Accidia Foundation v Simon C Dickinson Ltd. [2010] EWHC 3058 (Ch)

[2010] EWHC 3058 (Ch)Case No HC09C04097
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/11/2010
Before
MR JUSTICE VOS
Between
Accidia FoundationClaimantSimon C Dickinson LimitedDefendant
Mr John Martin QC and Mr Richard Edwards (instructed by Fladgate LLP) for ClaimantMr Charles Flint QC and Ms Elizabeth Weaver (instructed by Withers LLP) for DefendantHearing Hearing dates: 16 th to 19 th November 2010
Judgment

Introduction

[1]The underlying issue in this case is whether an art dealer who arranged the sale of a valuable drawing between two parties that wished to remain anonymous can keep a US$1 million commission that represented the difference between the amount agreed to be paid by the buyer and the amount that the seller expected to be paid. There is an issue as to whether the seller ought to have expected the dealer to retain a commission, but it is accepted that the seller could not have found out the size of the commission. The case concerns the practice of selling works of art on the basis of a ‘net return price’ agreed by the seller, in circumstances where the actual purchase price is known only to the buyer and the intermediary dealer. On this basis, the dispute raises an actual or potential clash between what are said to be ordinary notions of fair dealing on the one hand and the principles applicable to agents and fiduciaries that are familiar to equity lawyers on the other.[2]Accidia Foundation (“Accidia”), the Claimant, is incorporated in Liechtenstein. Until at least August 2007, it owned a well known drawing attributed to Leonardo da Vinci depicting the Madonna and Child with St Anne and a lamb, known as the “Geneva Drawing” (the “Drawing”). The authenticity of the Drawing has, at various times, been the subject of academic and expert debate, but that question is of no more than fringe relevance to the issues in this litigation.[3]Ms Daniella Luxembourg (“Ms Luxembourg”) is an international art dealer and consultant, who trades through a Jersey company called Luxembourg Art Limited (“LAL”), and an English company called Daniella Luxembourg Art Limited (“DLAL”). It is worthy of comment that neither side has, for whatever reasons, sought to join Ms Luxembourg or her companies into this litigation. It will be seen that, on any basis, Ms Luxembourg could be regarded as bearing a significant level of responsibility for the difficult circumstances that have arisen in this case.[4]Simon C Dickinson Limited (“Dickinson”), the Defendant, is an English company carrying on business as an agent and a dealer in fine art from premises at 58 Jermyn Street, London SW1Y 6LX. Dickinson’s most prominent director and co-founder is Mr Simon Dickinson (“Mr Dickinson”), who is a great expert in fine art, and particularly in Old Masters.[5]In the briefest of outline, Accidia engaged Ms Luxembourg to sell the Drawing as Accidia’s agent. Ms Luxembourg asked Dickinson to help her find a buyer for the Drawing from amongst its clients, which it duly did. Shortly before the sale took place, 3 agreements were entered into. The first was between Accidia and LAL, giving LAL authority to sell the Drawing. The second was a sale agreement between Dickinson and the ultimate Buyer (the “Buyer”), whose name has not been concealed in these proceedings, but who Dickinson has indicated would prefer not to be named in this judgment. The third was between LAL and Dickinson purportedly confirming their mutual understanding as to the terms of the purchase. It is common ground that the proper construction and effect of these 3 agreements will be an important factor in the determination of this case.

Factual background

[6]Before identifying the issues that have arisen for decision, it is useful to set out, in chronological order, the relatively limited material factual background.[7]At 12.03 London time on 28th November 2006, Ms Luxembourg emailed Mr Dickinson enclosing details of the Drawing, and asking him for his thoughts as to the right price, requesting him to treat the request with the utmost discretion.[8]At 16.54 New York time on 28th November 2006, Mrs Gheri Sackler (“Mrs Sackler”), who dealt with the sale for the trustees of Accidia, emailed Ms Luxembourg responding to her request for information about the Drawing, saying that Accidia had agreed to sell the Drawing, that the asking price was £7 million, and that she looked forward to working with Ms Luxembourg on the sale. It appears that Mrs Sackler spoke to Ms Luxembourg before sending this email. That call may have been what prompted Ms Luxembourg’s earlier email to Mr Dickinson.[9]On 5th January 2007, Mrs Sackler emailed Ms Luxembourg to say that the trustees of Accidia had advised her that the sale of the Drawing was “somewhat urgent”.[10]On 15th January 2007, Ms Luxembourg emailed Mr Dickinson saying that she was now entitled to sell the Drawing on behalf of the owners. She continued by saying “I think it looks serious and we should pursue it”.[11]On 15th February 2007, Ms Luxembourg emailed Mrs Sackler saying that she had “just heard back from the consultant whose client might be interested in [the Drawing] at the price of £3,000,000 including 10% commission”, and asking if it could be brought to London.[12]On 19th March 2007, Ms Luxembourg arranged for the Drawing to be sent from Gstaad, where Mrs Sackler had taken it, to Dickinson’s Jermyn Street premises. Its value was stated for customs purposes at £3 million. The consignment note from DLAL to Dickinson signed both by Ms Luxembourg and on behalf of Mr Dickinson included the following: “Agreed price £3,000,000 (not including commission) + 5% import tax if remaining in the EU”.[13]On 20th March 2007, Ms Luxembourg emailed Mrs Sackler saying that:
“[the Drawing] arrived yesterday. We need two to three weeks to do our own research. [Mr Dickinson] who acts for the buyer will see it today and he also needs time…”
. At this point, Mrs Sackler was putting a great deal of pressure on Ms Luxembourg to conclude a sale urgently, and was threatening to withdraw the Drawing from sale or increase the price if short timescales were not met. Dickinson places great reliance on this email, contending that this was the first Mrs Sackler knew of Dickinson’s involvement. It contends that the email shows that Mrs Sackler knew that Dickinson was acting as agent for the Buyer and not Accidia, and that she must have been expecting Dickinson to take a commission from the seller in addition to any commission paid to Ms Luxembourg.[14]An exchange of internal Dickinson emails on 29th March 2007 indicates that Dickinson was expecting to split with Ms Luxembourg anything obtained for the Drawing over a “return price” of £3 million.[15]On 12th April 2007, Ms Luxembourg emailed Mr Dickinson thanking him for his excellent research on the Drawing, but threatening that the trustees would increase the price if a deal was not finalised quickly.[16]On 3rd June 2007, Mrs Sackler emailed Ms Luxembourg asking whether she or Mr Dickinson had another client for the Drawing in case “this one falls through”.[17]On 28th June 2007, Ms Emma Ward (“Ms Ward”), another director of Dickinson, emailed Ms Gloria Cohen (“Ms Cohen”), who seems to have been responsible for looking after the Buyer’s art collection and advising him on it, saying that she (Ms Ward) had another idea for the Buyer and suggesting the Drawing. On 29th June 2007, Ms Ward sent Ms Cohen details of the Drawing, saying the asking price was £5 million.[18]On the afternoon of 10th July 2007, the Buyer made a personal visit to Dickinson’s Gallery in Jermyn Street to view the Drawing. He met Mr Dickinson and Ms Ward, and he too was told that the asking price was £5 million or US$10 million (the exchange rate having been assumed in this case to have been about US$2 to £1 throughout the period in which the transaction was negotiated).[19]On 11th July 2007, the Buyer visited Dickinson’s Gallery again and offered US$7 million for the Drawing subject to a test patch being done to see how an unsightly stain would respond to cleaning. After the Buyer had left, Mr Dickinson says that he called Ms Luxembourg and asked her if a “return price” of US$6 million would be acceptable to her. He says that he explained that he would have to pay commission to a third party if the sale went ahead. Later that day, Mr Dickinson says that Ms Luxembourg called him to say that a return price of US$6 million was acceptable. Ms Catherine Keller, Ms Luxembourg’s assistant (“Ms Keller”), then emailed Mrs Sackler asking “which is the addressee for the agreement regarding the [Drawing]”.[20]On 13th July 2007, Ms Keller sent Mrs Sackler “the draft agreement for the Sale of your Leonardo drawing” by email. The draft was of the agreement that was subsequently entered into between Accidia and LAL.[21]On 20th July 2007, Mrs Sackler emailed Ms Luxembourg saying that the Swiss lawyer had suggested a sales agreement as well as the commission agreement (which was eventually between LAL and Accidia) that was being drafted.[22]Dickinson’s “Deal Form” dated 24th July 2007 records that the Drawing was being bought from Ms Luxembourg for US$6 million, and sold to the Buyer for US$7 million, and that Ms Luxembourg was returning US$5.5 million to the vendors keeping US$500,000 for herself, and paying £110,000 commission to Ms Cohen and $50,000 to “MLB” (who is a Ms Marie Lucie Bisiaux: “Ms Bisiaux”), and that Dickinson’s commission was c. US$700,000 after deductions.