“A PAIR OF LOUIS XV PORPHYRY AND GILT-BRONZE TWO-HANDLED VASES designed by Ennemond-Alexandre Petitot”
“At the viewing Mr Cooney showed Ms Thomson the Urns and praised their high quality. He drew Ms Thomson’s attention to the quality of the gilding on the lions and serpents which he described as marvellous. He said that the chasing of the Urns was equally marvellous and the patina was equally fine. He explained that the quality of the work reflected the superb craftsmanship of the 18th century which he described to Ms Thomson as a “lost art”
“The gist was that Mr Cooney spoke very highly of the quality of the urns as examples of 18th century craftsmanship, and did not suggest that there was anything other than certainty that they were what they were described to be. He also said in evidence that he thought that he had said that the urns were by far the best item in the sale that she had looked at, and that it was better to buy one big thing than a number of smaller items. … He said he tried to give her all the information he could. For her part Ms Thomson said … that she would not have made the purchase without expert advice because she did not have the understanding to make an informed decision, and that she looked to Mr Cooney together with what was in the catalogue for that.”
“The following matters speak strongly in favour of an 18th century date: a) I accept that the chasing and pouncing have the signature of circa 1765 rather than of revivalist work. I am satisfied that when he saw the urns M. Moreira had no doubt about that, and I respect his skill and experience. He is a man who has spent his life working with such objects. M. Moreira was supported by Mr Bourne, who impressed me with his knowledge and as a careful expert witness. b) The use of mercury gilding on all parts save the liners. If mercury gilding was used to create an 18th century effect in the 19th century, it would surely have been used on the whole ensemble rather than electro-plating the liners and so revealing the actual date. This suggests that the electro-plate was not original. In view of the tests on the liners to establish whether or not there was an original mercury gilding, the probability is that the liners were left ungilded following manufacture. I do not find that surprising. The surface area of the liners is comparatively large and only a small part is visible unless one looks down into them. It seems to me that they may well have been left as polished bronze, and perhaps lacquered, that is varnished, to preserve the shine, as was often done. … [considerations relating to the gilding of the liners of the Getty and Greek vases do not] … over-ride my conclusion that the gilding of the liners actually supports an earlier date for the urns. c) If the electro-plate gilt is original, it is extraordinary that the repair inserted into the liner was done so badly and visible solder was left at a number of points. All this shows that the repair was subsequent of the manufacture. The strong probability is that the repairs consisting of the insertion of a new piece and the addition of patches of solder to smooth the surface were done at the same time as the electro-plating, perhaps by a workshop whose speciality was electro-plating rather than bronze working. d) I have concluded that the porphyry is substantially more likely to have been worked in the 18th century than later. This also dates the whole. The main arguments for a date sometime after the mid-nineteenth century are those relating to electro-gilding, blow torch brazing and the metallurgical analyses. I do not think that any of these points can be brushed aside. They are matters which raise uncertainty. I have taken the various metallurgical aspects individually. There is nothing in them that supports an 18th century date; they are all points against it. Taken together they carry more weight than individually, rather on the basis that a horse is more likely to fall if it has to clear six jumps than one. I conclude that in particular the factors which I have just listed in favour of an 18th century date outweigh those which are against it. I cannot be certain that the Houghton urns were made around 1760 to 1765, but I think that it is likely. The evidence establishes the position somewhere between certainty and more likely than not. If a figure must be placed on it, I would put it in the region of 70 per cent. I am of this view after having reviewed and reconsidered all the evidence and submissions which I have heard.”
