Thomson v Christie Manson & Woods Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,Lord Justice Jonathan Parker |
| Judgment Date | 12 May 2005 |
| Neutral Citation | [2005] EWCA Civ 555 |
| Docket Number | [2004] EWCH 1101 (QB) |
| Court | Court of Appeal (Civil Division) |
| Date | 12 May 2005 |
[2005] EWCA Civ 555
Lord Justice May
Lord Justice Jonathan Parker and
Lady Justice Smith DBE
[2004] EWCH 1101 (QB)
Case No: A2/2004/146 & 1470
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Hon Mr Justice Jack
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Sumption QC; Andrew Onslow QC; Tamara Oppenheimer (instructed by Reynolds Porter Chamberlain) for the Appellants
Lord Grabiner QC; David Kitchin QC; Paul Greenwood (instructed by Herbert Smith) for the Respondent
Introduction
Christie's, the first defendants, held an important auction sale in London on 8 th December 1994. The sale was of the contents of Houghton in Norfolk, owned by the seventh Marquess of Cholmondeley. Lord Cholmondeley is the third defendant in these proceedings, but is not concerned with this appeal. The sale included 18 th and 19 th century French furniture and objets d'art. Lot 56 was described in Christie's catalogue as "A pair of Louis XV porphyry and gilt-bronze two handled vases". A photograph established that the vases had been owned by Lord Cholmondeley's grandmother in 1921, but there was no earlier established provenance. Ms Thomson, the claimant, bought the vases at the sale for £1,957,388 including the buyer's premium. The price exceeded Christie's estimate by some three times. In the final stages of the auction, there was one other bidder, believed to have been Ann Getty. After buying the vases, Ms Thomson put them into storage with Christie's. In October 1998, she heard a suggestion that the vases might not be Louis XV, but imitations made in the mid-19 th century or later. She communicated this fear to Christie's. They initiated a metallurgical investigation. This investigation, now discredited, concluded that the vases were made in the 19 th century.
In these proceedings, Ms Thomson claimed against Christie's and Lord Cholmondeley on the ground that the vases were made in the 19 th century and worth only about £25,000. She claimed that Christie's had owed her a duty of care which they had broken in not warning her of a risk that their judgment that the vases were made in the 18 th century might be questionable or wrong.
The action was tried by Jack J, who gave judgment on 19 th May 2004— [2004] EWHC 1101(QB). His judgment is a masterpiece of evidentiary analysis, worthy to stand with any such exposition of works of art of this kind. It is an optimistic appellant who would try to have any of his factual judgments reversed.
The judge decided that the vases were made in the 18 th century. He so concluded on a balance of probabilities which he weighed as being 70%. He decided that Christie's had not been negligent in cataloguing the vases as Louis XV. But they had a special client relationship with Ms Thomson giving rise to a more exacting duty of care to her. The judge found Christie's to have been in breach of this duty. This entitled Ms Thomson to damages measured as the difference between what she paid for the vases, including the buyer's premium, and "their actual worth" (paragraph 200) plus interest. Their actual worth was their value at the time of purchase on the basis of the judge's finding as to the probable date (paragraph 201), the degree of probability being of the order of 70% (paragraph 204). If the parties were unable to agree a figure, there would have to be an enquiry as to damages.
Christie's appeal and Ms Thomson cross-appeals against the judge's decision.
Christie's main grounds of appeal are that:
i) the judge, having correctly found that they were not negligent in their cataloguing, was wrong and inconsistent to find them in breach of any duty owed to Ms Thomson; and
ii) the judge was wrong in his finding as to the measure of damages.
Ms Thomson, although forensically content with the judge's conclusion, contends that
iii) the judge was wrong not to find that the vases were made in the 19 th century; or
iv) the judge should at least have held that Christie's should have qualified their catalogue entry for the vases to describe them as "probably Louis XV" or by some such qualification.
