Astrid-Caroline Cole v Sean Avram Carpenter
| Jurisdiction | England & Wales |
| Judge | Mr Justice Trower |
| Judgment Date | 23 November 2020 |
| Neutral Citation | [2020] EWHC 3155 (Ch) |
| Date | 23 November 2020 |
| Docket Number | Case No: BL-2019-001909 |
| Court | Chancery Division |
[2020] EWHC 3155 (Ch)
Mr Justice Trower
Case No: BL-2019-001909
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY DIVISION (BUSINESS LIST)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Andrew Lomas (instructed by Direct Access) for the Claimant
Yash Bheeroo (instructed by Trowers & Hamlins LLP) for the Defendants
Hearing dates: 12 November 2020
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application by the Defendants under CPR 81.3(5) for permission to make a contempt application against the Claimant. The allegation is that the Claimant deliberately falsified or caused to be falsified evidence in the form of a document that she then exhibited to her Reply. It is also said that she deliberately made a false statement in her Reply verified by a statement of truth without an honest belief that it was true.
The proceedings in which the application is made were commenced by the Claimant on 14 October 2019. She alleges that there was an oral contract between her and the Defendants pursuant to which she would be granted an exclusive right of sale for a period of 12 months of a work by Pablo Picasso, known as “Le Sauvetage” or “the Rescue” (the “Work”), if she was able to procure that the Work was exhibited at the 2018 “Picasso 1932 — Love, Fame, Tragedy” exhibition at the Tate Modern gallery. She alleges that the Defendants agreed to pay her a sales commission equal to 10% of the sale price of the Work.
At present the Claimant does not seek damages for breach of contract. Instead she seeks a declaration that the terms of the contract (a) gave her an exclusive right to sell the Work for a period of 12 months, (b) imposed on the Defendants a good faith obligation to consider all offers presented by the Claimant in respect of the Work and (c) entitled her to a sales commission equal to 10% of the sale price of the Work should it be sold. She also seeks an order that the Defendants perform the contract on the terms so declared and an injunction to restrain them from agreeing to sell or attempting to agree to sell the Work for a period of 12 months.
The Defendants deny that they are the proper parties to the proceedings because at all material times they acted in their dealings with the Claimant as officers or agents of Carpenter Fine Violins and Collectibles LLC (the “Company”), which owned the Work. They also contend that no agreement was entered into with the Claimant in relation to the Work, whether by the Defendants in their personal capacity or by the Company.
The Defendants accept that they had discussions with the Claimant in relation to the Work, but it is their case that those discussions never gave rise to a binding contract and were limited to an understanding that, after the conclusion of the Tate exhibition, the parties would explore whether the Work might be sold with assistance from the Claimant on terms similar to their previous dealings. These were to the effect that she would have a non-exclusive right to show the Work to potential buyers in return for an unspecified commission in the event that she successfully brokered a sale.
The Defendants also say that the Claimant was not in the event responsible for getting the work into the Tate exhibition and, to the extent that the discussions which they had with the Claimant gave rise to a contract (whether on the terms alleged or at all), that contract has been lawfully terminated.
The Picasso exhibition opened at the Tate Modern in March 2018. There was an opening dinner on 6 March 2018. It is not in issue between the parties that, by that stage, the relationship between the Claimant and the Defendants had broken down, although the circumstances in which this had occurred are hotly contested.
It is part of the Claimant's case that, notwithstanding the breakdown in the relationship, she spoke to the First Defendant before and after the opening dinner and made a verbal offer to purchase the Work for US$10 million. The Defendants deny that any such verbal offer was made. The Claimant then says that she reiterated the offer in an email sent on 7 March 2018 in the following form “ As I quickly mentioned yesterday, my boyfriend Angus Ball made an IPO last December with one of his companies called Sabre. We would be utterly grateful and delighted, if you would consider our proposal for your “Le Sauvetage” painting. We would be most happy to wire you an escrow asap of $1 million as a deposit.” The First Defendant responded that the Defendants were “not at all interested in selling our Picasso”.
