Ian W C Spencer v S Franses Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thirlwall DBE |
| Judgment Date | 20 May 2011 |
| Neutral Citation | [2011] EWHC 1269 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X01424 |
| Date | 20 May 2011 |
[2011] EWHC 1269 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Thirlwall DBE
Case No: HQ09X01424
Mr McLinden QC (instructed by John F S Cabot) for the Claimant
Mr Legge (instructed by Keelys) for the Defendant
Hearing dates: 26 th October – 11 th November 2010
(excluding 8 th & 9 th November)
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.
INTRODUCTION
At the heart of this dispute are two beautiful embroideries. They are probably medieval. If so, they are worth hundreds of thousands, if not millions of pounds. Mr Simon Franses of the defendant company has described them as potentially a national treasure.
The embroideries are currently held by the defendant company in its safe. It is agreed that as between the parties the Claimant has title to them. He took them to the defendant company in June 2003. He wanted to sell them. Their age and history were unknown but the Claimant believed that they were very valuable. Before they could be sold a significant amount of research and other work needed to be done to establish precisely what they were. Work was carried out by Mr Franses over many months. There is a dispute about the basis upon which the work was done, and the amount of work that was done. A time came when the Claimant wanted them back. The Defendant refused to return them for reasons I shall come to later. It is the Claimant's case that the Defendant unlawfully retains the embroideries. He seeks their return, together with damages, including aggravated damages. The defendant company asserts that the Claimant is not entitled to their return until (as a minimum) he pays the sums owed in respect of research and other work done in respect of the embroideries. The Defendant also points to an injunction ordered by the Surrogate's Court of New York which, it submits, prevents disposal of the embroideries, even to the Claimant.
The Parties
Background
The Claimant has had a number of occupations and business interests. In the mid 1990s he was working in the antiques trade. In 2004 he was involved in a number of different companies, at least two of which (Ian Spencer Antiques Limited and Probate Solutions Limited) were involved with antiques. So far as I can tell he also dealt in antiques on his own, personal, account at that time.
The defendant company is a long established specialist in the field of antique and historical textiles and embroideries. It is a family business. Over a hundred years it has supplied many great collectors and museums. It established and owns the world's largest academic research archive on figurative embroideries and textiles. The archive is non profit making and provides free information to museums and institutions around the world. The Defendant has a prestigious client list and has acted as agents for a number of major museums, including the Victoria and Albert Museum in London, the Metropolitan Museum of Art in New York, the Art Institute of Chicago and the Rijksmuseum in Amsterdam. The business specialises in the appraisal and sale of museum quality works. Mr Simon Franses now runs the defendant company, having taken over from his father. It is plain from the evidence that he is held in high esteem in his professional world. He has specific expertise in medieval textiles. He has published widely and identified a number of major works.
In the course of the trial both Mr Spencer and Mr Franses gave evidence. Both were in the witness box for extended periods. I was thus able to assess with some confidence how they were likely to have conducted themselves over the years during which they dealt with each other. I make the following general observations at this stage:
The Claimant
The Claimant was in the witness box on more than one occasion. He struck me as highly plausible, determined to make a good impression and confident of his ability to do so. He was often straightforward and engaging. On occasions he was vague and evasive and sometimes did not tell the truth. I shall deal with the details of that later in my judgment. He was cooperative and polite when he approved of the questions and overbearing to the point of rudeness when he did not.
Mr Franses
Mr Franses was in the witness box for a very long time. He was very garrulous; his evidence was extremely discursive. He did not avoid questions, but took a very long time to answer them, plainly fearful that the listener may not have understood every nuance of the context and feeling it necessary to explain it ad nauseam. He was extraordinarily anxious that as much as possible should be understood about the embroideries, their history and his involvement with them. That said, I was quite satisfied that throughout he was endeavouring to give me a conscientious and honest account of his involvement with the Claimant and the embroideries.
In the run up to this litigation, and during it, a number of serious allegations about Mr Franses's bona fides were made. I make it clear at this early stage of the judgment that I reject them all.
