In Countess of Wemyss and March & Anor v Simon C Dickinson [2023] EWCA Civ 724, trustees of the Wemyss Heirlooms Trust had claimed breach of duty against the dealer, Simon C Dickinson, over the sale of Le Bénédicité, purportedly by 18th century artist Jean-Baptiste-Simeon Chardin. The painting, bought by the family in 1751, was sold as ‘Chardin and studio’ in 2014 after a light clean. The dealer thought it was not solely the work of the artist.
Six months later, however, the painting was re-sold for £9.3m after a deep clean revealed a Chardin signature, and a Chardin expert declared it solely the work of the artist.
The trustees’ claim was dismissed at the High Court after a seven-day trial, and on appeal to the Court of Appeal.
Delivering the judgment, Lady Justice Falk said: ‘There was no dispute that the sale that took place was in fact authorised.
‘…The pleaded particulars of negligence included, as one aspect, a failure to warn the trustees, but there was no suggestion that there was a contractual term that required the defendant to revert to the trustees prior to sale.’
Moreover, in relation to whether the leading expert on Chardin should have been consulted, Falk LJ said the judge found ‘the decision not to do so was not negligent, because doing so would be a “spin of the roulette wheel” that could destroy, rather than enhance, the value of the painting’.
Therefore, ‘in a counterfactual world where the defendant did consult the trustees prior to sale the advice would not have been negligent and the trustees would have followed that advice. It follows that the painting would still have been sold on the terms that it was.’
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