Avrora Fine Arts Investment Ltd v Christie, Manson & Woods Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 27 July 2012 |
| Neutral Citation | [2012] EWHC 2198 (Ch) |
| Docket Number | Case No: HC10C01961 |
| Court | Chancery Division |
| Date | 27 July 2012 |
[2012] EWHC 2198 (Ch)
Mr Justice Newey
Case No: HC10C01961
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Rolls Building, Royal Courts of Justice,
7 Rolls Buildings, Fetter Lane, London EC4A 1NL
Mr Henry Legge QC and Mr Jordan Holland (instructed by Kerman & Co LLP) for the Claimant
Mr James Aldridge and Mr Anton Dudnikov (instructed by Stephenson Harwood LLP) for the Defendant
Hearing dates: 25–27 and 30 April and 2–4, 8–11, 14–17, 24 and 25 May 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 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 case concerns a painting called "Odalisque" which the claimant, Avrora Fine Arts Investment Limited ("Avrora"), bought at auction in 2005. The painting was said to be by the Russian artist Boris Mikhailovich Kustodiev, and the defendant, Christie, Manson & Woods Limited ("Christie's"), which conducted the auction, had sufficient confidence in the attribution to warrant its correctness. Avrora now believes, however, that "Odalisque" was not in fact Kustodiev's work. It therefore seeks to cancel its purchase of the painting pursuant to the warranty it was given. It also makes claims against Christie's for negligence and under the Misrepresentation Act 1967.
Basic facts
"Odalisque" shows a nude woman asleep on a bed behind partially-open curtains. On the right-hand side of the painting, there is a stove with a niche containing a vase. In front of the bed, there is a Turkmen carpet on which a pair of green shoes stands. Also in the foreground is a chair on which clothes, including a fur coat, have been piled. A mirror hangs on the wall behind the woman. In the bottom left-hand corner, there is a small inscription reading "B. Kustodiev – 1919".
Kustodiev, whose name appears in the inscription, was born in Astrakhan in 1878. Within a year of his birth, his father had died, as a result of which Kustodiev's mother took him and his three siblings to live in part of the house of a local merchant. In his late teens, Kustodiev arrived in St Petersburg and entered the Academy of Arts there. The city remained his home until his death in 1927 aged 49.
Kustodiev began to suffer from spinal tuberculosis in 1909, when he was 31. By 1916 the illness had caused him to be paralysed from the waist down, and he was forced to use a wheelchair for the rest of his life. This, however, did not prevent him from continuing to paint well. In fact, Mrs Alisa Lyubimova, who gave expert evidence, considers that Kustodiev was at his most creative in the period 1915–1921.
Kustodiev was recognised as a hugely important artist in his own lifetime. He belonged to (or at least was connected with) the Russian "World of Art" ("Mir Iskusstva") movement. He produced work in a wide variety of genres, including portraits, works with an element of folk art and works echoing the Venetian Old Masters.
Kustodiev is much better known within Russia than outside it. Mr Max Rutherston, another of the experts who gave evidence, drew an analogy between Kustodiev and L.S. Lowry. He suggested that Kustodiev "is to the Russians what Laurence Stephen Lowry is to the English in terms of affection in which he is held".
There was only one solo Kustodiev exhibition during the artist's lifetime: in Petrograd (formerly St Petersburg) in 1920. Two exhibitions of Kustodiev's work were held in Russia in the years immediately after his death: in Leningrad (as Petrograd had become) in 1928 and in Moscow in 1929. The Moscow exhibition was limited in scope and included only one Kustodiev work from 1919. The Leningrad exhibition, in contrast, was substantial: as many as 1,030 works were gathered at the State Russian Museum.
Two friends of Kustodiev, Fedor Notgaft and Vsevolod Voinov, were instrumental in documenting the artist's personal and professional history while he was alive. Notgaft's career included posts at the Commission for the Protection of Artistic Heritage and the Committee for the Popularisation of Art Books; he also played a leading role in overhauling St Petersburg's Hermitage Museum following the Russian Revolution in 1917. He had, however, met Kustodiev well before the Revolution, in 1905, and by 1906 he had taken responsibility for maintaining a record of his friend's works, with the active participation of both Kustodiev himself and Kustodiev's wife Yulia. Notgaft later recalled:
"[W]ith the help of [Yulia Kustodieva's] notes and exhibition catalogues I was able to compile a quite complete list of all … the principal paintings. Gradually the list expanded as here and there we were able to obtain information about the whereabouts of a painting which had been sold or presented as a gift to someone. All new paintings were recorded without delay. I maintained the list until 1922, when V.V. Voinov, by order of the Committee for the Popularisation of Arts Books, began writing a monograph about [Kustodiev], and from then on the recording of [Kustodiev's] works passed to him".
