Luxmoore-May v Messenger May Baverstock
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE MANN,SIR DAVID CROOM-JOHNSON |
| Judgment Date | 21 December 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1221-5 |
| Docket Number | 89/1253 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1989 |
[1989] EWCA Civ J1221-5
Lord Justice Slade
Lord Justice Mann
and
Sir David Croom-Johnson
89/1253
1986 M No.3823
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE SIMON BROWN)
Royal Courts of Justice
MR. RUPERT JACKSON Q.C. and MR. JOHN POWELL (instructed by Messrs. Reynolds Porter Chamberlain, Solicitors, London, WC1V 7HA) appeared on behalf of the Defendants (Appellants).
MR. PETER CURRY Q.C. and MR. JOHN BOWERS (instructed by Messrs. Tuck & Mann, Solicitors, Dorking, Surrey, RH4 IBP) appeared on behalf of the Plaintiffs (Respondents).
This is an appeal by the defendants in an action, Messrs Messenger May Baverstock, from a judgment of Simon Brown J. given on 22nd November 1988. The defendants are a firm which carries on business as fine art auctioneers and valuers, together with business as surveyors and estate agents. They have an auction saleroom in Godalming, Surrey. It is common ground that they hold themselves out as experts in the valuation of paintings.
As an art dealer and consultant who gave evidence in the court below, Mr. Paul Thomas, explained, an article in the antique world which is unrecognised by the auctioneers is commonly referred to as a "sleeper". In that world, while the possibility of spotting a "sleeper" must be a perennial source of hope for dealers, the possibility of failing to detect one must be a perennial source of anxiety for valuers. In essence the complaint made against the defendants in the present case is that they negligently failed to recognise and advise the plaintiffs, Mr. and Mrs Luxmoore-May, as to the potential value of two "sleepers". These are two pictures now said by the plaintiffs to be the work of the celebrated painter of animals, George Stubbs A.R.A. (1724–1806). The judge held that their complaints were well-founded in law. The appeal raises questions of some general interest as to the nature and extent of the duty of auctioneers and valuers when asked to give advice as to the value of a picture which could be a "sleeper".
The facts are now largely common ground. I can gratefully take them for the most part (in many instances verbatim, without further acknowledgement) from the judge's clear and careful judgment, though in a few instances they will require supplementation.
In 1948 two small paintings measuring some 5 1/2 inches × 8 1/2 inches were given to the first plaintiff, Mrs Luxmoore-May, at the time of her first marriage, by an old family friend, who had a good eye for pictures and had found them in the Lanes at Brighton. Each of them depicted a single foxhound on a rocky seashore and was painted in oil on small squares of paper which had been laid down on paper-covered wooden panels. I will refer to them as "the foxhound pictures".
In September 1985 they hung unadmired in a dark corner of the hallway of the plaintiffs' house. During that year they redecorated their house and decided to sell some pictures. In particular, at the beginning of September, the second plaintiff, Mr. Luxmoore-May, contemplated selling three of his pictures. For this purpose he not unnaturally turned to the defendant firm, from which he himself had retired in 1979 as senior partner. Although he had been on the chartered surveyor and land agent side of the profession, he knew well those involved in the firm's fine arts department. Among these were Mr. Nicholson, the saleroom manager, and Mrs Zarek, a saleroom assistant in the picture department.
On 5th September 1985, Mrs Zarek came to the plaintiff's house to see the pictures, which the second plaintiff was particularly interested in selling. After these had been looked at, and very much as an afterthought, the first plaintiff decided to show Mrs Zarek the foxhound pictures, which she had never particularly liked and thought of no great value.
The foxhound pictures at that time were dirty. Mr. Nicholson described them as being "in poor condition" and "dark": (Day 3, p. 8 A-B). Mrs Zarek gave evidence to the like effect: (Day 3, p. 41 C-D). Mr Thomas said that they were "dirty" and said that by this he meant "………you have generations of household fumes—had caused an incredible layer of filth to be on the pictures. It could be cigarette smoke. It could be oil lamp smoke. It could be smoke from a fire. In this case there was extensive overpainting on the paintings as well": (Day 3, p. 5 5 F). Mr. Hancock, who will be referred to later in this judgment and saw the pictures in October 1985, said that he remembered one of them "definitely curling", and "you could see part of colours here and there but they were very dirty and they didn't have the sort of vivid blue at the top. They didn't have all the white showing through": (Day 3, p. 79 C). The first plaintiff herself said that "they definitely did need cleaning and they were rather dark pictures: (Day 3, p. 75 F).
