Kamidian v Holt and Others
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE TOMLINSON,Mr Justice Tomlinson |
| Judgment Date | 27 June 2008 |
| Neutral Citation | [2008] EWHC 1483 (Comm) |
| Docket Number | Case No: 2006 Folio 654 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 27 June 2008 |
[2008] EWHC 1483 (Comm)
IN THE HIGH COURT OF JUSTICE
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Tomlinson
Case No: 2006 Folio 654
Alison Padfield (instructed by Messrs ELS) for the Claimant
Andrew Neish (instructed by Messrs Ince & Co) for the First Defendant
John Kimbell (instructed by Messrs Pritchard Englefield) for the Second Defendant
The Third Defendant was not served with proceedings
Raymond Davern (instructed by Messrs De Cruz) for the Fourth Defendant
The Fifth Defendant does not appear and is not represented
Hearing dates: 21,22,23,24,28,29,30,31 January; 4,5,6,11,12 February 2008
Judgment Approved by the court for handing down (subject to editorial corrections)
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Mr Justice Tomlinson :
Introduction
1. The creations of Carl Fabergé are well known and highly prized. Foremost amongst such creations are “Fabergé Eggs”. Carl Fabergé was born in 1846 in St Petersburg of Huguenot descent. He succeeded his father as a jeweller and manufacturer of objets d'art. Regarded by many as a designer of unsurpassed ingenuity and delicacy, he became a prolific supplier to the royal houses of Europe. Central to his fame is the creation of the so-called Imperial Easter Eggs, the first of which was created in his workshops in 1884 or 1885 for Tsar Alexander III who presented it to the Tsarina, Maria Feodorovna. Thus began a tradition of Imperial Easter gifts by the Tsar to his wife, a tradition continued after the death of Tsar Alexander by his son Tsar Nicholas II. Tsar Nicholas not only bestowed an annual Easter gift upon his Tsarina, Alexandra Feodorovna, but also dutifully presented his mother, the Dowager Empress, with an annual Easter Egg created by Fabergé. An Easter Egg given by the Tsar either to his wife or to his mother is uncontroversially described as an Imperial Easter Egg. Opinions vary as to how many such eggs were created in the Fabergé workshops, but there were probably not more than fifty, not all of which survive. It is generally accepted that there is another category of Easter eggs created by Fabergé which should be regarded as of similar quality although lacking the cachet of having been created to be an Easter gift by the Tsar to his wife or mother. Into that category falls the collection of seven “Kelch” (or Kelkh) eggs made for the family of that name, successful merchants in Russia. Another such egg is the so-called Duchess of Marlborough Egg, acquired by the Duchess (née Consuelo Vanderbilt) during her visit to St Petersburg in 1902. As recently as 28 November 2007 there was auctioned at Christie's in London the “Rothschild Egg” which would by common consent be placed into the same category of non-Imperial Eggs of Imperial quality. The Rothschild Egg is generally regarded as being of impeccable provenance, including not just relevant markings but also a surviving photograph of it apparently under construction in the workshop of the celebrated Fabergé workmaster Mikhail Perchin.
2. This case concerns another object which it is alleged by the Claimant should be placed into the same category of Imperial quality, the so-called Dr Metzger Egg Clock. The context is however prosaic and more familiar to this court than is the world of fine art. A claim is made against insurers and those alleged to have been bailees of the egg clock in respect of damage caused whilst the egg clock was in transit between Europe and the USA for the purpose of being shown at an exhibition in Wilmington, Delaware. That exhibition opened as long ago as September 2000, closing in February 2001. By the end of March 2001 the damaged egg clock was back in London in the custody of its alleged owner, the Claimant in this action. One of the many curiosities of this extraordinary case is that this artefact, which is on any view of a contemporary value of £100,000 or so even if not of the pedigree claimed, has remained unrepaired in a safe deposit ever since.
3. The Claimant, Michel Kamidian, is an art collector and dealer. He was born in Armenia in the former USSR, acquiring the French nationality of his father. He was educated in the USSR before studying Russian philosophy at the Sorbonne. He now lives in or near Paris from where he conducts his dealing activities. He has a life-long interest in items manufactured in the workshops of Carl Fabergé.
