AMANDA CLAIRE MARIAN FEILDING OR CHARTERIS, COUNTESS OF WEMYSS AND MARCH & Anor v SIMON C. DICKINSON LIMITED

A professional art dealer is judged by the standard of the ordinary skilled dealer possessing the relevant special skill. A dealer is not negligent merely because another expert might take a different view, or because the dealer does not obtain independent validation of a considered assessment within the dealer’s expertise.

A duty to consult another expert arises where the dealer considers that consultation likely to improve the attribution, or where the dealer is genuinely uncertain. There is no general duty to check with a superior expert. A warning duty arises where the dealer knows, or ought to know, that the assessment is likely to be challenged; it does not extend to fanciful possibilities.

An agent entrusted with discretionary authority may make appropriate judgment calls without repeatedly referring decisions to the principal.

The claimants, trustees of the Wemyss Heirlooms Trust, instructed the defendant art dealer to sell a Chardin painting described in Rosenberg’s catalogue raisonné as a copie retouchée. The defendant sold it to an art dealer for £1.15m as “Chardin and Studio”. It was later marketed as a fully autograph Chardin and sold onward for a substantially higher stated price.

The claimants alleged that the defendant negligently assessed the attribution, failed to consult Pierre Rosenberg, failed to warn them of the possibility of a higher price, and sold to an intermediary rather than undertaking a broader marketing campaign. The court also considered the counterfactual approach to loss, causation and valuation if negligence had been established.

1. Duty and standard. The defendant’s duty was governed by the standard in Bolam v Friern Hospital Management Committee: what would an ordinary skilled professional art dealer possessing the relevant special skill have done? The contractual mandate and the surrounding evidence showed that the defendant had discretionary authority to conduct the sale and obtain the best reasonably available price.
2. Assessment and consultation. Mr Dickinson honestly and reasonably regarded the painting as containing both Chardin’s work and studio work. The court rejected the suggested binary distinction between wholly autograph works and pure copies. A professional is not negligent merely because the assessment is contestable or because it is not confirmed by another expert. Consultation with Rosenberg would have been required if Mr Dickinson believed it likely to improve the attribution; it would not have been required if he expected a damaging opinion. Genuine uncertainty would likewise not itself establish negligence.
3. Warnings and disclosure. The defendant had no duty to warn of a fanciful possibility that Rosenberg might declare the painting wholly autograph. A positive obligation to raise an issue arises where the adviser knows or ought to know that the view taken is potentially likely to be challenged. The enhanced disclosure approach in Montgomery did not apply outside the special medical or regulated-adviser contexts considered in Montgomery and O’Hare.
4. Marketing and price. “Chardin and Studio” was a logically available and accurate attribution on the evidence. The absence of comparable sales made the £1.15m valuation a judgment call, but not a negligent one. Selling to another dealer was not negligent without evidence that the defendant knew or ought to have known of a higher-value identified client.
5. Damages. The court rejected a general loss-of-chance approach where the value or likely outcome could be assessed on the evidence. On the assumption that negligence had been established, however, the court applied a generous but evidentially grounded counterfactual and estimated a likely sale price of £4m. The claim itself was dismissed because negligence was not proved.