Each party submits or acknowledges that the judge's finding that Christie's were in breach of duty to Ms Thomson sits uncomfortably with his finding that their catalogue entry was not negligent. In my view, the main eventual issue in this appeal can be expressed as whether the judge should have held that Christie's should have qualified their catalogue entry. This blurs some of the intermediate issues, but it sufficiently expresses the main point.
The judge's findings as to the date when the vases were made took account of extensive metallurgical and other scientific evidence put together for the purpose of these proceedings. Ms Thomson does not suggest that Christie's should have acquired information of this kind before the auction. It is not relevant to any question whether Christie's were in breach of duty. The judge regarded it as relevant to an assessment of damages. Christie's say he was wrong here. They say, and Lord Grabiner on behalf of Ms Thomson accepts, that any damages are to be assessed as at the date of the alleged breach of duty, that is December 1994. Christie's also say that any assessment of damages must leave out of account subsequently acquired information relevant to the dating of the vases which they were not obliged to acquire in 1994. Any damages, they say, must relate to the breach of duty established. They say that the value of the vases in 1994 was what Ms Thomson paid for them and that therefore she establishes no loss relating to the breach of duty which the judge found.
This court is not concerned with questions of limitation.
It is Christie's case that the vases were made in about 1765, that is in the last decade of the reign of Louis XV. It was, and still is, Ms Thomson's case that they were made after 1840 and probably after 1880. There was a revival of interest in earlier styles in gilt bronze during the Second Empire (1840–1870). Two technical features of the liners of the vases suggest dates not earlier than 1840 and 1880 respectively, and these are said to date the vases as a whole. Other metallurgical evidence also points strongly to a 19 th century date.
During the trial Christie's conceded that it owed Ms Thomson a duty to use reasonable skill and care in describing the vases as Louis XV and in making statements to her about their date and quality. The standard of care conceded was that of a reasonably competent international auction house specialising in the sale of fine art and antiques. As Mr Sumption explained to us, Christie's made this concession because, as discussed later in this judgment, its representative Mr Cooney gave Ms Thomson information about the date and quality of the vases, and because Christie's knew that she had no relevant expert knowledge and that she was not taking independent expert advice. Christie's did not concede that they owed such a duty generally to the bidding world at large. They did not rely against Ms Thomson on any of their Conditions of Business as excluding or precluding any duty of care to her. Ms Thomson contended for a rather wider duty than Christie's conceded.
The Houghton Vases
The judge gave a detailed description of the Houghton vases in paragraphs 17 to 19 of his judgment. A briefer description is as follows.
The bowl of each vase is made mainly of porphyry. The bowls are supported, and to a significant extent concealed, by elaborately fashioned gilded mounts made of brass. Gilded brass is sometimes inaccurately referred to as gilt bronze. It is also sometimes called ormolu. The mounts comprise two lions facing each other across the lip of the bowl. The lions' bodies and heads are in the nature of handles. The lions' claws hold in place gilt bronze drapery around each side of the vases from one lion to the other. The bowls are supported in a shallow basin of pointed gilded leaves. The leaves are supported by two gilded entwined snakes. Two small screws attach the leaves to the snakes. The snakes rest on a rectangular gilt base with recessed panels decorated with pouncing.
The bowls are not made entirely of porphyry. Their lower parts, concealed by the gilt mounts, are made of a cement like material, referred to as scagliola, in part painted to look like porphyry. The kind of porphyry of which the visible parts of the bowls are made came from Egypt and had not been quarried since Roman times. The porphyry bowls therefore had a previous existence in some form. The judge thought that they had probably been fashioned and drilled from pieces of Roman column (see paragraph 117 of the judgment). It would be easier to drill right through a piece of column and mend the concealed base of the bowl with cement than to make a complete bowl. Those advising Ms Thomson preferred the idea that the bowls had previously been mortars of the general kind to be seen in the Wallace Collection. This theory would mean that the maker of the vases decided to smash the bottoms of mortars already in existence. This seems to me to be quite unlikely and the proponents of this theory gave no satisfactory explanation for it. The judge discounted it, correctly in my view. I am not convinced, however, that this disagreement is centrally important. The debate arose because there was a measure of agreement, derived from the surface...
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