[23]On 27th July 2007, Accidia entered into a written agreement with LAL (the “LAL Agreement”), whereby LAL agreed to act as Accidia’s “sole and exclusive agent for the private sale of [the Drawing]”. The terms of the LAL Agreement included the following:- i) “[LAL] will act as your sole and exclusive agent for an initial period of six weeks, precisely from July 1st 2007 to August 12th 2007, to sell the [Drawing] by private treaty for the agreed upon net price to seller of USD 5,500,000.00: In the event that the [Drawing] is not sold within that period, this consignment and agency agreement will be extended only by written consent”. ii) “As [LAL] will be acting solely as your agent, the contract for the sale will be between [Accidia] and the Buyer”. iii) “1. Expenses [LAL] will pay all expenses of packing & shipping [the Drawing], insurance and consultations, including condition reports. Further [LAL] will pay all costs of the contract of the private sale and of its implementation between [LAL] and [Accidia]”. iv) “2. Custody Arrangements In order to arrange for consultations and sale, [LAL] has arranged for the [Drawing] to be held at the premises of [Ms Luxembourg], A10 The Albany, Piccadilly, London W1J 0AL. [The Drawing] will not be released to any third party until full payment of the agreed price has been received either by [LAL], as [Accidia’s] agent, or directly by [Accidia], the owner, the Accidia Foundation, or its legal representative”. v) “3. Commission [LAL] will charge a commission on the sale as agreed between [Accidia] and [LAL]. Said commission of up to ten per cent is to be secured by [LAL] beyond and above agreed upon net sales price”. vi) “5. Indemnity … If this letter agreement sets out your full and complete understanding of the terms of the consignment, please sign and return …”.[24]Also, on 27th July 2007, Dickinson invoiced the Buyer for US$7 million for the Drawing.[25]On 8th August 2007, Dickinson (signing by Ms Ward) entered into a sale agreement with the Buyer to sell the Drawing to the Buyer for US$7 million (the “Sale Agreement”). Dickinson expressed itself in the first recital to the Sale Agreement as acting “as agent for the Owner”, and the second recital to the Sale Agreement said that “Dickinson is agent for an undisclosed principal that is the owner (the “Owner”) of [the Drawing]”. The material parts of the Sale Agreement provided as follows:- i) “1. Sale. On behalf of and as agent for the Owner, Dickinson hereby agrees to sell [the Drawing] to the Buyer, and the Buyer hereby agrees to buy [the Drawing], subject to the terms and conditions set forth in this Agreement”. ii) “2. Purchase Price. The aggregate purchase price of [the Drawing] (the “Purchase Price”) is [US$7 million]. Payment of the Purchase Price shall be made by wire transfer to the account of Dickinson at: SEE INVOICE FOR DETAILS”. iii) “3. Restoration Work. Immediately following payment of the Purchase Price Dickinson shall retain JANE MCAUSLAND (the “Restorer”) to remove stains and conduct paper repairs to [the Drawing] … Owner shall pay Restorer for such services in an amount of £2,500”. iv) “4. Delivery. 4.1 Bill of Sale. Upon receipt of the Purchase Price, Dickinson shall deliver to the Buyer … the Bill of Sale, in the form attached as Exhibit C, originally executed by Dickinson, as agent for the Owner”. v) “5. Certain Representations and Warranties. Dickinson hereby represents and warrants that: (a) Dickinson has the unrestricted right and authority to act on behalf of the Owner to sell [the Drawing] to the Buyer on the terms and conditions set out herein,…”. vi) “6. Title. Title to [the Drawing] shall pass to the Buyer upon receipt by Dickinson of the Purchase Price pursuant to this Agreement”. vii) Ms Ward’s signature to the signed Sale Agreement was appended after the words: “[Dickinson], as agent for the Owner and as a principal with respect to the duties and representations of it as set forth above”. viii) Exhibit C contained the terms of the Bill of Sale referred to in clause 4.1 including the following provisions:- a) “BILL OF SALE, given this 8th day of August, 2007, by [Dickinson], as agent for an undisclosed principal (the “Owner”), to [the Buyer]”. b) “WHEREAS, the Buyer and Dickinson, as agent for the Owner and on its own behalf, have entered into [the Sale Agreement], pursuant to which the Owner has agreed to sell, transfer, assign and convey to the Buyer [the Drawing]”. c) “1. Dickinson on behalf of the Owner, hereby irrevocably sells, transfers, conveys, assigns and delivers [the Drawing] to the Buyer …”.[26]At 18.05 on 8th August 2007, Ms Ward emailed Ms Keller (acting for Ms Luxembourg or LAL) saying she had signed and returned the Sale Agreement with Dickinson’s buyer, and enclosing a draft contract (which was a draft of what became the 9th August Agreement) that she felt it would be advisable to “formalise between ourselves”, and asking that Dickinson be issued with an invoice for US$6 million “for our paperwork to be in order”. At 18.16 on the same day, Ms Keller emailed Ms Ward saying that she had checked with Ms Luxembourg and “it is fine for her. Lets (sic) go ahead”.[27]On 9th August 2007, Dickinson entered into a letter agreement with LAL (the “9th August Agreement”) concerning the terms and conditions “upon which [Dickinson’s] client agrees to purchase [the Drawing]”. The letter constituting the 9th August Agreement was written by Ms Ward of Dickinson and addressed to Ms Luxembourg as “Agent acting on behalf of “the Vendors”” at LAL in Jersey. The 9th August Agreement included the following provisions:- i) “We [Dickinson], in our capacity as agent to the Buyer, have agreed a private treaty sale of [the Drawing] and duly agree to return you net $6,000,000 … We have also agreed to split three ways the anticipated restoration costs (£2,500 + VAT) and the antique re-framing costs (£16,500 + VAT)”. ii) “The Purchase Price will be paid by our client in one instalment upon execution of the Purchase Agreement. We shall not be obliged to reveal the identity of the Buyer to you …”. iii) “Upon payment of the full funds title will pass to the Buyer and [Dickinson] will begin the proposed conservation work”. iv) “Daniella Luxembourg Fine Arts Limited undertakes and warrants that … c) You acknowledge that Dickinson will be relying on the undertakings and warranties you have given in making our own warranties to the purchaser …” v) The 9th August Agreement was signed by Ms Luxembourg as being “Agreed to and Accepted by Daniella Luxembourg Arts Ltd. Represented by Daniella Luxembourg (the “Agent to the Vendor”)”. Although the contracting party to the 9th August Agreement on Ms Luxembourg’s side is thrown into some doubt by the variety of descriptions of that party in the document itself, it is common ground that LAL was the contracting party, and indeed the surrounding email traffic indicates that Ms Luxembourg requested that the contracting party be changed to LAL. That was apparently done in the address, but not done at the end of the document or in its body, probably in error.[28]The sum of US$7 million was paid by the Buyer to Dickinson on 9th August 2007, arriving at about 11.06. By 14.29 on 10th August 2007, US$6 million was transferred by Dickinson to LAL. By 16.24 on 10th August 2007, LAL had paid Accidia US$5 million and Mrs Sackler US$500,000.[29]On 14th August 2007, LAL invoiced Accidia for its introductory commission in the sum of US$500,000 on a sale price stated to be US$5.5 million. Also on that date, Ms Ward e-mailed Mr Mohammed Gharib, acting for the Buyer, reporting that: “we met our payment deadline with the vendors on Friday [10th August], so I can now happily confirm good title has passed to [the Buyer] and he is now the proud owner of one of the last Da Vincis in private hands”.[30]On 15th August 2007, LAL sent Dickinson a receipted invoice for the Drawing dated 9th August 2007 in the sum of US$6 million.[31]In or about September 2007, Dickinson paid commissions on the sale to Ms Bisiaux’s company in the sum of US$40,000, and to Ms Cohen’s company in the sum of £110,000.[32]On 28th March 2008, the Buyer wrote to Ms Ward at Dickinson contending that the major auction houses had had serious concerns about the authenticity of the Drawing for a number of years, that he was troubled that they would not accept the Drawing for resale, and seeking a refund of the purchase price or a re-purchase by Dickinson.[33]On 21st April 2008, Mrs Sackler emailed Ms Luxembourg saying that Accidia had only got the LAL Agreement and no other sales agreements on record, and that it had been advised “not to get involved until we have seen at least a copy of the sales agreement”. She suggested that Dickinson should find a new buyer for the Drawing.[34]On 24th April 2008, Ms Luxembourg’s lawyer handed over a dossier to Mrs Sackler, which seems to have included a copy of the Sale Agreement showing the sale price to the Buyer of US$7 million. This was the first time that Mrs Sackler had seen it. It appears to have been provided by Dickinson to Ms Luxembourg’s lawyers a few days before.[35]There followed on 24th April 2008, a meeting between representatives for Accidia, Ms Luxembourg, Dickinson and the Buyer in an attempt to resolve the problems created by the Buyer’s complaints. Notes of this meeting were taken by Ms Magdalena Berger (“Ms Berger”) for Mrs Sackler. These notes do not show that Mrs Sackler made any complaint about the US$7 million sale price at the meeting, but mentioned the discrepancy to Ms Berger after they left the meeting.[36]After further negotiations, on 17th June 2008, Dickinson bought the Drawing back from the Buyer, apparently for US$7 million.[37]On 3rd July 2008, Professor Martin Kemp, a Leonardo da Vinci expert revised his opinion about the Drawing so as to conclude that it was a “one-off drawing from the last years of [Leonardo da Vinci’s] life, that is to say, c. 1517”. On 4th July 2008, Mrs Sackler emailed Ms Luxembourg concerning Professor Kemp’s opinion concluding: “With this in hand they should not have any difficulties to secure the right buyer. Definitely this increases the value of the [Drawing] considerably”.[38]On 13th February 2009, Accidia’s solicitors sent a letter before action, and in October 2009, the Claim Form in these proceedings was issued seeking recovery from Dickinson of the commission of US$1 million that it had made on the sale, allegedly as agent for Accidia.

