The recent case involving art dealer and former auctioneer Simon de Pury makes clear once again why it is always advisable to get your contracts down in writing. The art world is notorious for doing things on a handshake (or a wink/nudge) and the facts behind this dispute are a perfect example.

The painting at the root of the dispute, Paul Gauguin’s Nafea faa ipoipo (‘When Will You Mary?’)

The case involved the 2014 sale of a painting by Paul Gauguin, Nafea faa ipoipo (‘When Will You Marry?’), from a Swiss family trust to the Emir of Qatar for the outrageous sum of $210 million (we do appreciate art, of course, but let’s remember this is a 40” by 30” piece of painted fabric). The dealer de Pury was the one who brought the Emir’s agent to the trust as a potential buyer and was involved in the early negotiations for the sale. But when it did sell, in September of that year, de Pury was cut out of any commission. He was asking for $10 million, and the trustees refused. So he went to court.

Despite the lack of a written agreement as to (a) whether he would be paid commission and (b) what that commission would be, the judge found in favour of de Pury. In particular, there had been a meeting on 26 June 2014 in London where two of the three trustees had verbally agreed with de Pury that he would get $10 million if the painting sold for $210, which it eventually did. The existence of such an agreement is not entirely evident from the facts as stated (which involved plenty of ‘he said, he said’), but the judge found ‘on balance’ that this was how things must have played out. Nor did the possibility of de Pury breaching his fiduciary obligations by misleading the trust seem to sway the judge.

All would have been much easier had the parties gotten it in writing, rather than being forced to wage a costly war before the High Court. A two-week trial led by two QCs doesn’t come cheap. Or at least it could have been resolved through private arbitration – that way, the publicly-funded court system doesn’t bear the burden and the parties can keep their dealings confidential. The principal lesson is that when you take someone to court, even if you come out victorious, all your little secrets come fluttering out of the hand luggage. And that’s exactly what happened here.

Accusations of dishonest dealing were hurled this way and that, all commented on by the judge, who in the end didn’t particularly trust either side in the dispute. The judge refused to accept evidence from the lead trustee because he simply couldn’t believe the man was telling the truth. The trustees, for their part, called de Pury and his wife ‘dishonest people’ and the judge found de Pury’s evidence ‘deliberately misleading in an attempt to improve his case’. Not exactly a glowing character reference.

In addition, a number of clearly confidential and secretive meetings, discussions and exchanges were dragged into the light of day. De Pury’s dodgy offshore arrangements to avoid paying tax, the wooing of the Qataris, meetings in Basel, holidays in Greece, phone calls and countless email exchanges. It’s all there on the public record, for the world to see. This once again highlights why parties should avoid the courtroom at all costs, even if they think they have the world’s best case. Privacy will inevitably be forsaken. And isn’t privacy the art world’s most valuable commodity?

The example therefore reflects two of the lessons we repeat ad nauseam in our Diploma course in law and ethics: get your contracts in writing and always avoid the courtroom!

The above case is the subject of a case note by barrister Michael Bowmer in the April 2018 issue of Art Antiquity and Law and will be discussed by Michael at our study forum at New College, Oxford on 28 July 2018.