4. In November 1991 Mr Kamidian was involved in the purchase at auction at Sotheby's, Geneva, of a nephrite and silver gilt mantle clock, to which I shall refer hereafter as the “Dr Metzger Egg Clock”. It was Lot No. 39The description in the Sotheby's Sale Catalogue was:
“394
A TIMEPIECE
retailed by Fabergé, unmarked, probably St Petersburg, the movement signed: ‘Hy. Moser & Co., St Petersburg’, late 19 th century
the urn-shaped nephrite body with two-coloured gilt-metal mounts, the opaque white enamel dial band with blue enamel Roman numerals, the hours indicated by the head of a snake, resting on a tapering base within snake-entwined branches terminating in elaborate scrolls, surmounted by a bouquet of lilies, the rim of the vase as a cluster of roses, the rectangular nephrite stand applied with gilt classical scrolls, on stepped plinth
height 29cm.
in original fitted wood case, the silk interior stamped with the Imperial warrant and inscribed: ‘K. Fabergé. St Petersburg, Moscow’, the paper lining in the wood case underneath the later frame with blind stamp: ‘K. Fabergé, St Petersburg, Moscow’, below the Imperial warrant.
Provenance
Presented by the Dowager Empress Maria Feodorovna to Dr Johann Georg Metzger.
Dr Metzger (1838–1909), a Dutch doctor specialising in therapeutic gymnastics and famed for his use of massage treatment, was summoned by Emperor Alexander III to St. Petersburg and arrived there on April 2 nd, 1886 to treat the Imperial Consort. On 26 th May of the same year Dr Metzger was awarded the Order of St. Stanislaus for his services.
Early in 1892 he was again called to St. Petersburg to treat the back injury of Grand Duchess Olga Alexandrovna who had been hurt in the ‘Borki railway disaster’: on 29 October 1888 the Imperial train had been travelling to Kharkov in the Caucasus when two explosions severely damaged the carriages. Emperor Alexander II (sic) escaped first from the crushed dining car and held up the heavy iron roof which had collapsed to release the children and the Empress.
During his second visit Dr Metzger was presented with this clock and he later received the Order of St. Stanislaus First Class with diamonds, in addition to an honorarium of 1400 marks.
Dr Metzger's other patients included the Empress of Austria, Empress Eugenie of France, the Duke of Nassau and the Duchess of Saxe-Coburg-Gotha.
For a detailed description of his life and work, see Exhibition Catalogue, Dr Johann Georg Metzger 1838–1909 en zign tijd, Leiden, 1978, and Grote Winkler Prins Encyclopedie, Amsterdam, 1971, deel 13.
Photocopies of documents relevant to Dr Metzger are available with this lot.
This clock is close in design and size to the Imperial Egg presented to the Empress Alexandra Feodorovna in 1899 and called the ‘Madonna Lily Egg’. Made by the Fabergé workmaster M. Perchin it is now at the Armoury Museum of the Kremlin in Moscow, see G. Hill, Fabergé and the Russian Master Goldsmiths, New York, 1989, plate 33. SF25,000–35,000”
As appears above, the price estimated by Sotheby's and noted in the catalogue was SF25,000–35,000. It is common ground that that is not a price consistent with what would have been commanded by a piece generally recognised to be by Fabergé. The Sotheby's description bestows that accolade only upon the wooden case, not upon the timepiece itself, although one is left to wonder whether Sotheby's intended their description of the case to be read as referring to “the” original fitted wood case or rather to “an” original fitted wood case, an uncertainty which I do not find entirely resolved by the use of the word “fitted” although Ms Alison Padfield, counsel for Mr Kamidian, suggested that it should be regarded as conclusive in favour of the former rather than the latter meaning. The piece was knocked down for SF148,500, obviously a price considerably in excess of Sotheby's estimate. SF148,500 was then equivalent to about US$105,000. Mr Kamidian says that it was obvious to him from the moment he saw the clock that it was a genuine Fabergé piece and that Sotheby's had made a mistake in failing to attribute it appropriately. The trial proceeded upon the assumption that Mr Kamidian was the successful bidder in the room, and on re-reading Mr Kamidian's evidence I think that this is what he intended to convey by his evidence that “I was in the – in this sale, I bought this piece. So everybody saw that I bought this piece”. Mr Kamidian says that at the time he acquired only a half share in the Dr Metzger Egg Clock, since he made the purchase as to 50% on behalf of another, who in turn possibly represented yet others. Mr Kamidian says that he acquired full ownership in 1998 by buying out the then owner of the second half share for US$145,000. Again, US$145,000 falls very far short of what would in 1998 have been 50% of the value of an egg clock generally recognised as having been created in the Fabergé workshops.
5. The Fifth Defendant, Broughton International Inc., to which I shall refer hereafter as “Broughton”, is or certainly was in 2000/01 a company incorporated in Florida. It has...
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