The Claimant contends that, although the Defendants' ostensible position was that by this stage the Work was no longer for sale, this was not in fact true. In support of this part of her case, she pleads that an art collector (Angela Gulbenkian) was in some form of discussions with an art dealer (Murphy and Partners) about acquiring the Work from the Defendants.
It is said by the Claimant that, in the course of those discussions, Ms Gulbenkian was told that the Defendants had already turned down an offer in excess of US$10 million for the Work. She also says that the Defendants explicitly confirmed Murphy and Partners' right to offer the Work and that no one else had ever been granted permission to do so. The Claimant contends that this confirmation was intended to refer to her, and that the Defendants' explicit representation to Murphy and Partners that she had been denied any opportunity to engage in any sale of the Work was manifestly untrue.
It is common ground that the Work was not in the event sold to Ms Gulbenkian. However, the Claimant relies on what occurs as demonstrating that the Defendants acted in breach of contract by seeking to sell the Work through another agent.
The circumstances surrounding the offer that was made by the Claimant on 7 March 2018 is therefore an issue in the proceedings. The Defendants' case is that they did not accept the Claimant's written offer for a number of reasons including the fact that they doubted it was genuine, that they had no desire to continue their dealings with the Claimant following their falling out and that it was too low to be acceptable. They say that, although they were not actively marketing the Work at that stage, the stated net figure the Company was seeking was US$12 million.
The Claimant's case is that the offer she made orally on 6 March 2018, which was then reiterated in her 7 March 2018 email, was genuine. However, apart from her reference to Mr Ball, she did not give any further particulars of the person on whose behalf it was made until service of her Reply dated 7 May 2020. As the Claimant continued to represent until service of her Reply that the offer had been made on behalf of Mr Ball, it is not surprising that the Defendants continued to proceed on the basis that this was her case.
The case which the Claimant then advanced in her Reply contained a significant difference. In paragraph 48 she pleaded as follows: “ As is set out in confidential Annex 1, the offer for the work was from a genuine multi-billionaire unconnected with Ms Gulbenkian.” Annex 1 contained a copy of what purports to be a screenshot of an email exchange between the Claimant (ACC Art info@acc-art.com) and Mr Paul Allen (Paul Allen < Paul@vulcan.com.>) which appears to have taken place a few days before the opening dinner for the Tate exhibition.
The screenshot starts with a message dated 3 March 2018 from the Claimant to Mr Allen “ Dear Paul, Would you be interested in a 1932 Picasso (see documents and image attached) that will be exhibited in the upcoming TATE show “Picasso 1932 — Love, Fame, Tragedy”? Warmly Caroline”. The answer apparently from Mr Allen, dated 4 March 2018, was very short. “ Yes. Offer $10m”.
It is the Claimant's case that the Paul Allen with whom she was in email correspondence was the co-founder of Microsoft. He fits the description of being a “multi-billionaire” and the email address from which he is said to have sent his answer to the Claimant was his address at Vulcan Inc. (“Vulcan”), a company founded by Mr Allen and his sister to assist in their philanthropic activities. The Claimant had had some limited prior contact with Mr Allen through this email address. Mr Allen died in October 2018, i.e. between the time of the Tate exhibition and the time at which his name was first mentioned by the Claimant in connection with these proceedings.
Although it is not apparent from the version of the screenshot exhibited to the Reply, it seems that the version of this email exchange which has survived is one that was forwarded by the Claimant to an unidentified third-party. This is apparent from another screenshot version of the same email exchange that an expert instructed by the Claimant (Mr Joseph Naghdi) has exhibited to his report dated 20 August 2020. This is a point to which I shall return a little later in this judgment.
The Reply was verified by a statement of truth signed by the Claimant. In pleading her case in this way, and in exhibiting the email exchange with Mr Allen, the Claimant was joining issue with the Defendants' case as to the genuineness of the offer she had made on 7 March 2018. She was also distancing herself from Ms Gulbenkian.
It is tolerably clear that these are both...
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