The High Court has dismissed a multi-million pound negligence claim [Feilding & Anor. v. Simon C. Dickinson Limited [2022] EWHC 3091 (Ch)] brought by the Countess of Wemyss and her co-trustee against an art dealer over the sale of the painting “Le Bénédicité” by Jean-Baptiste-Siméon Chardin.

A sister version of the disputed artwork, Le Bénédicité, which belongs to the Louvre Museum and is attributed as ‘School of’ Chardin.

The painting had been acquired by the Countess’s ancestors in 1751 and been in the ownership of the family ever since as part of the Wemyss Collection at Gosford House in Scotland. Having instructed the well-known old master dealer, Simon Dickinson of Simon C. Dickinson Limited, to conduct the sale, the Countess’s claim arose by reason of the stark fact that, just six months after Mr Dickinson sold the painting in July 2014 for £1.15 million, it was re-sold in January 2015 for the equivalent of £6.9 million.

The Countess claimed Mr Dickinson had been negligent in various ways in the way he had conducted the sale and in so doing had failed to exercise the care and skill to be expected of a reasonably competent professional art dealer. It was alleged that Mr Dickinson had wrongly formed a judgment that the painting could not be classed as a wholly autograph work by Chardin. In addition, it was alleged that as part of his preparation for the sale of the painting Mr Dickinson should have consulted the leading authority on the work of Chardin and the author of the definitive catalogue raisonné on the footing that had he done so the attribution of the painting could have been improved. Alternatively, it was alleged that Mr Dickinson should have sought instructions from the Countess and her co-trustee as to whether or not to take that step on the footing that this was properly a decision for them to take and not one for him.

Other allegations were made that Mr Dickinson should have marketed the painting as ‘by Chardin’ rather than ‘by Chardin and Studio’, that his valuation of the painting at £1.15 million was wrong, that he was negligent in selling the painting to another dealer as this constituted a warning that a better price could be obtained elsewhere on the basis that a dealer would not be buying unless confident that he could sell it on at a substantially higher price.

The judge rejected all of these allegations. As he pithily remarked, a significant part of the problem was that “Chardin worked in a way which could have been calculated to inconvenience the art trade”. As an artist for whom painting did not come easily, particularly towards the end of his life, Chardin frequently painted replicas of his own work. The painting itself was indeed one of four copies of the same subject. Moreover, as a popular artist, it was accepted that there was a flourishing industry in the production of Chardins which extended beyond the replicas Chardin made himself. Adding to the confusion was the fact that it was widely considered that Chardin himself sometimes approved and in some cases signed such replicas.

A further difficulty was that in the catalogue raisonné the painting had an anomalous status. Whilst recorded in a way that put it on the right side of what appeared to be a bright line between works identified as by Chardin’s hand and other works, the painting was nonetheless the subject of a qualification by being described as a “copie retouchée”. This was expressed to refer to a situation where Chardin had allowed copies to be created of his most famous paintings which he would then touch up.

With that background, the judge found that Mr Dickinson could not be said to have been negligent in his judgment that he was unable to present the painting to the market as a wholly autograph Chardin. He also exonerated Mr Dickinson from the allegation that he should have consulted the author of the catalogue raisonnéas this was tantamount to “a spin of the roulette wheel”. Had this resulted in a verdict, which Mr Dickinson believed from previous discussions some years earlier the author might give, to the effect the painting was in fact a studio copy, this would have destroyed its value. As to the allegation that Mr Dickinson should not himself have taken that decision, but presented it as one for the Countess and her co-trustee to take, the judge held that this judgment call was precisely the kind of call Mr Dickinson was being paid to make when instructed to handle the sale, and not to refer it back to the Countess and her co-trustee could not constitute negligence. Similarly, the other allegations as to the marketing and valuation of the painting were also dismissed, the judge finding that there was no evidence to suggest that Mr Dickinson knew or should have known that he could have sold the painting directly to the dealer’s client and should not have proceeded with the sale to the dealer.

In the end, whilst nonetheless determining that the painting might well have sold for £4 million had the author of the catalogue raisonné been consulted and confirmed the painting as an autograph work by Chardin, or interpreted “copie retouchée” as meaning a wholly autograph work, the claim was comprehensively dismissed.

Michael Bowmer, Barrister, 4 New Square, Lincoln’s Inn, London WC2A 3RJ

Image credit: Wikimedia Commons, public domain.