The issues

[39]The issues that require to be determined in these proceedings have been agreed between the parties as follows:- i) In entering into(i) the Sale Agreement and(ii) the 9th August Agreement, was Dickinson in each case acting (a) as a principal; (b) as agent for Accidia or (c) as agent for the Buyer? ii) Did LAL have actual and/or implied actual authority from Accidia to enter into the 9th August Agreement? iii) Did Accidia ratify the Sale Agreement by receipt of the payment from LAL or otherwise? iv) Did Accidia ratify the 9th August Agreement, or is Accidia otherwise bound by its terms? v) Is Dickinson liable to account as an agent or fiduciary of Accidia for (a) the gross undisclosed commission of US$1 million that it made on the transaction and (b) compound interest on that sum? vi) If so, can it deduct the expenses it incurred and/or a quantum meruit for its reasonable remuneration in relation to the transaction, and if so, in what sums?

Witnesses

[40]Mr Andrew John Baker, an English solicitor, is a member of the board of Accidia, and confirmed that Accidia remains in existence. He was not cross-examined.[41]Mrs Sackler was the only substantive witness for Accidia. As I have said, she was entrusted by the trustees of Accidia to arrange the sale of the Drawing. She had been working for Accidia in relation to various works of art for some 20 years and on the Drawing since Accidia acquired it in about 2006. Mrs Sackler is a member of the Leonardo da Vinci Society and of the acquisition committee of the Guggenheim Museum in New York, and was herself plainly knowledgeable about Leonardo da Vinci and the art market.[42]Mrs Sackler was heavily cross-examined in four peripheral areas. i) First, Mrs Sackler was asked about the payment of US$500,000 that she received from the US$6 million that LAL received as the proceeds of sale of the Drawing. Mrs Sackler herself described the US$500,000 she received as her ‘commission’ in her email to Ms Luxembourg on 22nd May 2009, although I accept that she was being paid for other services as well as those in relation to the Drawing. Ultimately, I am not sure that Mrs Sackler’s precise payment arrangement with Accidia has any bearing on the issues I have to decide. ii) Secondly, Mrs Sackler was criticised for disclosing only some of her emails, chosen to demonstrate what she knew about Mr Dickinson’s involvement. She explained the procedure she had adopted, her mistaken omissions to disclose some emails, and the crash of her computer leading to the loss of those emails she had not put in Word documents, and I accept her evidence in this regard. I reject the suggestion that the way Accidia’s disclosure was conducted demonstrated any desire to conceal part of the story. iii) Thirdly, in relation to the 24th April 2008 meeting, it was suggested that Mrs Sackler was trying in some way to influence events by telling the meeting falsely that Accidia had been or would shortly be dissolved. I accept that Mrs Sackler did give the impression that Accidia would most likely be dissolved and even that she said words to the effect of: “for all I know it may already have been dissolved”, but I am not at all satisfied that what she said was inaccurate, let alone dishonest. Moreover, I do not think that this incident is particularly significant in evaluating her relevant evidence, save insofar as it is relevant to the ratification issues. Mrs Sackler was very keen not to repay any of the money that Accidia had received, as she had already made clear to Ms Luxembourg on 21st April 2008, when she wrote: “I know for certain that trustees will not consider [Mr Dickinson’s] lawyer’s proposal” (which was to cancel the sale). Moreover, later on, I am sure that Mrs Sackler hoped that Professor Martin Kemp’s revised opinion on the authenticity of the Drawing, dated 3rd July 2008, would enhance its value and enable a difficult problem to be dealt with more easily. But again, I am not sure that these machinations have any bearing on the matters truly in issue here. iv) Finally, Mr Charles Flint QC, counsel for Dickinson, suggested that Mrs Sackler was unreliable in the way she gave evidence about whether or not she had ever had a written Power of Attorney to act for Accidia. I accept that she was coy about this issue, and she may well have had some written evidence of her authority to act for Accidia, but again I do not think her evidence on this aspect assists very greatly in deciding the real issues.[43]Mr Flint also cross-examined Mrs Sackler with a view to showing that the first she had heard of Mr Dickinson’s involvement was Ms Luxembourg’s 20th March 2007 email. But I accept Mrs Sackler’s recollection that Ms Luxembourg told her early on in January or February 2007 that she wished to use Mr Dickinson to help find buyers for the Drawing as he was a great expert in the Renaissance and in Old Masters. The relevance of this point was Dickinson’s argument that Mrs Sackler was untruthfully suggesting that she thought that Dickinson would be paid out of Ms Luxembourg’s 10% commission, because she had not even known about Dickinson’s involvement when the 10% was first discussed in early 2007.[44]Despite Mr Flint’s attacks, I broadly accept Mrs Sackler’s evidence on the more important issues in the case, even though I acknowledge that she was not always entirely straightforward, and there were some peripheral aspects on which she was less than fully frank. But as to the following issues, I have no doubt that Mrs Sackler was telling the truth:- i) First, I am quite sure that she did not know in July or August 2007 that Dickinson was intending to take a commission beyond the US$6 million sale price that Accidia had agreed. That might well have been naïve, but it was, I think, the fact. ii) Secondly, I accept that Mrs Sackler thought that Ms Luxembourg would be sharing her 10% commission with Dickinson, Accidia having specified in the LAL Agreement that it would not pay more than a 10% commission and that LAL was to be its sole and exclusive agent. iii) Thirdly, I accept Mrs Sackler’s evidence, which was not in any event specifically challenged, to the following effect:
“I was on vacation in Ibiza when I received a call from [Ms Luxembourg] sometime between 7 and 10 August 2007, advising me that their client had agreed to buy the Drawing for the total sale price was [sic] US$6 million and that she would send me the invoice if this met with our approval”
. Having checked with Accidia’s trustees, Mrs Sackler said that this would be acceptable. iv) Fourthly, I accept Mrs Sackler’s evidence that she only discovered that Dickinson had sold the Drawing for US$7 million on the 24th April 2008. Whilst it is, perhaps, odd that Mrs Sackler did not say anything at the meeting itself, Ms Berger’s note of the meeting records that Mrs Sackler mentioned the issue to her outside the meeting, and I accept that she did.[45]It is perhaps worth noting in passing at this stage that Ms Luxembourg was not called by either side to give evidence. Had she done so, she would have had to have explained how she thought Dickinson was getting paid, since she certainly knew (as opposed to Mrs Sackler) that she was not sharing her $500,000 commission with Dickinson. On the evidence I heard, I do not see how she could have answered this question satisfactorily. She must have known that Dickinson was taking an additional commission above US$6 million. Again, on the basis of Mrs Sackler’s evidence, I am quite clear that Ms Luxembourg had not told Mrs Sackler that Dickinson was, to her knowledge, taking such a commission.[46]Mr Dickinson was a straightforward witness. He has long experience in the Old Masters market and explained to me how the deals he does vary enormously from case to case. I accept Mr Dickinson’s evidence that he agreed with Ms Luxembourg that he would be returning US$6 million to her to include her commission, and that he would be receiving an additional commission on top to pay himself, his expenses, and other people he had to “look after”, being the difference between the US$6 million and the undisclosed price at which he was selling the Drawing to the Buyer. I also accept that Mr Dickinson did not see anything wrong with this “net return price” arrangement, and that Mr Dickinson thought that Ms Luxembourg had a “very good idea” of how much commission he was getting. As he explained to me, he thought he was taking a fair commission (i.e. the US$1 million less expenses and commissions, giving him a net figure of about US$700,000), and he would have told Ms Luxembourg if he had achieved such a high price that he thought his commission was unfairly large, and agreed with her an increase in the return price. He also told me that such an arrangement was one he made with other dealers rather than with lay clients. In essence, the problem is that Mr Dickinson’s business is based entirely on trust. He found it hard to understand the problem with his being the arbiter of whether his own commission was fair. As appears below, however, equity lawyers may take a different view.