The fine art of litigation

The landscape of law covers a broad canvas. Dearbiall Jordan paints a picture of a man in love with his work.

Dr Michael Carl, head of Eversheds‘ German desk in London, must be as precious as the stolen paintings he is famous for returning to their rightful owners.

As I am led down a labyrinth of corridors to his cluttered corner office, Carl says the black-suited spectre hovering behind us is his “bodyguard”. Why Carl needs a minder (who also conveniently doubles as a senior business development executive), I never quite figure out.

But for someone who declares at the beginning of the interview “I have nothing to hide”, it is strange that he or his firm feel the need to have his hand held.

After all, Carl’s 30-year career in looted art cases reads like a John Le Carre novel, involving the Berlin Mafia and grey-market art dealers with code names like “Big Mamma”.

His latest, arguably landmark, case sent waves through the UK and German art communities.

It involved sealing the return of a stolen Dutch masterpiece, The Holy Family with Saints and Angels by Joachim Wtewael, to the German city of Gotha and the German government.

The painting was originally stolen by a member of the Red Army between 1945-46 and was then transferred to the Soviet Union. Carl says not much is known about its movements until it turned up in 1987 in the Moscow art market.

According to Carl there were a number of plans to try and get the painting out of Russia until the then Togolese Ambassador’s wife – code named “Big Mamma” – stepped in to help the passage of the painting to the West.

After much movement, the painting ended up in the possession of a Panamanian company, Cobert Finance SA, in 1989. It was finally put up for sale at Sotheby’s in 1992. At this point it was withdrawn due to questions over its provenance.

In September the presiding judge, Mr Justice Moses, changed German civil code under which goods can only be claimed during a 30-year limitation period, stating that the law favours the true owner of property, however long the period.

Last month Carl topped it off by securing u1m costs for the claimants.

This is no small feat considering the fact that many cases of stolen art and antiquities never get to court as the complexities involved mean extended court time and high costs.

And there has certainly been much interest in the art world recently.

A 1997 conference on Nazi gold, held in London by the Foreign Office, raised the possibility that thousands of paintings plundered by Germany could still be in circulation.

Carl is clearly enjoying the notoriety the case has brought him and takes great delight in showing me a photo of himself holding the stolen 17th century painting.

But he is not arrogant about his achievement. In fact, this now famous legal art expert is endearing, clearly passionate about his work.

He calls the three reproduction paintings hanging in his office, the originals of which he was instrumental in returning to their rightful owners, his “trophies”.

And when asked if there is one particular missing painting – there are an estimated 300,000 in the world – he would like to recover, he simply says: “I love them all.”

But then lawyers acting in this field are an unusual breed. Those I spoke to displayed the same characteristic enthusiasm shown by Carl.

As Tony Griffiths, a litigation partner at Nicholson Graham & Jones, puts it: “We get passionate about it because that is the way the client feels.”

Many talk of their work in terms of morals.

Carl points out a print hanging on his wall of the Dutch humanist Erasmus, commenting: “Looking at that face makes me think of truth and values.”

He says: “This is someone I tell all my clients to take a good look at. You are looking at someone to whom you cannot tell anything he hasn’t heard before.”

There is no doubt about Carl’s commitment to the art world as he reveals he is actually a commercial lawyer specialising in M&A work. Carl admits: “I have never studied history of art; it has been part of my own interest for a long time.”

His work in stolen art is “a very nice and interesting sideline”, he says, nodding in the direction of Eversheds, which allows him to do the work. It is difficult to know whether his minder is pleased with the reference – so far she has not written any notes in the book she has open on her knee.

The area of art law is as individual as the lawyers who advise on it. Most cases involving art and antiquities actually tend to come under areas such as litigation and insurance.

Only a small handful of firms, for example Mishcon De Reya and Farrer & Co, have dedicated art law departments.

One lawyer says: “It is a weird one because under UK law there is not a specific area dedicated to it.”

From the very beginning of his career, Carl has crossed paths with the world of stolen art.

Leaving his native Germany, he travelled to New York in 1968 to spend a year at Scribner & Miller before qualifying as a German lawyer in 1972.

It was during this time in the US that he became involved in two art cases. The first involved a Rembrandt self portrait which was stolen with two other paintings by mutineering German soldiers at a time of civil war in 1921. The second involved two Durer portraits of Hans and Felicitas Tucher, stolen in 1945.

The Rembrandt reappeared in 1966 when it was handed back by the US government to Germany and there followed an eight-year case over the rightful owner. Carl’s client won.

Detailing the long histories of these paintings, Carl is painstaking in his explanation, continually asking me to make sure I get the details right. Interspersed with quoting Voltaire and glances at his Eversheds colleague, Carl conducts a mix of an art history lecture and a detective story.

It is on the case of Durer that Carl becomes particularly excited. The painting was looted by Americans just after the war but then vanished until 1966.

“A famous photographer from Time Life saw it in the staircase of a Brooklyn lawyer. It was published and then the world knew about it. The lawyer claimed he had bought it at his doorstep and said he had picked out the only two unsigned from the others.”

Carl then leans in and says conspiratorially: “It also turns out he was rather closely related to the house of Wildenstein.”

The controversial French-Jewish Wildenstein family are known as some of the most pre-eminent art dealers in the world. The family is currently involved in a libel action after a book claimed the late Georges Wildenstein collaborated with the Nazis in the Second World War.

During the large gap between the Durer case and the recovery of the Wtewael painting, Carl became a dual qualified lawyer in London, where he was articled at Herbert Smith in 1974 before being admitted as a solicitor in 1979.

He then left the firm to join Frere Cholmeley Bischoff in 1987, which merged with Eversheds in August 1998.

Ironically, Carl acted against his former employer Herbert Smith in the City of Gotha case.

Pamela Kiesselbach, a dual qualified senior assistant solicitor at Herbert Smith who acted on behalf of the defendants, speaks highly of Carl’s skills as a lawyer: “He is renowned for being a specialist in international law,” she says.

However, while she believes Justice Moses’ decision was a moral victory, she says: “It is my personal view that the judge didn’t decide the issue of German law correctly. The result was disappointing. I didn’t expect it to go that way.”

But for Carl, it is difficult to overestimate the importance of the case.

“It not only has had an effect on English law of limitations, but is actually unique because it is the first time an English judge has made German law.”

Carl adds that the case has also helped further the need for museums worldwide to re-examine stock where there may be doubt about the heritage.

Antony Mair, head of EU and competition at Stephenson Harwood, which advises auction house Christies, concedes the case illustrates the interaction between the German limitation period and the extent to which the UK recognises it.

But he says: “I’m not sure I see it as a landmark case. Art law has become a very sexy topic at the moment and there are very few lawyers who undertake these cases.”

Mair adds: “Carl did the job well and coped with all the issues but whether one case makes you an expert in the field – I don’t know.”

For the moment, Carl is content to carry on his normal working practice of dealing in German and UK commercial law. “The most important thing is that these things go back where they belong.”

For all his experience with the looting and plundering of the art he loves, Carl denies he has become cynical. “No, I am more realistic,” he smiles.

The Eversheds minder has sat patiently through Carl’s stories, obviously pleased that he has kept to the subject of high art and philosophy rather than letting slip any of the firm’s commercially sensitive information.

“Voltaire says ‘It is human fantasy that fixes the price on items of frivolity’,” Carl proclaims. “There is no intrinsic value to art, it is only what someone is prepared to pay.”

And with that he looks not to his minder but to his inspiration, Eramus.
Michael Carl
Head of German desk in London