. The failure to tell Mr Thwaytes about the Olympia Meeting was not negligent. A further expert viewing did not produce a change in attribution, and there was no general obligation to report ordinary pre-sale interest or repeat examinations.
7. The claim was dismissed. The judge made no final determination of the alternative quantum issue, including whether loss could be based on failure to obtain a price reflecting scholarly opinions that were in fact wrong.