[47]Mr Dickinson did not prevaricate over his role in the transaction, but accepted in oral evidence that the role he had originally agreed with Ms Luxembourg was to help her market and sell the Drawing for her client. In effect, therefore, he accepted that he was acting as an agent for the seller, since he assumed the role long before he had any buyer to act for, and he accepted he would probably not have considered buying the Drawing as a principal for his stock.[48]Ms Emma Ward is a director of Dickinson, and was primarily involved on Dickinson’s behalf in arranging the sale of the Drawing. Whilst she said many of the same things as Mr Dickinson, she was not quite such a satisfactory witness. First, she tried unsuccessfully to give the impression that the 9th August Agreement had been created at the same time as the Sale Agreement, when her own statement and the contemporaneous documents showed clearly that she had brought the draft into being after she had signed the Sale Agreement. This contention was even more surprising in the face of the wording of the 9th August Agreement itself that used the past tense “have agreed” to describe the private treaty sale. Secondly, Ms Ward’s repeated refrain, offered by way of explanation for any misguided approach she adopted was that she was not a lawyer, but an art dealer. Indeed she went so far as to say that “as an art dealer, I think I did OK – we got a sale”, indicating to me at least that she thought that the ends justified the means, and that she had no regrets about the ultimate seller’s discomfort. Thirdly, Ms Ward also answered Mr John Martin Q.C.’s (counsel for Accidia) questions about Dickinson’s role far less satisfactorily than Mr Dickinson. She said that she saw herself as “an intermediary assisting Ms Luxembourg to find a buyer and taking a commission in the middle”, without facing the question of whether it was appropriate to fix that commission herself without seeking or obtaining consent from either the buyer or the seller. She was evasive and unwilling to accept the obvious, namely that Dickinson was acting as agent for the seller, and sought to advance a kind of unsatisfactory half-way house suggesting that she acted for the buyer whilst Mr Dickinson may have been acting for the seller, with Dickinson acting as some amorphous intermediary. I think Ms Ward knew full well that this was a wholly untenable explanation, even though she has no legal training. Whilst I accept she may have been confused as to the detail of the legal niceties, and did make a mistake when she described Dickinson as agent of the Buyer in the 9th August 2007 Agreement, she must have realised that the Drawing could only have (or, more accurately, in fact only actually did) become the Buyer’s property because Dickinson was selling it as agent for the seller.[49]On the peripheral points to which Ms Ward’s evidence related:- i) I am sure that Mrs Sackler discovered the US$7 million price at the meeting on 24th April 2008, whether from a document on the table or from the dossier she had been given before the meeting, or from Ms Luxembourg (whose solicitor had been told some 3 days before); ii) I accept Ms Ward’s evidence that the commissions of £110,000 paid by Dickinson to Ms Cohen’s company, and of $40,000 to Ms Bisiaux were not paid pursuant to any contractual obligation binding Dickinson.

Introduction to the issues

[50]Before dealing with the 6 agreed issues in detail, I should say something by way of overview. Both sides have sought to rely on detailed analyses of the 3 contracts I have already described in order to demonstrate by a series of tortuous twists and turns that, on Accidia’s side, Dickinson was an agent for Accidia who must account for his secret commission, and on Dickinson’s side, that Dickinson was never Accidia’s agent at all, and that, even if it was, Accidia ratified the 9th August Agreement thereby accepting the “net return price” deal there set out. I shall deal with these twists and turns on their merits under the issue headings below.[51]Against this background, it is important to keep in mind what this case is really about. It is about two innocent parties who have been forced to litigate because of the conduct of a third, whom neither has chosen to bring before the Court, namely LAL and Ms Luxembourg. On the findings I have already made, Ms Luxembourg knew full well that Dickinson was taking a turn, and I am fairly confident that Mr Dickinson was right to say that she had a good idea what turn he was making. It was (at least primarily) her function to disclose these matters to her principal, Accidia, and, again on the findings I have already made, I am sure she did not do so.[52]This factor was highlighted in argument, when I put to Mr Flint that, on his case, Accidia was put in a most unenviable position when it learned of the Sale Agreement (and later the 9th August Agreement). Mr Flint argued that Accidia could only ratify both or neither; but he accepted that if Accidia ratified both agreements, it would (on his case) be unable to claim the US$1 million from Dickinson because Dickinson would never have been Accidia’s agent, and unable to sue Ms Luxembourg, because it would have ratified the net return price arrangement she agreed without telling Accidia. If ever there were a Catch 22, that was surely it.[53]This aspect was also brought into sharp relief when the construction of the LAL Agreement was debated. Mr Flint argued for Dickinson that the LAL Agreement reflected or allowed a “net return price” arrangement to be agreed with Dickinson, whilst Mr Martin contended for Accidia, as appears hereafter, that the LAL Agreement entirely prohibited any such thing. But the LAL Agreement was drafted by Ms Luxembourg, who, as I have found, knew very well that the ‘net return price’ arrangement was in place with Dickinson. Whilst Ms Luxembourg’s subjective intentions in drafting the LAL Agreement are quite irrelevant to its proper construction, the outcome of this construction question, which is one of the crucial issues in the case, will determine whether Ms Luxembourg was successful in walking the tightrope between concealing the arrangement she had made with Dickinson from Accidia and protecting her own position. Ms Luxembourg would plainly have wanted the LAL Agreement to permit her to oil the wheels of the deal by allowing Dickinson to keep whatever it had agreed with the Buyer to pay above US$6 million. But I am equally sure she did not want Mrs Sackler to be alerted to the fact that that was what was happening.[54]Finally, by way of overview, Mr Martin opened this case by describing Dickinson’s conduct in the most pejorative terms, saying that it was outrageous that dealers should operate in the way I have described, and that no seller could ever be content with such an arrangement. He relied in cross-examination upon the analogy of a vendor of a house never being content to sell for an agreed net return price of £2 million, leaving the agent to keep whatever was the difference between the actual purchase price and the £2 million, even if that difference was £1, £2 and £3 million. All that was, of course, compelling forensic advocacy. But, in the end, Mr Martin accepted that such an arrangement could be both lawful and reasonable if the vendor gave his or her fully informed consent to it. In this case, that fully informed consent was sought and obtained by Dickinson from Ms Luxembourg, but never sought or obtained by Ms Luxembourg from Mrs Sackler and Accidia. That is why this case has arisen.[55]With that introduction, I turn to deal with the issues.[56]The Sale Agreement and its attached Bill of Sale are relatively simple documents. Looked at on their own, it is abundantly clear that they can only be construed in accordance with their express and unequivocal terms. Dickinson agreed to sell the Drawing as agent for an undisclosed principal (in fact, Accidia), and that sale was completed by payment and acceptance of the purchase price and delivery of the Bill of Sale. Dickinson would have been in breach of its warranty that it had “the unrestricted right and authority to act on behalf of [Accidia] to sell the Work to the Buyer on the terms and conditions set out herein”, if, but only if, LAL and Ms Luxembourg did not have authority from Accidia to allow Dickinson to sell the Drawing at US$7 million. I shall return to that question, but for the present, it suffices to say that the title to the Drawing could only have passed to the Buyer under the Sale Agreement if Dickinson acted as agent of Accidia in entering into it (as well, of course, as stated on its face for itself). That is what Dickinson purported to do by signing the Sale Agreement. The precise effect of that Sale Agreement will need to be considered in due course. This outcome is not really disputed by Dickinson, which simply argues that, since Dickinson had no authority to enter into the Sale Agreement as agent for Accidia, the Sale Agreement was of no effect. In addition, Mr Flint submits that the 9th August Agreement should be construed in a vacuum without regard to the Sale Agreement, and that it was only the 9th August Agreement that could possibly have been effective to pass title from Accidia to the Buyer.[57]The proper construction of the 9th August Agreement is, therefore, of the greatest importance. After Dickinson had signed the Sale Agreement as agent for Accidia, it signed the 9th August Agreement the next day saying that it had “agreed a private treaty sale” in its capacity “as Agent for the Buyer”. This statement of Dickinson’s agency was accepted by Ms Ward as having been a mistake, and as having been wrong. Dickinson has pleaded that it was not acting as agent for the Buyer at any stage of the transaction. Notwithstanding these admissions, Mr Flint argues that the 9th August Agreement is to be construed on its face as providing for Dickinson to be treated as if it was acting for the Buyer. Moreover, he says that the import of the 9th August Agreement is that it was the effective agreement for sale of the Drawing from Accidia to the Buyer. There are several reasons why I am unable to accept these submissions.[58]First, the statement in the 9th August Agreement that “We in our capacity as agent for the Buyer, have agreed a private treaty sale of the Picture” was undoubtedly intended to be a reference to the Sale Agreement that both Ms Ward and Ms Luxembourg knew had been entered into (even though Ms Luxembourg had not seen it). Ms Ward had written to Ms Keller on 8th August 2007 saying:
