What possible recourse is there against the expert? An aggrieved owner, unconvinced by the negative opinion of the prime expert and in possession of other expert opinions supporting his view that the work is genuine may be tempted to seek redress through the courts.

Under English law, there are several possible heads of claim, one of which is slander of goods. An action here will lie where the defendant maliciously publishes a false statement on the claimants property and where the publication causes the claimant to suffer special damage. The claimant must show that the statement was both false and malicious: in order to show malice, the claimant must prove that the defendant had a dominant improper motive to cause him injury.

The owner may also have a claim for negligent misstatement, which is the making of an erroneous statement (often a professional opinion or advice) to another person in circumstances where the giver of the statement owes a duty of care to the recipient of it. In order to succeed, the owner/claimant must prove both that the statement was false and that it was made negligently. Therefore, in order to avoid liability for negligence, an expert must apply his expertise diligently: he may be liable if his opinion proves to be wrong or if he applied his expertise badly, for example, in failing to draw the proper conclusions from comparative analyses, or if his reasoning was flawed.

The claimant must also prove that the defendant owed him a duty of care. An artists committee may have assumed a duty of care, although this is by no means certain, and it is important to appreciate that the duty may be expressly disclaimed by the committee either before or at the time the opinion was expressed. Fraud is another possible head of claim, albeit a tough one to prove. If the expert committee is a public body and therefore subject to public law, its decisions may be susceptible to judicial review. In the UK, a court may not overturn a decision taken by an expert committee simply because it disagrees with it.

Instead, the Court will consider whether there has been any illegality (ie; whether the public body has misdirected itself at law), whether the decision was irrational (ie; whether the decision was so outrageous that no reasonable person would have made it) or whether there was some procedural impropriety. It is far from certain whether the English courts would accept jurisdiction over the decisions of a public body authenticating works of art: this would depend, in part, on whether such body performs a public duty and whether the rights of citizens are affected by its decisions. Courts may be inclined to exercise their powers of judicial review if they find that decisions by such bodies are not otherwise open to challenge. A parallel may be drawn from the decision of the Court of Appeal to allow judicial review over a decision of the Panel on Takeovers and Mergers (R. v Panel on Takeovers and Mergers, ex-parte Datafin plc and another [1987] QB 815).

In the US, owners have claimed violation of anti-trust laws on a few occasions, for example the anti-trust allegation made against the Pollock-Krasner Authentication Board, the Pollock-Krasner Foundation, Sothebys and ChristieIs (Kramer v Pollock-Krasner Foundation, Pollock-Krasner Authentication Board, Inc, SothebyIs, Inc and Christie, Manson & Woods International, Inc, 890 F. Supp. 250 [S.D.N.Y 1995]). Here, the claimant submitted that there was an anti-trust conspiracy designed to exclude authentic Pollock pieces from the market in an attempt to increase the value of Pollock paintings owned by the Foundation and auctioned by Sothebys and Christies. The court dismissed the claim because the claimant failed adequately to identify the relevant market where the anti-trust violation had allegedly taken place.

Furthermore, the court considered that the claimant had failed to prove that the auction houses had participated in a conspiracy, noting that they had good reasons for declining to offer paintings for sale that might well have proved to be forgeries. The anti-trust claim is ingenious, but it is probably too far-fetched to have any real chances of success. It must be said that aggrieved owners face a difficult task. Each head of claim places a heavy burden on the claimant to make good the contention that the prime expert got it wrong. If it is accepted that decisions on attribution and authenticity are expressions of opinion, then the English courts are unlikely to overturn the expertIs opinion, unless the claimant can show that it is irrational: but the claimant may be unable to do so unless the expert has disclosed the reasons for his decision and many experts do not. Other European legal systems consider experts statements on attribution and authenticity as binding: they are treated more as statements of fact than expressions of opinion and the courts are more willing to challenge the expert and call on their own experts to render judgment on the authenticity or attribution of a particular work. In 1995, Christies declined to include a painting by Kees Van Dongen in an auction because the Wildenstein Institute had indicated that it would not be included in its forthcoming catalogue raisonne.

The owner started proceedings against the Institute in the French courts, as he had bought the painting a few years earlier with a certificate of authenticity from Paul Petrid as, the acknowledged expert. The French court appointed two independent experts, who concluded that the painting was genuine. The court held that the Institute could not refuse to include the painting in its forthcoming catalogue raisonne right unless there were new material changes in connoisseurship: indeed, if the painting were not included in the catalogue raisonne right, the Institute would not be able to claim that its catalogue was an exhaustive compilation of the artists work (as it had done). The court added that the author of a catalogue raisonne right would be liable if he negligently or intentionally excluded a work from the catalogue, despite the contrary opinion of acknowledged experts (Dumshift rightnil v. Wildenstein Institute and Others, Tribunal de Grande Instance de Paris, 16 September 1999,unpublished).
Prev Next