Having worked both before and after the Revolution at the Hermitage Museum, Voinov moved to the State Russian Museum, also in what was by then Petrograd, in 1922. He was an artist in his own right, but he wrote extensively about the history of Russian art and contemporary artists. Voinov's monograph on Kustodiev was published in December 1925. By then, he had been visiting Kustodiev at his home for some five years, often on a daily basis, and committing to his journals accounts of a vast number of conversations with Kustodiev. He further maintained a list of Kustodiev's works as Notgaft had previously done.
"Odalisque" was exhibited in Riga, the capital of Latvia, in 1932. Latvia had formed part of the Russian Empire until 1920, but it then gained its independence. In the 1940s, however, Latvia was successively occupied by Russian and German forces, and it was subsequently incorporated into the Soviet Union.
The event at which "Odalisque" was exhibited, entitled "Exhibition of Russian Painting of the Last Two Centuries", was curated by a group called "Acropolis" and took place at the Riga City Museum between 4 and 18 December 1932. The catalogue for the exhibition shows that it comprised some 243 works, including four items attributed to Kustodiev. One of these, an oil painting bearing the name "Beauty", was provided by a Leo Maskovsky, who also contributed 42 of the other works on display.
The exhibition was covered at the time in the Riga press. A Russian-language newspaper called "Today" published an article on the exhibition on 10 December 1932, and the edition of 18 December included a reference to a "wonderful exhibition of Russian paintings at the Riga museum". An evening sister paper, "This Evening", had contained a review of the exhibition on 7 December. A Latvian-language newspaper, "Pedeja Bridi", featured the exhibition in its 11 December edition, and it also featured in another Latvian-language publication. The German-language "Rigasche Rundschau" covered the exhibition on 12 December. The articles in "Today" and "Pedeja Bridi" were both illustrated with images of a painting called "Beauty", and it is reasonably clear that the painting in question is "Odalisque". Kustodiev was also referred to in the text of the article in "Today", in this passage:
"Then follows everybody else from the 'World of Art' ('Mir Iskusstva') – Kustodiev, Lancere, Dobuzhinsky, costumes by Bakst, Serovsky and his portrait of Korzinkina, two pictures by Sudeikin and four by Somov (out of which Nega (Bliss) and Marquise's Dream are particularly impressive".
"Rigasche Rundschau" wrote:
"'Mir Isskustwa' represents the heirloom of the Peredwischniki, one of its pillars has always been [Kustodiev] – amongst his paintings the 'Krassawiza' [i.e. "Beauty'] has to be stressed …".
The review in "This Evening" included this:
"The people from Acropolis owe this passionate collector [i.e. Maskovsky] a very great deal. 50 canvasses from the best Russian artists, forming his entire collection, adorn their exhibition. […] And they [the 'Acropolis' people] themselves admit that the main 'giants' upon the backs of which the exhibition rests are the collections of L. Maskovsky, L. Schultz, V. Vasilyev, and D. Kopylovich".
Maskovsky was also referred to in the following passage:
"Maskovsky, who is originally from Riga, collected Russian paintings for many years. He was buying everywhere – in Moscow, Riga, Paris.
Sometimes he managed to find pictures by Russian artists in a most peculiar way. The exhibition features six Levitans from Maskovsky's collection. One of these Levitans Maskovsky found by pure chance. When being a guest at some house, he saw a picture pinned to the door. The painting was covered with dirt because of flies and was in the poorest condition. Having looked closer at the work, Maskovsky realised that he sees a genuine work by Levitan.
In Moscow, Maskovsky bought pictures at auctions and under the Bolshevik regime he acquired several important works. In fact, Maskovsky was bidding on the big painting by Svedomsky The Slave Dance in the style of Semirandsky (also in the exhibition) at one of the auctions in Soviet Moscow. The picture, however, went to another bidder. Maskovsky then left to Riga where he finally acquired the work from his more successful opponent (another bidder) who had already managed to transfer the painting to Latvia".
Maskovsky featured in the Riga telephone directory for 1932, and also those for subsequent years up to 1939.
Various books on Kustodiev have been published since his death. It is common ground that the most important of these is a catalogue raisonné...
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