“I confirm that I have signed and returned the Purchase Agreement with our Buyer”
. It was that same agreement, namely the Sale Agreement, that Ms Ward must be taken to have been referring to in the 9th August Agreement, taking into account the relevant factual matrix known to both parties. Likewise, the reference to the “Purchase Agreement” in the 9th August Agreement is plainly also to the Sale Agreement.[59]Secondly, whilst the 9th August Agreement opens with a reference to it confirming “our understanding” of the terms on which the Buyer “agrees to purchase” the Drawing, that is not a recital that the 9th August Agreement was itself the agreement for sale, rather it is a recital that the 9th August Agreement was recording the understanding of Ms Luxembourg and Dickinson as to those terms, it being understood on both sides that the sale had already happened. In reality, the 9th August Agreement contained a purported authorisation of Dickinson to have done what it was known by both parties to have already done, namely sold the Drawing on behalf of Accidia, and dealt also with what was to happen to the proceeds of the sale. It made clear that Dickinson would “return you [LAL] net US$6,000,000”, but it was not and did not purport to be the sale itself.[60]Thirdly, an important pointer to the capacity in which Dickinson was acting is contained in paragraph (c) of LAL’s warranties where it was recorded that:
“You [LAL] acknowledge that Dickinson will be relying on the undertakings and warranties you have given in making our own warranties to the [Buyer]”
. The warranties that Dickinson had made to the Buyer were those made in the Sale Agreement, and were made, in part at least, expressly as agent for Accidia. Dickinson was procuring the 9th August Agreement in order to validate the warranties it had already given on behalf of the vendor.[61]In my judgment, therefore, the 9th August Agreement was, much as Mr Martin submitted in reply, an agreement retrospectively authorising Dickinson to sell the Drawing with certain warranties to a specific, but unnamed buyer, and providing for what was to happen to the proceeds of sale. In entering into the 9th August Agreement, Dickinson was acting for itself and protecting its own position, so as to obtain for itself the necessary authority to act for Accidia in the sale it had already concluded. Despite what was said in error as to Dickinson’s capacity in the second paragraph of the 9th August Agreement, Dickinson was not acting as agent for the Buyer in concluding it. Indeed the use of the words “in our capacity as agent for the Buyer” in that paragraph do not even purport to say that Dickinson was acting, in entering into the 9th August Agreement, as agent for the Buyer. What they purport to say is that Dickinson had acted as agent for the Buyer in entering into the Sale Agreement. That was, just as Ms Ward said, a simple error. What she meant to have said was that Dickinson had acted as agent for the seller in entering into the Sale Agreement. The 9th August Agreement was required to provide Dickinson with the authority it needed to have sold the Drawing on Accidia’s behalf.[62]Two final points on the 9th August Agreement:- i) First, it is worth mentioning that Dickinson said in the 9th August Agreement that it had agreed to split anticipated restoration costs and re-framing costs “three ways”. The latter provision points clearly to Ms Luxembourg’s knowledge (as Mr Dickinson’s evidence confirmed he had told her) that another party (intended to be Ms Cohen) was being paid commission over and above the $6 million. ii) Secondly, it is clear that the words saying that Dickinson “duly agree to return [LAL] net $6,000,000” clearly imply, in the context of the 9th August Agreement as a whole, that Dickinson would be receiving a figure in excess of US$6 million for the Drawing from the Buyer, and that it would retain the excess amount. This is supported by the express indication that Dickinson will not be obliged to reveal the identity of the Buyer to LAL. It should be noted, however, that the timing of the 9th August Agreement, coming after the Sale Agreement, means that it could not change what had already happened. The sale by Dickinson as agent for an undisclosed principal, had already gone ahead (subject to the authority issues to which I will turn in a moment), and the most that the 9th August Agreement could affect was Dickinson’s authority to enter into the Sale Agreement and the way in which the proceeds should be dealt with. In the result, the 9th August Agreement confirmed what I have already held to be obvious, namely that LAL and Ms Luxembourg knew that Dickinson was retaining a commission over and above US$6 million.[63]The first question here is as to the scope of the authority that Accidia granted LAL in the LAL Agreement. In essence, Dickinson contends that the LAL Agreement gave Accidia actual or implied actual authority to agree the net return price arrangement contained in the 9th August Agreement. Accidia says that the LAL Agreement expressly prohibits any such arrangement.[64]It is first useful to re-state the nature of actual and implied actual authority. As Diplock LJ said at page 502 in Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd. [1964] 2 QB 480:- “An "actual" authority is a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usages of the trade, or the course of business between the parties. To this agreement the contractor is a stranger; he may be totally ignorant of the existence of any authority on the part of the agent. Nevertheless, if the agent does enter into a contract pursuant to the "actual" authority, it does create contractual rights and liabilities between the principal and the contractor””. See also Lord Denning MR in Hely-Hutchinson v. Brayhead Ltd [1968] 1 QB 549 at page 583: “They [the board of directors] thereby impliedly authorise him [the director] to do all such things as fall within the usual scope of that office”.[65]The primary question, therefore, is whether, on its proper construction, the LAL Agreement provided or implied that LAL could sell or permit another to sell the Drawing under a net return price arrangement like that concluded in the 9th August Agreement. The secondary question, which is probably part of the primary question, is whether the answer is affected if net return price arrangements are usually made by art dealers like LAL and Dickinson.[66]The LAL Agreement provided that LAL would act as Accidia’s sole and exclusive agent to sell the Drawing “for the agreed upon net price to seller of US$5,500,000”, and that LAL would charge a commission on the sale as agreed between Accidia and LAL of up to 10% “to be secured by [LAL] beyond and above the agreed upon net sales price”. Thus, the term “net price to seller” was, in order to make internal sense of the document, net of the commission payable to LAL. That is perhaps why the net price was specified at US$5.5 million and not US$6 million, so as to allow negotiation as to the precise level of LAL’s commission. The LAL Agreement gives no credence to the idea that a net return price arrangement could be authorised or to the concept of an additional commission above the 10% being payable to any other agent of Accidia:- i) LAL is described as LAL’s sole and exclusive agent. ii) LAL is not entitled to delegate its agency without the express consent of the principal, which is not given in the LAL Agreement. iii) The maximum commission Accidia agrees to pay LAL is 10%. iv) The reference to “net price to seller” allows for LAL’s commission on top of the net price, but not for another unspecified commission to a sub-agent. v) The provision of the LAL Agreement that the contract for sale will be between Accidia and the Buyer leaves no possibility of Accidia being unaware of the true sale price, thus supporting the notion that no net return price arrangement with the actual selling price being unknown is authorised. vi) The Drawing is to be held by LAL at the premises of Ms Luxembourg, thus preventing a sub-agent selling since it cannot have possession of the Drawing. vii) Finally, clause 5 says that the LAL Agreement is the full and complete understanding of the parties.