A Norwich Pharmacal order was recently made against a London gallery requiring it to disclose information concerning a painting which the claimant contended had been stolen from her. In doing so the court refused to accept the argument on behalf of the gallery that no order should be made on account of the custom and practice of confidentiality in the art world to the effect that the identity of a private buyer or owner of a painting should not be revealed.

“Calanque de Canoubier (Pointe de Bamer)” by Paul Signac (Photo: Manhattan District Attorney’s Office)

The painting in question, entitled Calanque de Canoubier (Point de Bamer), was painted in 1896 by the impressionist painter Paul Signac. The painting was owned by the claimant, Linda Hickox, and hung in her apartment in New York. In early 2012 Ms Hickox entered into an agreement with Timothy Sammons to act as her agent for the purposes of selling the painting and consigned the painting to him. Mr Sammons told Ms Hickox in July 2013 that he had agreed a sale for US$4.85M but was never able to confirm completion of the sale or account for the proceeds of sale or tell Ms Hickox the whereabouts the painting.  Eventually, in December 2014, Ms Hickox complained to the police authorities in New York. She later entered into a settlement with Mr Sammons the terms of which required him to pay her US£4.85M and make a sworn confession that the painting had been sold for that sum. Based on that confession Mr Sammons was extradited to the United States where in 2019 he pleaded guilty to grand larceny and fraud and was sentenced to up to 12 years in prison. No money was ever recovered from Mr Sammons.

In the meantime, through her own investigations, Ms Hickox discovered that the London gallery, Dickinson, had acted for the buyer of the painting and had transferred the agreed price to an account controlled by Mr Sammon within two days of a sale being agreed in October 2012. She also discovered that the painting had probably been shipped to London in March 2012. Various requests for information, including the bill of sale, were made of Dickinson and its solicitors, but these requests were refused on the grounds of confidentiality.

In July 2020 Ms Hickox brought a claim against Dickinson seeking orders under the court’s Norwich Pharmacal jurisdiction for disclosure of information about the location of the painting and details of the transaction including the identity of the parties and the terms of the transaction. In granting those orders the court accepted that Ms Hickox had an arguable case that Mr Sammons had stolen the painting and his purported sale of the painting was a conversion, and that she had such an arguable case against anyone who had taken possession of the painting in relation to the sale or subsequently. The court did not accept that the only wrong identified was Mr Sammons’ theft of the proceeds of sale of the painting.

Significantly, however, in exercising its discretion whether to make the orders, the court rejected the gallery’s argument that confidentiality in the art world was a paramount reason against disclosure. Such custom was not regarded by the court as an absolute obligation precluding compliance with a court order but appeared to be a market custom adopted by art dealers regarding voluntary disclosure. The genuine interest in preserving confidentiality in relation to the location of the painting and the identity of the buyer did not outweigh the interests of Ms Hickox in pursuing a good arguable claim.