“It is well-established practice of auction houses and the art world generally to date items such as the Houghton urns by visual examination in conjunction with such information as to the item as may be already available or obtainable by such research as is reasonably to be expected of the auction house in the circumstances. The examination must be as thorough as the circumstances reasonably require and it must be done by persons of appropriate qualifications and experience. It will not, cannot, and need not be as exhaustive as the examinations which have been carried out for the purposes of this trial: that is impractical. The outcome will be an expression of opinion as to date, which may be expressed in absolute terms such as here, or in more guarded terms, using words such as “probably” or “possibly”
“(1) The 18th/19th century problem arising from copies and imitations: this is a reason for care; it does not preclude the identification of a decorative object as 18th century by means of its visual features. (2) Lack of provenance: this is very common, but is a reason for caution. (3) Electrogilding of the liners: Christie’s did not observe this, nor did M. Moreira when he first saw the urns, even though Mr Bourne said that it was obvious; but even if it had been spotted, Christie’s could have concluded that it was a re-gilding, perhaps following the repair to one liner. They did not then know that the Getty and Greek urn liners probably had also been electro-gilded. (4) There were a number of unusual features – the proportion of gilding to porphyry, the use of scagliola, the use of liners, the lack of comparable design: these points largely arise from Petitot’s design. (5) The finish of the porphyry and the quality of the chasing: I refer to what I have already said. (6) The features of the design: it was an 18th century design; I do not find Mr Paterson’s point as to the portrayal of the lions being typical of the 19th century persuasive. (7) Casting and chasing: I refer to what I have already said. (8) Gillian Wilson’s view: she gave a date to the Getty urns of 1765 to 1770, which in so far as it is relevant to the Houghton urns supports Christie’s on date. Her uncertainty as to where they were made does not reflect on the date. (9) The existence of 19th century vases after the Petitot design: these were identified as 19th century, which might encourage Christie’s in distinguishing them and confirming their own dating. (10) The comparison with the Getty urns made by Christie’s was by photograph only. This was a reason for Christie’s not to rely on the Getty dating of its urns: for without a full comparison Christie’s could not know how similar the two pairs were and so whether they could draw any support at all for their dating. Christie’s were entitled to conclude from the Getty literature and the correspondence only that there was another pair of similar urns which had been dated 1765 to 1770 by an institution of high repute and expertise. If Christie’s concluded independently that the Houghton urns were also of that date, they could find some confirmation and encouragement in the Getty dating of their urns because the Getty dating strongly suggested that urns to Petitot’s design were made in the 18th century. (11) The Bossi engraving: I refer to what I have already said about this aspect.”
“Mr Bourne was confident in his opinion that the urns were approximately contemporary with the Bossi engraving, and he was supported by M. Moreira, a man of greater expertise in some aspects. I do not think that they were negligent in how they reached that conclusion. It was one which they and an auction house such as Christie’s could come to consistently with the exercise of the skill to be expected of an auctioneer of Christie’s standing. Mr Bourne and M. Moreira considered the points on which Ms Thomson relies, and they had reasons for rejecting them which were reasonable. I conclude that Christie’s dating of the urns as Louis XV without qualification was an opinion which an auctioneer of their standing could reasonably reach, and that there was no breach of duty on their part in that regard.”
“It is only when a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench-mark by reference to which the defendant’s conduct falls to be assessed.”
“A negligence claim is habitually analysed compartmentally by asking whether there was (a) a duty of care; (b) breach of that duty and (c) damage caused by the breach of duty. But damage is the essence of a cause of action in negligence and the critical question in a particular case is the composite one, that is whether the scope of the duty of care in the circumstances of the case is such as to embrace damage of the kind which the plaintiff claims to have suffered. As Lord Bridge of Harwich said in the Caparo case[1990] 2 AC 605 , 627; “it is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.”
“The essential question which has to be asked in every case, given that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such … that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained.”
“Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful. In the case of liability in negligence for providing inaccurate information, this would mean liability for the consequences of the information being inaccurate.”
“I think that one can to some extent generalise the principle upon which this response depends. It is that a person under a duty to take reasonable care to provide information on which someone else will decide upon a course of action is, if negligent, not generally regarded as responsible for all the consequences of that course of action. He is responsible only for the consequences of the information being wrong. A duty of care which imposes upon the informant responsibility for losses which would have occurred even if the information which he gave had been correct is not in my view fair and reasonable as between the parties. It is therefore inappropriate either as an implied term of a contract or as a tortious duty arising from the relationship between them. The principle thus stated distinguishes between a duty to provide information for the purpose of enabling someone else to decide upon a course of action and a duty to advise someone as to what course of action he should take. If the duty is to advise whether or not a course of action should be taken, the adviser must take reasonable care to consider all the potential consequences of that course of action. If he is negligent, he will therefore be responsible for all the foreseeable loss which is a consequence of that course of action having been taken. If his duty is only to supply information, he must take reasonable care to ensure that the information is correct and, if he is negligent, will be responsible for all the foreseeable consequences of the information being wrong.”
“… such general rule is not to be inflexibly implied where to do so would prevent him obtaining full compensation for the wrong suffered; (5) although the circumstances in which the general rule should not apply cannot be comprehensibly stated, it will normally not apply where either (a) the misrepresentation has continued to operate after to the date of the acquisition of the asset so as to induce the plaintiff to retain the asset or (b) the circumstances of the case are such that the plaintiff is, by reason of the fraud, locked into the property.”