[67]Mr Flint does not take issue with much of what I have just said. What he argues is that the LAL Agreement does not bind Dickinson and has nothing to do with Dickinson, and that:- i) The LAL Agreement is silent as to what commissions an agent for the Buyer might be paid. ii) The LAL Agreement does not contemplate or allow for LAL sharing its commission with any third party. iii) The LAL Agreement contains no embargo or prohibition on other commissions being paid to third parties, and in particular on LAL selling the Drawing pursuant to a net return price arrangement for more than US$5.5 million plus the maximum of 10% commission. Moreover, he says that the LAL Agreement authorised LAL to sell at any price so long as US$5.5 million plus LAL’s commission was recovered. In support of this submission, he relies on the contention that net return price arrangements are part of the usual way in which art dealers operate between themselves.[68]Insofar as agents of the Buyer are concerned, I entirely accept Mr Flint’s submission. The LAL Agreement is nowhere concerned to consider or prevent the Buyer paying his agent any commission he chooses. But, as I have held, Dickinson was not acting as an agent for the Buyer, so the point is academic. As for the question of sharing commission, I do not accept Mr Flint’s submission. Mrs Sackler and Ms Luxembourg were both well aware that Dickinson was involved in helping LAL find a buyer for the Drawing. Mrs Sackler thought, quite reasonably, that Dickinson would be remunerated by LAL. Nothing in the LAL Agreement prevents LAL sharing its own commission in any way it chose, and I do not think that the LAL Agreement can be construed as preventing LAL doing whatever it thought necessary with its commission. Moreover, when the 10% commission was originally contemplated between Ms Luxembourg and Mrs Sackler, it was already known, as I have found above, that Dickinson, as an expert in Old Masters, would be involved in assisting Ms Luxembourg to carry out her agency duties in finding a buyer.[69]But it is Mr Flint’s third point that is more fundamental to his case. He suggests that the words “net price to seller” leave open the possibility that a sale is authorised at any price above US$5.5 million plus LAL’s commission. I do not agree that the words give rise to this implication for all the reasons I have already stated. The authorisation in the LAL Agreement is very confined. It is for 6 weeks only, it is to sell at the “agreed upon net price to seller of US$5,500,000” (emphasis added), not at any price above that. And the only commission contemplated is what LAL will charge up to 10%. I will come to the allegedly usual market practice of selling at a ‘net return price’ in a moment, but I do not think the words that are used in the LAL Agreement allow a sale at price greater than US$5.5 million plus LAL’s commission, nor do they allow a sale at a price unknown with another seller’s agent taking a further commission. The mandatory requirement of a contract between Accidia and the Buyer reinforces the embargo on both these possibilities.[70]I turn then to deal with the usual practice of art dealers. Dickinson pleaded its reliance on “common international art market practice”, but was refused permission to call expert evidence on this subject by the Master on 13th September 2010. I have, however, heard both Mr Dickinson and Ms Ward say that the net return price arrangement envisaged by the 9th August Agreement, whereby the agent takes an unspecified commission on top of the ‘return price’ without informing the principal of the amount at which the piece is actually sold, is common practice in the London art market. They qualified this evidence orally by explaining that they, at least, would not normally enter into such an arrangement with an individual seller, but only with a dealer acting as agent for an individual seller.[71]It is well established that an agent can acquire implied actual authority by executing his express authority (e.g. to sell a piece of art work) in accordance with the customs and usages of the market of the particular place, market or business in which he is engaged (see Bowstead and Reynolds on Agency 19th edition 2010 at Article 31 on page 139). But it is equally well established that an agent has no implied authority to act in accordance with any usage or custom that is unreasonable unless the principal had actual notice of that custom or usage at the time when he conferred the authority. The question of whether any custom or usage is unlawful or unreasonable is itself a question of law. Moreover to establish a relevant custom or usage in this context, the person relying upon it must show, in addition, that it is(a) universally accepted by the particular trade or at the particular place(b) certain and(c) not inconsistent with the express terms of the contract of agency.[72]Dickinson does not, however, probably for good reasons, rely upon a custom or usage, but simply on usual practice as I have explained. As to usual authority, Bowstead says this under Article 30 at page 136:
“An agent who is authorised to do any act in the course of his trade, profession or business as an agent has implied authority to do whatever is normally incidental, in the ordinary course of such trade, profession or business, to the execution of his express authority”
. So, the argument runs, LAL was authorised to sell the Drawing by private treaty in the London market, and the usual practice in the London market includes a net return price arrangement of the kind that the 9th August Agreement represents.[73]Dickinson has referred to a pro forma agreement originating from the Society of London Art Dealers, but updated and redrawn by Dickinson providing for a “return price” agency agreement. The crucial clause in that agreement provided as follows:
“We shall offer the Picture for sale with a view to returning £ … net to you. We will communicate to you any reasonable offer for purchase of the Picture received by us although we shall not be obliged to reveal the identity of the purchaser to you”
. Clause 2 of this agreement provided that “Dickinson shall not sell the Painting at a price which after deduction of commission … will leave less than the Minimum Price as specified …”, and clause 6 included:
“the net proceeds shall be the sale price less all charges due to Dickinson in respect of insurance, collection and delivery, restoration, framing and otherwise …”
. I suggested in argument that this agreement might be void for uncertainty since it did not make clear what “commission” might be deducted. But more importantly perhaps, the pro forma does not support the practice relied upon by Dickinson, since it provides for Dickinson to “communicate to [the principal or his agent] any reasonable offer for purchase of the Picture received by us”. Thus the premise of the agreement is that the principal does know both the price at which the Picture is ultimately to be sold and the commission charged by Dickinson, not, as suggested in evidence by Mr Dickinson and Ms Ward, that the principal does not know that ultimate sale price.[74]Moreover, whilst I accept Mr Dickinson’s evidence that he has entered into net return price arrangements with other dealers, without telling them the price at which he was actually selling, I do not think any such arrangement is common or usual, certainly not when an individual owner is the ultimate seller. That is because no client seller, who is outside the closed circle of the market, would have the relationship of trust necessary to allow him or her to agree that Dickinson could sell at any price he chose without disclosing that price. Indeed, Mr Dickinson himself said that even the practice with other dealers did not give him carte blanche to charge whatever he chose. He could only take what he judged to be a fair and reasonable commission. If he sold at a price that gave him more than that, he would feel himself duty bound to tell the selling dealer.[75]I am, therefore, not satisfied that any custom or practice exists whereby art dealers agree with principals or their agents for a return price on the basis that the dealer may sell the piece at any price without informing the principal or his agent of that ultimate price or of the level of commission the dealer thereby receives after passing on only the return price. Such arrangements may exceptionally have occurred, but they cannot be described on the evidence I have heard as usual practice or the way in which valuable paintings are usually sold, even dealer to dealer, in the London art market. Moreover, such arrangements would be objectionable as being unreasonable and unlawful, unless they were concluded with the fully informed consent of the principal seller or the dealer accounted to that principal for the secret profit secured.[76]Mr Flint also relied on the fact that Accidia knew that Dickinson had been instructed to find a buyer, and must have known or assumed, through Mrs Sackler, that Dickinson would have required a commission in addition to LAL’s maximum of 10%. As it seems to me, this point fails on the evidence. Mrs Sackler did indeed know, as was the case, that Mr Dickinson had been engaged to help Ms Luxembourg find a buyer from very early on, but Mrs Sackler expected, as I have said, that Dickinson would be paid from LAL’s commission.[77]Coming back then to the question of whether LAL had actual or implied actual authority to enter into the 9th August Agreement, I do not think it had. A net return price arrangement would only have been acceptable usual practice if LAL (and Accidia) were being told the ultimate price, but more importantly the LAL Agreement on its proper construction was prescriptive as to how this sale was to occur, and its terms are, in my judgment, inconsistent with LAL being authorised to enter into any net return price arrangement for the sale of the Drawing without the consent of Accidia.