The law and artistic merit

In January 1995, Morison J gave judgment in De Balkany v Christie Manson & Woods Ltd after hearing seven experts debate, on historic and scientific grounds, whether a painting was or was not the work of Austrian artist Egon Schiele. The case, which was decided in favour of the plaintiff when the painting was determined to be an original, is not unique.

One only has to watch television on a Sunday afternoon to learn that the world of fine art attracts expert opinion like no other. This is something of a mixed blessing for lawyers confronted with the prospect of running litigation that will usually depend in no small part on the performance of the chosen expert or experts. The problem is, how do you pick out the stars in a cast of hundreds?

Clearly, if the issue is the market value of an item, then contacting a commercial gallery or auction house is essential. Sotheby's, Christies and Spink are used to fielding experts in any number of areas.

Similarly, specialist loss adjusters are often retained to give valuation evidence. However, if the problem is one of authenticity or provenance, both of which might demand a more academic and less commercial determination, then it is often wise to cast the net wider to take in academic institutions, state-run galleries and museums.

The perception that these usual avenues of investigation are fail-safe is perhaps deceptive. In 1985, some Apulian vases were offered for sale at Sotheby's. The Italian Government claimed they were the product of clandestine excavation. This seems to have been supported by the curator of Greek and Roman Antiquities at the British Museum, who gave evidence that a three-volume publication listed every known and legally excavated vase from Apulia, and that they were not among the 6,000 catalogued up to 1983.

The auctioneer maintained there was “no evidence that the vases had come from any official or unofficial site”, and proceeded with the sale.

The matter did not lead to litigation, but was dealt with under the code of conduct which the auction house had signed. Questions of illegal export and alienation of artwork are very often dealt with under these codes rather than through the courts. Perhaps the best and most recent example of this is the incident when the Channel 4 programme Dispatches secretly filmed a Sotherby's old masters expert in Milan offering to smuggle a painting by the 18th century artist Guiseppe Nogari to the UK, in March last year. Currently, Sotherby's are carrying out an internal investigation into the incident.

The London art market and British academic and cultural institutions occupy an eminent position in the world of fine art and antiquities, and so it is common for a litigant to search no further than London for an expert. However, there are occasions, where, for example, the case concerns an obscure foreign artefact, when peculiar local knowledge, is required.

In such cases, the litigant would be well advised to contact Unesco, which keeps records of local experts. But there is no international directory of recognised experts in fine art and antiquity. Given that there are international registers of lost or stolen artwork, such as the Art Loss Register, the establishment of such a directory, whether under the Unesco umbrella or otherwise, would not only serve the interest of lawyers, but also service the other areas where fine art experts are commonly used.

For example, the Department of National Heritage regularly has recourse to expert opinion in determining whether a particular artefact satisfies any or all of the Waverley Criteria for the granting of an export licence. Lawyers can and do become involved in applications for such licences, but it is the expert in tandem with the Secretary of State who determines whether a particular item satisfies the following criteria:

that the object is so closely connected with our history and national life that its departure would be a misfortune;

that it is of outstanding aesthetic importance;

that it is of outstanding significance for the study of some particular branch of art, learning or history.

The question of expert determination is one that is topical in all avenues of alternative dispute resolution, but it would appear that certain issues peculiar to art and antiquities would lend themselves remarkably well to that sort of determination.

Morison J in the Madam De Balkany case stated: “I remind myself that this is a judicial decision based upon the evidence and it is not, and does not purport to be a contribution to the academic debate, in which I am not qualified to participate.”

One might add, that being said, that an informed assessor might have arrived at his decision in half the time and would perhaps have halved the cost to the litigants.

There appears little doubt that with the value of fine art increasing and the growth of public interest in the self-governing practices of auction houses, museums and galleries, art and the law are on a collision course. Clearly the expert will play a pivotal role in the tangled mess that could result.