High Court ruling defends conventions of attribution

Although Mr Justice Buckley ruled that the painting sold by Agnew’s to Texan millionaire Richard Drake in 1998 was not by Sir Anthony Van Dyck, he said all the dealers had done was to express an opinion that it was, and he dismissed Mr Drake’s claim for a £1.5m refund.

The judge ruled that Mr Drake was really a victim of art agent Steven Callan, who had negotiated the deal on his behalf with Agnew’s. Mr Callan had concealed vital facts from Mr Drake because they might have threatened his commission on the purchase, the parties were told. And it was revealed that Agnew’s, who had no idea of the buyer’s identity, had written a letter to Mr Drake via the agent when they became concerned that Mr Callan did not appear to be making all the expected independent inquiries about the painting. Mr Callan never passed on the letter.

The judge said Mr Callan had doctored the copy of the Agnew’s brochure he sent Mr Drake to give the impression that the work – a half-length portrait of 17th century court favourite James Stuart, Duke of Lennox and Richmond – was being bought from a country house collection. The brochure accurately stated that the painting had been in the Marquess of Bristol’s collection from before 1819 until 1996, but Mr Callan had blanked out the words “until 1996”. This covered up the later provenance, showing that Agnew’s paid £30,000 for the painting at auction in 1996 at the Marquess’s Ickworth estate in Suffolk. Mr Callan had argued that he had not been aware of the auction purchase or price, a claim exposed as incredible by Agnew’s counsel.

Agnew’s believed that they had discovered a genuine Van Dyck – an opinion they still hold, at least partially because they do not believe Van Dyck would have left such an important commission to a minion – although this view was contradicted by Sir Oliver Millar, Surveyor Emeritus of the Queen’s Pictures and a world-renowned expert on Van Dyck.

The dealers had indicated Sir Oliver’s objection to the attribution during the sale and although the judge preferred Sir Oliver’s opinion, deeming that the work was not by Van Dyck and worth only £275,000, he exonerated the dealers of any wrongdoing.

Mr Drake had tried to argue that the attribution “by Van Dyck” meant that Agnew’s had to prove beyond doubt that the artist had painted the bulk of the work. The judge disagreed, however, upholding the conventions of attribution and noting that the sale contract did not include a term that the painting was a van Dyck. He said he had been impressed by the firm’s managing director, Julian Agnew and said that all Agnew’s had done was to express their honestly held opinion that the work was by Van Dyck. “There was never any guarantee” that that was the case, he added, and the dealers had made no promise to take the painting back if there was a problem.

Mr Drake will have to pay a substantial part of Agnew’s costs, estimated at around £485,000, as well as his own costs, and has put the painting into court as security.