[78]I return finally to the point I noted earlier about Ms Luxembourg’s role in drafting the LAL Agreement. It seems to me that Ms Luxembourg failed to draft an agreement that gave her authority to enter into the kind of arrangement she envisaged with Dickinson. She did not tell Mrs Sackler how Dickinson was being paid. Mrs Sackler reasonably assumed that Ms Luxembourg would share her commission with Dickinson. And Ms Luxembourg failed to draft an agreement that protected her most unattractive position. It might be reasonable to think that Ms Luxembourg knew that Mrs Sackler would not have agreed to Dickinson keeping the ultimate price a secret, but hoped the form of words she used would protect her. In my judgment, properly construed against the relevant factual matrix known to both parties, they did not.[79]On the second day of the trial, Accidia amended its defence to plead the following in relation to ratification of the Sale Agreement:- “Accidia has however ratified the sale by accepting payment from LAL, knowing that it represented the proceeds of sale of the Drawing ; by retaining such payment, knowing that [Dickinson] had made the Sale Agreement purporting to act “as Agent for the Owner”; and/or by resisting [Dickinson’s] efforts to persuade it to rescind the sale in April/May 2008; and/or by electing to claim from [Dickinson] an account of the proceeds of sale, thereby affirming the Sale Agreement, rather than seeking to recover the Drawing from the Buyer or from Dickinson” (amendments in bold).[80]Bowstead’s Article 17 states that “Ratification will be implied whenever the conduct of the person in whose name or on whose behalf the act or transaction is done or entered into is such as to amount to clear evidence that he adopts or recognises such act or transaction; and may be implied from mere acquiescence or inactivity of the principal”, and that “the adoption of part of a transaction operates as a ratification of the whole”. The commentary includes the following: “So also receipt or retention of money with knowledge of the circumstances of a contract under which it is paid will normally constitute ratification of that contract”.[81]Dickinson contends that Accidia’s conduct was equivocal once it found out about the Sale Agreement, and that it never ratified it, but even if it did, it could only ratify it with its burdens, namely the 9th August Agreement. It is not open to Accidia, submits Mr Flint, to take the benefit of the US$7 million contract without the burden of the obligation to pay Dickinson a commission. I shall deal with this latter point under the next issue.[82]As for ratification of the Sale Contract, it seems to me obvious that it was ratified by 17th June 2008 when, with Accidia’s knowledge and acquiescence, Dickinson bought back the Drawing from the Buyer. Plainly, Accidia did not ratify the Sale Agreement at the 24th April 2008 meeting, because the notes of that meeting (made by Ms Berger and Ms Ward) make clear that that meeting terminated with Ms Sackler agreeing to go back to the trustees of Accidia to ask them if they would cancel the sale and take back the Drawing. But thereafter, Accidia did nothing to indicate that it would return the price. I was not shown an extensive ‘without prejudice’ correspondence that ensued between 24th April and 17th June 2008, but the conclusion was that Accidia unequivocally kept the purchase price and Dickinson acted on Accidia’s refusal to cancel the Sale Agreement by buying the Drawing back. At that point, all parties must have understood that Accidia had ratified the Sale Agreement, accepting and indeed asserting that the Buyer was the Drawing’s true owner.[83]I cannot determine, and indeed it does not matter, when precisely Accidia’s ratification took place. Suffice it to say that it took place between 25th April and 17th June 2008, when Accidia retained the proceeds of sale and refused to return the purchase price or take back the Drawing. On 9th May 2008, shortly after the start of that period, Accidia was sent for the first time a copy of the 9th August Agreement. I turn now to decide whether ratification of the Sale Agreement necessarily involved ratification of the 9th August Agreement.[84]This issue is less difficult than at first appeared, because of Mr Martin’s discovery of the Court of Appeal’s decision in Hughes v. Hughes [1972] EGD 145, where it was held that a wife who had objected to the agents her husband had instructed to sell their joint property did not ratify the payment of their agent’s fee, when she ratified the sale of the house to a buyer they had introduced. Cairns LJ (concurring with Lord Denning MR, and with whom Roskill LJ also agreed) explained the point as follows:- “An interesting argument was presented by Mr. Englehart fortified by reference to the case of Keay v. Fenwick [(1876) 1 CPD 745]. It appears to me that it would be a very extraordinary situation if it were the law that a woman who had had nothing to do with the instructing of estate agents about the sale of a house of which she was part owner, and who when she heard that the estate agents had been instructed immediately told them that they had no authority to act on her behalf, nevertheless should become liable for commission because the estate agents had in fact introduced a purchaser and in the end she was party to a sale to that person. At the time when she was considering whether or not to sell to the proposed purchaser for £4,000, it seems to me it would be quite wrong that she should be put in the dilemma that she should either have to decline to enter into an advantageous sale or else have to make herself liable for commission to a person whom she never wished to employ. I have therefore anxiously looked at the case of Keay v. Fenwick to see whether it would force this court to a conclusion at which I should be reluctant to arrive. For the reasons which my Lord has given I am satisfied that Keay v. Fenwick is clearly distinguishable from the present case, and that therefore this appeal in relation to the estate agent's commission also fails”.[85]This dictum reflects precisely the situation in this case. It would be absurd if Dickinson could force Accidia into a position where it could only complain about the commission secretly taken by Dickinson if it also ratified the agreement its agent made to allow such a commission. The principle that requires ratification of the whole, rather than just part, of a transaction does not demand this conclusion. The Sale Agreement was the transaction that Accidia deliberately ratified by keeping the proceeds of sale. It cannot be taken to have ratified the 9th August Agreement that was made without its consent, and allowed a secret commission to be retained by Dickinson which it had neither authorised nor approved.[86]Accordingly, in my judgment, Accidia did not ratify the 9th August Agreement.[87]Accidia has always relied upon the principles that an agent is liable to account to his principal for the full price received, must not profit from his position as agent except with his principal’s consent, and that an agent is not entitled to retain a secret commission or profit. These principles are undoubted, but would not apply here if LAL had had actual or implied actual authority to enter into the net return price agreement that LAL made with Dickinson.[88]As I have already held, however, LAL had no authority to enter into the 9th August Agreement or to enter into any such net return price agreement with Dickinson, let alone one in which Dickinson was entitled to keep the ultimate sales price and its rate of commission secret from LAL and Accidia.[89]In these circumstances, it follows that Dickinson must account to Accidia for the profit it made on the sale.[90]In Imageview Management Ltd v. Jack [2009] 2 All ER 666, the Court of Appeal considered the circumstances in which a just allowance should be made for the fiduciary’s skill and effort in obtaining the profit which he had to disgorge. Jacob LJ (with whom Dyson and Mummery LJJ agreed) said this at paragraphs 56-59:
“[56]Snell,at para 7-131, also sets out the general rules about when an allowance for skill and effort will be made: “A fiduciary who has acted in breach of fiduciary duty and against whom an account of profits is ordered, may nevertheless be given an allowance for skill and effort in obtaining the profit which he has to disgorge where 'it would be inequitable now for the beneficiaries to step in and take the profit without paying for the skill and labour which has produced it.' [The quotation is from the judgment of Wilberforce J in Phipps v. Boardman [1964] 1 WLR 993 at p 1018]. This power is exercised sparingly, out of concern not to encourage fiduciaries to act in breach of fiduciary duty. It will not likely be used where the fiduciary has been involved in surreptitious dealing . . ., although strictly speaking it is not ruled out simply because the fiduciary can be criticised in the circumstances. The fiduciary bears the onus of convincing the court that an accounting of his or her entire profits is inappropriate in the circumstances ….” [57] Mr Lopian did not contest any of this. In his skeleton argument he took us to O'Sullivan v Management Agency etc[1985] QB 428, [1985] 3 All ER 351, [1984] 3 WLR 448 where Fox LJ said at p 468: “Nor do I think that the principle [of making an allowance] is only applicable in cases where the conduct of the fiduciary cannot be criticised. I think the justice of the individual case must be considered on the facts of that case.”
