Important High Court decision on authenticity and dealers’ responsibilities

Posted on: January 23, 2023 by

In an important decision handed down at the end of last year (Qatar Investment & Projects Development Holding Co v John Eskenazi Ltd [2022] EWHC 3023 (Comm))[1] the High Court upheld most of the claims brought by an eminent purchaser against a well-known antiquities dealer in relation to the (in)authenticity of the artefacts in question. It is rare that authenticity claims reach the courts, and when they have done so to date, they have tended to relate to the (mis)attribution of paintings. This case, focused on antiquities rather than fine art, thus provides a fascinating insight into the courts’ approach to the duties and responsibilities of an antiquities dealer. In particular, it sheds light on how the principles developed in relation to transactions involving paintings might map onto the trade in antiquities.

The basic facts of the case were relatively straightforward. During 2014 and 2015, the claimant, Qatar Investment & Projects Development Holding Co., a company whose Chief Executive Officer is Sheikh Hamad, a senior member of the Qatari royal family, purchased from John Eskenazi, a specialist London art and antiquities dealer (or his company), a series of seven objects for a total price of US$4,990,000.

‘Head of Goddess’, attributed as ‘Greater Gandhara region – Late Bactrian period, 2nd/3rd century’, one of the artefacts under contention in this dispute

The purchases were all made by way of oral agreements, in each case, evidenced by invoices which contained a description of the respective object accompanied by the dealer’s declaration “that to the best of my knowledge and belief the item detailed on this invoice is antique and therefore over one hundred years of age” [8]. The claimant came to suspect that this was not the case for all seven of the items purchased and following various investigations, concluded that in fact, each of the works was a modern forgery. When the claimant’s repeated requests for Eskenazi to take the objects back and refund the purchase price were rejected, it commenced legal action which resulted in a High Court trial held in July 2022.

‘Relief or Frieze with Emaciated Bodhisattva’, another disputed object

The claims advanced by the purchaser were for breach of contract, misrepresentation and breach of a duty of care (with an additional claim for fraud in relation to one item only, the most expensive piece called the Hari Hara). The investigation of each of these claims shone the spotlight very pointedly on the conduct of the defendant dealer. Ultimately, all three claims would stand or fall on the basis of the answers to these key questions: Did Mr Eskenazi honestly and reasonably hold the opinion that the objects were of ancient origin? And did he exercise reasonable care in describing the objects’ age and origin? The concept of reasonableness thus lay at the heart of the matter. What standard ought the defendant reasonably to have met in describing the relevant objects to the claimant “in the context of a dealer which held itself out as one of the world’s leading experts in the relevant fields” [117].

‘Head of Dionysus’, another contended piece.

Copious factual evidence was presented by each of the parties in relation to the objects themselves and the exchanges between them leading to the sales. In a judgment stretching to 159 pages, Mr Justice Jacobs considered each of the claims in turn.

As regards the contractual claims, the claimant’s arguments under the Sale of Goods Act 1979 (principally that the Act implied into the sale contracts a term that the works corresponded with their description) were rejected by the court. Precedent on this point (in particular the cases of Harlingdon v Christopher Hull, about a fake Gabrielle Mϋnter painting, and Drake v Agnew, about a forged Van Dyck) made clear that descriptions of works of art rarely have the force of contractual terms, and generally amount to no more than statements of opinion. In line with these, and other cases,  Eskenazi’s descriptions of the relevant items in the present case “were neither statements of fact nor contractual promises” [136] . Nor did the ‘emphatic’ and ‘unqualified’ nature of those descriptions “convert a strong statement of opinion into a contractual promise”.

Whilst no terms were implied by the Sale of Goods Act, there was, however, an implied term (as was common ground between the parties) that the defendant honestly and

reasonably held the opinion that the objects were of ancient origin. The key issue, therefore, was whether that ‘emphatic’ and ‘unqualified’ opinion was honestly and reasonably reached.

In addressing this question, the court noted that the relevant case law on standards of reasonableness related mainly to paintings, but provided a ‘useful framework’ for addressing the issues [147]. Within this framework, the court’s task was to determine whether it could be said that no reasonable leading specialist antique dealer would have concluded that these objects were ancient, and expressed an unqualified opinion to that effect.

