Qatar Investment & Projects Development Holding Company v John Eskenazi Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jacobs |
| Judgment Date | 29 November 2022 |
| Neutral Citation | [2022] EWHC 3023 (Comm) |
| Docket Number | Case No: CL-2020-000102 |
| Court | Queen's Bench Division (Commercial Court) |
[2022] EWHC 3023 (Comm)
Mr Justice Jacobs
Case No: CL-2020-000102
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Roger Stewart KC and Luke Harris (instructed by Pinsent Masons LLP) for the Claimants
Andrew Green KC and Claudia Renton (instructed by KWM Europe LLP) for the Defendants
Hearing dates: 19 th – 28 th July and 10 th – 11 th October 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 29 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg ).
INDEX
| Section | Para. Number |
| A: Introduction | 1 |
| B: The factual background | 25 |
| B1: The witnesses | 25 |
| B2: The sales to QIPCO | 42 |
| B3: Events subsequent to the sale and the challenge to authenticity | 72 |
| B4: The original acquisition of the objects | 82 |
| C: Legal framework | 105 |
| C1: The Claimant's causes of action | 105 |
| C2: The contractual issue | 119 |
| C3: The relevance of the opinion being unqualified | 141 |
| C4: The relevant standards to assess reasonableness | 145 |
| C5: Other implied representations? | 162 |
| D: Overview and introduction to the evidence of (in)authenticity | 166 |
| E: The Hari Hara | 260 |
| E1: The art historical evidence | 260 |
| E2: Provenance | 316 |
| E3: The materials science evidence | 326 |
| F: Bactria and Gandhara: the geographical and historical background | 371 |
| G: Head of Dionysus | 394 |
| G1: Art history evidence | 399 |
| G2: Provenance | 454 |
| G3: The materials science evidence | 459 |
| H: Head of Goddess | 473 |
| I: Relief or Frieze with Emaciated Bodhisattva | 486 |
| I1: Art history evidence | 489 |
| I2: The materials science evidence | 520 |
| J: Head of a Bodhisattva | 532 |
| J1: Art history evidence | 536 |
| J2: The materials science evidence | 574 |
| K: Head of a Krodha Vighnakarta | 586 |
| K1: Art history evidence | 592 |
| K2: Provenance | 613 |
| K3: The materials science evidence | 614 |
| L: Reasonable grounds and fraud | 636 |
| L1: The parties' cases | 637 |
| L2: Discussion — general matters | 655 |
| L3: The Serpent Bracelet | 688 |
| L4: The marble heads: Head of Goddess and Head of Dionysus | 696 |
| L5: The Hari Hara | 710 |
| L6: The Frieze | 736 |
| L7: Head of a Bodhisattva | 742 |
| L8: Head of Krodha | 748 |
| M: Conclusion | 750 |
A: Introduction
This claim concerns seven objects (“the objects”) which were sold during 2014 and 2015 by the First Defendant (“JEL”), a specialist London antiquities dealer. The Second Defendant (“Mr Eskenazi”) is a director of JEL. It was common ground that JEL, including through Mr Eskenazi, is one of the most highly respected dealers and experts in the fields of Indian, Gandharan, Himalayan and Southeast Asian works of art in the world.
The purchaser was the First Claimant (“QIPCO”), a company incorporated under the laws of Qatar. The Second Claimant (“Sheikh Hamad” or “the Sheikh”) is the Chief Executive Officer of QIPCO and a senior member of the Qatari royal family. There was at one stage an issue as to whether QIPCO or Sheikh Hamad was the purchaser. The sale discussions were indeed between Sheikh Hamad and Mr Eskenazi, but the invoicing evidenced sales from JEL to QIPCO and, at the end of the trial, it was no longer in dispute that QIPCO was the purchaser.
QIPCO claims US$4,990,000, being the purchase price of the objects, and its case is that each of them is a modern forgery, not an ancient object. In consequence, it alleges various causes of action which can be summarised as follows. In respect of all objects, they advance claims for breach of contract, misrepresentation and in the tort of negligence. The contractual claim is advanced on the basis that the authenticity of the objects was contractually promised by JEL. However, they also advance alternative claims on the basis that JEL did not have reasonable grounds for believing that the objects were authentic. In respect of one object, QIPCO goes further and alleges fraud on the part of JEL and Mr Eskenazi personally. This claim concerns the most expensive object, the Hari Hara. QIPCO contends that JEL and Mr Eskenazi knew that this statue was not authentic, or sold it not caring whether it was authentic or not.
The Hari Hara statue is different to the other 6 objects in a number of respects. It comes from South East Asia, and it represents a combination of Hindu deities. The other objects came, or purported to come, from a different part of Asia, broadly speaking from an area which encompassed Afghanistan and North Western Pakistan. The invoices described various of these objects as coming from Gandhara or Greater Gandhara or Bactria: these areas are illustrated on a map in Section F below.