The View
A dispute to which I shall refer later led to the parties going to the gallery to look at the embroideries to see whether or not there was a fold in them. They and their advisers could not agree about what could be seen. The embroideries were therefore brought to court so that I could see them [see paragraphs 44–46 below].
The difference in the attitude of the two men to the embroideries was striking and revealing. Mr Franses handled them with what I can only describe as reverence, wearing white gloves. By comparison the Claimant treated them carelessly, no doubt because he wanted (reasonably enough) to make his point that the embroideries could easily be folded and set about folding them. I noted Mr Franses physically started when he did so. It is quite plain that Mr Franses considers these embroideries of enormous cultural value, a part of our heritage. For Mr Spencer their value is in the money they will bring him. The difference in their approach, which was clear throughout the trial, may explain the extremely wide gulf there now is between the two men. Mr Spencer plainly cannot believe that Mr Franses is acting other than in bad faith with some (unclear) financial motive. He was extraordinarily hostile towards him. Mr Franses was not hostile, but was plainly perplexed. He cannot believe that Mr Spencer is in the position of custodian of a national treasure having found them among the detritus of a house clearance in the circumstances to which I shall turn at paragraphs 17 to 47 of this judgment.
The Issues
I am concerned with events over a 13 year period, 1996 to 2009. I shall set out my findings of fact chronologically. I shall not deal with every dispute of fact (of which there were a very great number). My focus is on those many facts relevant to the issues of law I have to decide. I shall set out the whole story chronologically and then determine the following issues of law:-
i) Was there a contract between the Claimant and the Defendant?
ii) If yes, was there an implied term of the contract that the Defendant was entitled to make inquiries into the Claimant's title?
iii) If there was no contract or if the answer to the question at (ii) is no, did the Defendant have a common law right as bailee to make inquiries into the Claimant's title?
iv) If there was no contract is the Defendant entitled to a Quantum Meruit?
v) If yes, what is the sum to which he is entitled?
vi) Was the Defendant entitled to assert a lien over the embroideries?
vii) Did the Claimant discharge the lien? If yes, when?
viii) Is the Defendant bound by the terms of the New York injunction?
ix) Is the Defendant wrongfully retaining the embroideries?
x) Is the Claimant entitled to damages, including aggravated damages?
xi) Quantum
THE EVIDENCE
In addition to the Claimant himself, I heard from Mrs Diahn McGrath, a New York Attorney, and from Mrs Linda Parry, an expert in 19 th century textiles, both of whom gave evidence on his behalf.
On behalf of the Defendant I heard from Mr Franses, Mr Oltmann-Reeve, a former employee of the Sutton Estate, Ms Lorraine Coyle, a New York attorney who had been appointed a law Guardian on behalf of Mr Charles Hill, the well known former Police Officer with a particular expertise in the recovery of stolen art.
I also read witness statements from Mrs Kerry Taylor, formerly of Sotheby's, and Ms Elizabeth Lane, of Christie's.
The history of this case may be divided into three:-
i) the circumstances in which the Claimant acquired the embroideries;
ii) the dealings between the Claimant and Defendant between 2003 and 2008;
iii) events from September 2008 onwards.
I shall deal with them in that order.
THE FACTS
How the Claimant acquired the embroideries
In coming to my findings under this heading I am reliant principally on the evidence of Mr Spencer, Mrs McGrath and Miss Coyle. I have taken into account what Mr Spencer told Mr Franses at various stages about how he acquired the embroideries, and with which I deal at length later in the judgment, but where what the Claimant said to Mr Franses differs from what he said in evidence about the acquisition I am satisfied that the latter was more reliable. I have no reservations about what was said by Miss Coyle in her witness statement and in evidence before me. She was a reliable witness. I have a number of reservations about the evidence of Mrs McGrath to which I shall turn in due course. I have relied on her account of events when...
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Dmitrii Vladimirovich Sheianov v Sarner International Ltd
...the lien exists…” (per Chief Baron Pollock in Steadman v Hockley (1846) 15 M & W 553 at 557, above). 79 In Spencer v S Franses Ltd [2011] EWHC 1269 (QB), old embroideries were given to an expert by the owner, who had been told they were nineteenth century work of limited value. The expert ......