Baroda (Maharanee of) v Wildenstein

THE MASTER OF ROLLS: The Maharanse of Baroda lives in France: but she has lived in England for long periods, and has had many flats and large houses in this country. She is intimately connected with English scoial life. She frequently visits England for considerable periods, and has horses in training here. She has a stud farm in Ireland.

Mr. Daniel Wildenstein lives in Paris. He is an art dealer of international repute. In September 1970, the "Paris Match" published an article about him. It describes him as the greatest art dealer in the world. The business was founded by his grand-father in Paris and New York. It was extended by his father to London, who had a gallery in New Bond Street and a small flat above it. Daniel Wildenstein himself succeeded to it. He was at all material times a director of Daniel Wildenstein Limited, the important art dealers of 147 New Bond Street in London. Daniel Wildenstein is also connected with the important New York house of Wildenstein Inc. He has another great interest, race horses. He has a stud farm in Ireland, and he comes over to England from time to time for the races here.

Both the Maharanee and M. Wildenstein speak perfect English. In 1965, the Maharanee's son, the Prince of Baroda, was invited to go to the house of M. Daniel Wildenstein at 57 Rue de La Bestie, Paris. He was told there were some beautiful old masters which the Maharanee might like to purchase. At the house he was shown a painting called "La Poesie". It was said to be by a great French artist, Francois Boucher. After some negotiation, the picture was purchased by the Maharance at a sum which in English money was put at £32,920. It was delivered to the Maharance there in Paris - a purchase by her from her M. Daniel Wildenstein.

In July, 1966, M. Daniel Wildenstein gave a certificate of authenticity and value. It was on the notepaper of the English companyWildenstein & CO. Ltd., 147 New Bond Street, London, W.l. The directors were named as M. Daniel Wildsnstein (Freach) and Mr. Hunter, ECA. The certificate says (translated into English):-

"I, the undersigned, Daniel Wildenstein, director of Wildenstein & Co. Ltd., certify that the painting by Francois Boucher, 'L' Etude ou la Poesie, 0.95 × 1.25 m.', belonging to Her Highness the Maharanee of Baroda, has this day a value of 450,000. French Fyanos. 20th July, 1966. Daniel Wildenstein".

The Maharanee brought the picture to England. On 6th December, 1967, it was put up for sale by Sothebys in a catalogue of important old master paintings. At the beginning of the catalogue Sothebys set out a glossary saying that, if the forename and surname of the artist is given, it means that, in the opinion of Sothebys it is a work by the artist. There is a photograph of the picture. It sayes "La Poesie" by Francois Boucher. It describes it as: "the property of Her Royal Highness The Maharanee of Baroda - 'La Poesie', a girl in pale blue and white drapery reclining, holding a book and a lyre'.

That catalogue is a representation by Sothebys that, in their opinion, it was a work by Francois Boucher.

The painting was not sold by Sothebys at that sale. I presume it did not reach the reserve price. Perhaps some people had Doubts about its authenticity. A little later, the picture was shown to Mr. Francis Watsons who is the Surveyor of Her Majesty's Works of Art, but not of her pictures. He only saw it for a few minutes, but he is said to have expressed tho view that it was not a Boucher. In July 1968, it was put in the hands of Christie's, who are art dealers equal in repute to Sothebys. On 18th October, 1968, Christie's wrote to tho Maharanee's solicitors:

"In confirmation of our telephone conversations I am writing to say that, in car opinion, the painting of a female allegorical figure representing poetry, which was sent to us on July 26th cannot be regarded as an autographwork by Francois Boucher, but would appear to be a work from his immediate circle of followers. We think that it might make about £750 at auction and in the event of the owner deciding to sell, we would not recommend a reserve of more than about £500/£600.

On 3rd September, 1969, the solicitors for the Maharanse issued a writ against M. Daniel Wildenstein. The statement of claim set out the circumstances in which, she bought the picture; saying that it was represented to be by Bouchers but alleging that it was not by Boucher. She claimed rescission and repayment to her of the money which she had paid.

In the writ, the Maharanee gave her address as Claridges in Brook Street - the hotel whore she was staying at the time M. Daniel Wildenstein's address was given as 147 New Bond Street, because he was at that time a director of the English company.

The writ was not served on M. Wildenstein at that time, because he was not in London. Those advising the Maharanee waited till he came over here. In June 1970, M. Daniel Wildenstein came over for the Ascot races. On Saturday, 20th June 1970, the writ was served upon him at the race course at Ascot. His solicitors entered an appearance. That now seek to set the writ aside. The Master and the Judge have set it aside. The Maharanee appeals to this Court.

In this case the writ has been properly served on the defendant in this country. This makes the case very different from those in which the defendant is in a foreign country and the plaintiff has to seek leave to serve him out of the jurisdiction. It is also different from these cases in which the plaintiff has already started an action ill another country and the question is whether he should be allowed to start another action in this country on the same subject-matter. In this case the plaintiff has validly invoked the jurisdiction of our Courts in this, the one end only action she has brought.

The principle applicable to such a case was stated by Lord Justice Scott in the case of St. Pierre v. South American Stores (1936) 1 K.B. 382 at page 398;

"The true rule about a stay under section 41 (of the Supreme Court of Judicature Act, 1925) so far as relevant to this case, may I think, he stated thus:

(i) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in on English Court if it ia otherwise properly brought. The right of access to the King's Court must not be lightly refused.

(ii) In order to justify stay, two conditions must be satisfied, one positive and the other negative:

(a) the defendant must satisfy the Court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the Court in some other way; and

(b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on tho defendant".

That passage was cited and applied by Lord MacDermott in the Court of Appeal of Northen Ireland in 1963 in the case of Devine v. Cementation Co. Ltd. (1963) Northem Ireland Law Reports 65).

We have to apply that principle to this case when the plaintiff was only able to serve the defendant because he happened to be in this country on a short visit. There are only two cases in the books of this nature, Egbert v. Short (1907) 2 Ch. 205; and Re Norton's Settlement (1908) 1 Ch. 471. In each case the defendant was resident in India, but had returned to England on a short visit. Each case concerned an entirely Indian matter. In each case the action use not brought bona fide for the purpose of obtaining justice, but for the purpose of harassing and annoying the defendant. It would have been a great injustice to the defendant to compel him to fight it in England. So each action was stayed.

A similar case was put by Sir Gorell Barnes, President in Logan v. Bank of Scotland (1905) 1 K.B. 141 at page 1525:

"If, for instance, as was put in argument, a dispute of a complicated character had arisen between two foreigners in a foreign country, and one of them were made defendant in as action in this country by serving him with a writ while he happened to be here for a few days' visit, I apprehend that, although there would be jurisdiction in the Court to entertain the suit, it would have little hesitation in treating the action as vexatious and staying it".

The Judge seems to have taken that instance given by Sir Gorell Barnes and four fourded on it a presumption which he stated in these words: "But a presumpsion arises that the proceedings are oppressive if the defendant is served when he appears to be here on a visit". I cannot agree with that statement. There is no such presumptions if a defendant is properly served with a writ whilst he is in this country, albeit on a short visit, the plaintiff is prima facie entitled to continue the proceedings to the end. He has validly invoked the jurisdiction of the Queen's Courts; and he is entitled to require those Courts to proceed to adjudicate upon his claim. The Courts should not strike it out unless it comes within one of the acknowledged grounds, such as that it is vaxatious or oppressive, or otherwise an abuse of the process of the Court, see Order 18, Rule 19. It does not become within those grounds simply because the...