Mr Lopian particularly relied on the last sentence. But Fox LJ went on to say “Accordingly, where there has been dishonesty or surreptitious dealing, or other improper conduct . . . it might be appropriate to refuse relief; but that will depend on all the circumstances.” The present case is, of course, one of surreptitious dealing. [58] Mr Lopian also took us to Murad v Al-Saraj[2005] EWCA Civ 959 for the warning of the High Court of Australia in Warman v Dwyer(1995) 182 CLR 544, 128 ALR 201 that the remedy of an account should not be allowed to become a vehicle for the unjust enrichment of the Plaintiff. [59] Mr Lopian submitted that the work done in getting the work permit was of benefit to Mr Jack. It was this circumstance which meant that Imageview should be given credit for the work done. But, as Underhill J pointed out, the work involved was never anything Mr Jack was expecting to pay for. …”[91]I have therefore to consider whether Dickinson has been guilty of surreptitious dealing and whether it would be inequitable for Accidia to step in and take the US$1 million that Dickinson’s skill and effort has undoubtedly produced.[92]It was argued, as I have said, for Accidia that Dickinson’s conduct was worthy of serious censure, and that it behaved surreptitiously and disreputably. I do not think it did. Mr Dickinson and Ms Ward were entitled to assume that Ms Luxembourg would have explained the deal they had made to her client, when it turned out that she had not. She was, to Dickinson’s knowledge, the primary if not the only sales agent. It is true that Dickinson would have been well advised to take specific steps to ensure that the ultimate seller understood the net return price arrangement that it had agreed with Ms Luxembourg. The fact that it did not was unwise, because it meant that it was personally exposed in the way that this litigation has demonstrated. But I do not think it means that Dickinson behaved surreptitiously in the way envisaged by Snell and Jacob LJ.[93]The fact that Dickinson did not behave surreptitiously does not, however, mean that it is automatically entitled to be remunerated. Here, Accidia agreed strict terms for LAL’s sole and exclusive agency, and Mr Martin argues that the court should not order any remuneration beyond the 10% envisaged as the maximum by the LAL Agreement. Conversely, Mr Flint submits that the LAL Agreement was nothing to do with Dickinson and that his client is entitled to proper remuneration for the valuable services it rendered without which this advantageous deal would, in all probability, never have happened.[94]It seems to me that it would be inequitable to allow Accidia to recover the entirety of the US$1 million without paying anything for Dickinson’s services. But it would also be inappropriate and unjust to allow Dickinson to keep the entirety of the US$1 million, when it did not negotiate and agree any fee, and it knew, despite some extraordinary denials by Ms Ward in evidence, that it was acting as Accidia’s agent in locating a buyer for the Drawing, and in entering into the Sale Agreement. It could and should have done more to make sure that Accidia understood the less than usual arrangement it had reached with Ms Luxembourg, though I do not assume against Dickinson that it did not reasonably expect Ms Luxembourg properly to report to Accidia.[95]Taking all these matters into account, together with my findings on the evidence, it would be just and equitable, in my judgment for Accidia to pay what it would have paid had it known that Dickinson had achieved US$7 million for the Drawing. One cannot be sure, of course, what precisely would have been negotiated (particularly as Mr Flint did not cross-examine Mrs Sackler on this point), but I have formed the view on the evidence I have heard that Accidia would have been unwilling to pay more than one commission of 10% of the gross sale price. Moreover that seems to me to be the usual kind of figure that is expected in this market. Certainly it was close to the figure that the experienced Ms Luxembourg negotiated. Had Accidia been informed of the sale price of US$7 million, I would expect that Mrs Sackler would have told Ms Luxembourg that Accidia would pay 10%, but that that fee should be split with Dickinson however they thought appropriate. That seems to be how Mrs Sackler was thinking since she negotiated the LAL Agreement as an exclusive agency Agreement with such a commission payable at a time when she knew Dickinson had found the Buyer. The fact that LAL and Ms Luxembourg have, for reasons that have not been explained to me, not been brought before the Court by either party, cannot affect this determination. Thus, I think that Accidia should, in justice and equity, pay a commission of 10% of US$7 million, namely US$700,000. In this respect, I disregard the possible ambiguity in the LAL Agreement as to whether the 10% maximum was to be net or gross. Thus, I value the just sum which Dickinson may deduct, when accounting for the US$1 million for its own services at US$200,000, taking into account the commission of US$500,000 already paid to LAL.[96]Whilst I accept that Mr Dickinson told Ms Luxembourg about a further commission he would have to pay (without specifically mentioning Ms Cohen), I do not accept that the commissions paid to her or Ms Besiaux can be deducted. I do not accept that all Dickinson’s out of pocket expenses can be allowed as pleaded. The sum of £12,687.50 for framing and insurance should not be deducted because Ms Luxembourg agreed in the LAL Agreement to pay expenses. Whilst that did not expressly include framing, I think the agents would have had to pay that, as between them and Accidia, even if the commission arrangement had been negotiated, since that became part of the deal with the Buyer. Accidia would not therefore have agreed to pay these expenses had it been asked. But Dickinson can claim to deduct the £2,500 paid for restoration which Accidia was obliged to pay under clause 3 of the Sale Agreement it ratified.[97]There remains only the question of compound interest. When a fiduciary is required to account, compound interest is normally awarded, and I will order that Dickinson reimburses Accidia with US$800,000 less £2,500, plus compound interest from 10th August 2007. I will hear counsel on the rates of exchange and the rates of interest, and the appropriate rests for that interest, and as to costs, if these matters cannot be agreed.

Conclusion

[98]In the result, Accidia has, for the reasons I have given succeeded in its claim that Dickinson should account for the US$1 million profit it made as Accidia’s agent and fiduciary on the sale of the Drawing, subject to the just allowance that I have determined for its services in the sum of US$200,000 plus £2,500. There will be judgment accordingly for Accidia.

Cited in 3 later judgments