Mrs Zarek, on seeing the foxhound pictures, hazarded a guess that they were only worth perhaps £30. The first plaintiff did find this small sum rather surprising. She contemplated throwing away the paintings and merely keeping the frames. In the event, however, Mrs Zarek took away with her by car the foxhound pictures and three other pictures, giving the first plaintiff a written receipt dated 5/9/85, headed with the words "For Research" and describing the item in question as "Oil in Panel -Pair 'Dogs'".
The meaning of the phrase "For Research", so far as the evidence shows, has no standard recognised meaning when used by auctioneers and valuers. Its meaning in the present context must depend on the nature of the arrangements made between the plaintiffs and Mrs Zarek, which led to her taking away the foxhound pictures. The plaintiffs' evidence was that only the first plaintiff was present during the conversation with Mrs Zarek about these particular pictures. The first plaintiff's evidence as to this conversation was to the following effect: "I didn't say I would put them up for auction. I said take them back to John Nicholson to see what he thought they were worth": (Day 1, p. 4 G). The second plaintiff similarly explained in evidence that it was the benefit of Mr. Nicholson's judgment that he wanted: (Day 1, p. 11 A). Mrs Zarek's evidence, however, was that the arrangement made and explained by her to the plaintiffs was that she would take the paintings and show them to her "senior consultant"; in referring to her "senior consultant" (though the plaintiffs did not realise this) she in fact meant not Mr. Nicholson, but Mr. Paul Thomas, who had begun working as a fine arts consultant for the firm under an agreement of 10th May 1985: (Day 3, p. 34). The research contemplated was clearly to take the form of further advice.
As the judge said, there was a misunderstanding as to who would next see the pictures. He described this misunderstanding as small and irrelevant: (Judgment 2 B). Whether or not that was an accurate description of the misunderstanding, it is, in my judgment, relevant and important to ascertain the duty which Mrs Zarek, on behalf of the defendants, assumed in relation to the plaintiffs at the meeting of 5th September 1985. As at 5th September 1985, the duty was not, I think, owed in contract, since no contract between the plaintiffs and the defendants had yet arisen, and did not arise until the plaintiffs finally agreed to put the foxhound pictures up for auction. It is, however, common ground that, as from the end of the meeting of that day, the defendants had assumed to the plaintiffs responsibilities of some sort in tort. The judge inferred (judgment 20 D-E) that in the context of a contract to "research and value" the obligation to "research"could only mean "to carry out whatever enquiries would appear to a competent provincial valuer to be necessary to arrive at a proper valuation". The reference to the making of "enquiries" in this context could, I think, be a little misleading. In my judgment, it is plain from the transcripts of evidence that what the first plaintiff and Mrs Zarek had in mind in their conversation of 5th September 1985 was not so much the making of enquiries by Mrs Zarek as the taking of advice. The proper inference is, in my judgment, that the responsibilities towards the plaintiffs assumed by Mrs Zarek in this conversation on behalf of the defendants were to express a considered opinion as to the sale value of the foxhound pictures, and for this purpose to take further appropriate advice.
The principal question on this appeal will, I think, be whether the defendants discharged these duties according to the standards of skill and care properly and reasonably to be expected of them.
I now revert to the narrative. The fine art consultancy agreement under which the defendants had engaged Mr. Thomas included the following among his duties:
"(1) To vet all paintings and drawings taken in by [the defendants] and formulate research strategy if applicable……(8) To have full access to…..research books owned by [the defendants]..……(10) To delegate research to [the defendants'] staff as required or to outside bodies, e.g. Courtauld Institute if necessary."
Mr. Thomas has no formal fine art qualifications, but in about 1976 he started dealing in paintings and, according to his evidence, before he was engaged by the defendants had attended auctions daily since 1976. It has not been submitted that on the face of it, he was not fully competent to do the job for which he was...
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