The relationship between the parties
The relationship between Mr Eskenazi and Sheikh Hamad began in early 2014 when Sheikh Hamad visited JEL's gallery in Maida Vale, London, with his cousin, Sheikh Saoud bin Muhammed Al Thani (“Sheikh Saoud”), who was a keen collector and a long-established client of JEL. Sheikh Hamad himself is (and was) a prolific and renowned collector of antiquities and works of art (his/QIPCO's collection is known as the Al Thani collection), and his acquisitions have been the subject of numerous museum exhibitions, including at the Victoria & Albert Museum, London, and the Metropolitan Museum of Art, New York. Sheikh Hamad's London residence, Dudley House, is a showcase for his many acquisitions. The late Queen Elizabeth II is reported to have visited and commented that it made Buckingham Palace look rather dull.
Following that first introduction, Sheikh Hamad was thereafter a reasonably regular visitor to the gallery and to the Eskenazis' nearby house; and in turn Sheikh Hamad invited Mr Eskenazi and his wife to a number of events held by the Al Thani collection and to Dudley House.
The objects purchased and the invoices
Between April 2014 and October 2015, QIPCO purchased the objects from JEL for a total of US$4,990,000. Each of the objects was purchased following oral discussion and agreement between Sheikh Hamad and Mr Eskenazi. No written contracts were concluded. However, each sale was evidenced by an invoice from JEL to QIPCO. In their opening submissions, the Claimants said (in the context of the then dispute as to the identity of the buyer) that the best evidence of the contracts were the invoices.
Each invoice contained the following words following a brief description of the relevant object:
“I declare that to the best of my knowledge and belief the item detailed on this invoice is antique and therefore over one hundred years of age.”
The objects were as follows, dealing with the chronological sequence of sales.
Head of a Goddess. This was described by JEL in the invoice as originating from the Greater Gandhara region in the late Bactrian period 2 nd/3 rd century CE. It was described as marble with garnet inlay. The sale was concluded in a telephone conversation between Sheikh Hamad and Mr Eskenazi in late March 2014. The date of the invoice is 3 April 2014. The price was US$400,000.
Head of Dionysus. This was described as originating from Bactria in circa 2 nd century CE. Its material was marble with gemstone inlays (garnets, dyed quartz). The sale was concluded in a conversation between Sheikh Hamad and Mr Eskenazi at the gallery, in November 2014. The date of the invoice is 25 November 2014. The price was US$1,275,000, which made it the second most expensive piece.
Serpent Bracelet. This was described by JEL as originating from Afghanistan in circa 1 st century BCE to 1 st century CE. Its material was gold with turquoise and garnet inlay. The sale was concluded in a conversation between Sheikh Hamad and Mr Eskenazi at the gallery, again in November 2014. It was invoiced together with the Head of Dionysus on 25 November 2014, at a price of US$125,000. In their closing submissions, the Defendants accepted that this piece was inauthentic.
Hari Hara. This statue was described in the invoice as originating from the Kingdom of Zhenla – present day Vietnam – in the late 7 th century CE. Its material was sandstone. The sale was concluded in or following a conversation between Sheikh Hamad and Mr Eskenazi at Dudley House on around 23 March 2015 and in any event at latest by 23 April 2015. The date of the invoice was 29 April 2015. The price was US$2,200,000. This is the most expensive piece.
Head of a Bodhisattva. This was described in the invoice as originating from Gandhara in the 4 th century CE. Its material was schist (which is a type of stone, with some similarity to slate). The sale was concluded in a conversation between Sheikh Hamad and Mr Eskenazi at the gallery on around 13 October 2015. The date of invoice was 20 October 2015. The price was US$730,000, making it the third most expensive item.
The Visit of Mayadevi to the Emaciated Bodhisattva (“the Frieze”). This was described in the invoice as originating from Gandhara, Swabi in the early 3 rd century CE. The material was, again, schist. The sale was also concluded in the conversation between Sheikh Hamad and Mr Eskenazi at the gallery on around 13 October 2015. It was invoiced in the same invoice as the Head of a Bodhisattva. The price was US$120,000.
Head of a Krodha Vighnakarta (“the Krodha”). This was described in the invoice as originating from Greater Gandhara in the 5 th/6 th century CE. Its material was...
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The Fine Art of Acquiring Authentic Artworks.
...authenticity. Although note the comments by Jacobs J. in Qatar Investment & Projects Development Holding Co v. John Eskenazi Ltd [2022] EWHC 3023 (Comm.) at 704, that an 'eye' is far less significant in assessing the authenticity of an ancient object as opposed to attribution to a parti......