In a particularly insightful section addressing this question (C4 [145 – 161]) the court drew heavily on well known misattribution cases such as Thwaytes v Sotheby’s and Luxmoore-May,[2] summarising a number of key points arising from these judgments. On the issue of expert evidence, an interesting distinction (more fully explored later in the decision)[3] was made between the question of authenticity as it applies to paintings versus antiquities. As regards the former, the art of connoisseurship, or the exercise of the expert’s ‘eye’ for a work bears significant weight, whereas Jacobs J. was “not persuaded that the assessment of whether a piece is or is not ancient is quite the same as the ‘eye’” discussed in the Drake case (mentioned above) [152]. Where antiquities are concerned, matters such as archaeology and knowledge of relevant religions, as well as the examination of records of similar works will be important, requiring an inquiry which stretches significantly further than visual inspection.

The factual inquiry into the (in)authenticity of the objects in question was based on three main types of evidence: factual evidence (focused on provenance information), art history and materials science. Having firstly considered the nature of these categories of evidence in broad terms, Jacobs J. examined the credentials and performance of the expert witnesses, then proceeded to investigate the specific evidence presented in relation to each of the contested objects (a discussion which, in total, consumed almost 100 pages of the decision).

On the key question as to the reasonableness of the defendant’s descriptions, the court reached the same verdict in relation to all of the objects sold. It was not persuaded that there was a reasonable basis for such descriptions and concluded, ultimately, that “no reasonable leading specialist antique dealer would have expressed an unqualified opinion” that the object in question was ancient (at [722] in relation to the Hari Hara).[4] Important evidence supporting such a conclusion included: that some of the items were apparently in ‘immaculate’ condition which would be highly unusual for a genuinely ancient artefact [702]; that the object had even survived, a notion described as “astonishing…[and]… so remote as to be fanciful” in one case (the Head of Krodha, purported to be 1500 years old) [748]); the minimal provenance for a number of the pieces, and the defendant’s apparent failure to seek it out. (The Hari Hara, for example, was claimed to be purchased from a dealer in Vietnam “about whom Mr Eskenazi knew nothing, and whose name he did not even know”, demonstrating an attitude described as ‘cavalier’ by the claimant (a submission with which the court agreed) [715]).[5]

On the basis that the defendant’s stated opinion as to the ancient origin of the objects was not proven to be honestly and reasonably held, the claimant succeeded in its claims for misrepresentation, breach of contract and negligence. It was therefore entitled to rescind the contracts and to damages for breach of contract and negligence, leading to an award of restitution or damages equal to the amount paid for the objects.

The decision serves as a stark warning to those dealing in antiquities that they must pay close regard to their practices in buying and selling such works. The market in fake antiquities is known to be rife and demands that the highest standards of due diligence and ethical conduct are observed. In assessing whether a dealer’s opinion on a work is reasonably held, the dealer’s ‘eye’ and his longstanding reputation in the field will count for little in the face of compelling evidence that further investigation was warranted. A dealer who is unable to demonstrate that he conducted adequate provenance investigations, sought scientific analysis where appropriate, researched the relevant historical records and followed up any ‘red flags’ will find himself dangerously compromised. The message is clear, and those who fail to heed it risk very serious consequences.

Image credits: Judgement documents – Qatar Investment & Projects Development Holding Co v John Eskenazi Ltd [2022] EWHC 3023 (Comm)

[1] Unless otherwise indicated, all quotations in this article are taken from the High Court judgment delivered on 29 November 2022, the relevant paragraph number being indicated in square brackets following the quotation.

[2] Luxmoore-May v Messenger May Baverstock [1990] 1 WLR 1009.

[3] See, for example, [651] where the defendant’s plea that it was reasonable for Mr Eskenazi to have reached the conclusions he did about the objects, based, at least to some degree, on his ‘eye’ developed over 50 years of experience did not stand up to the court’s scrutiny.  Jacobs J. declared himself to be “doubtful, on the evidence  presented in this case, that ‘eye’ is a particularly significant factor in assessing the authenticity of an ancient object…. [rather, in the case of antiquities]… the most important factor – in the art historical context – is knowledge of and comparison with the known and undisputed historical record”. [704]

[4] Noting that the inauthenticity of one object, a Serpent Bracelet, was admitted by the defendant (it being an item of jewellery about which the defendant attested to having no relevant expertise).

[5] A claim for fraud in relation to the Hari Hara was rejected. Such a claim required the claimant to prove that the defendant sold the object (as a statue dating from the 7th century), knowing it not to be authentic or not caring whether or not it was authentic. The court concluded that the evidence, including that Eskenazi paid a substantial sum for the piece and that there were genuine commercial negotiations about it, was consistent with Mr Eskenazi believing that he would, if successful, be acquiring a genuine antiquity. [723 and following]