Kamidian v Holt & Ors [2008] EWHC 1483 (Comm)

[2008] EWHC 1483 (Comm)Case No 2006 Folio 654
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 July 2008
Before
THE HON. MR JUSTICE TOMLINSON
Between
MICHEL KAMIDIANClaimant(1) ANTHONY WAREHAM HOLTDefendants(2) ALEXANDER VON SOLODKOFFDefendant(3) ERMITAGE LIMITEDDefendant(4) GEZA VON HABSBURGDefendant(5) BROUGHTON INTERNATIONAL INC.Defendant
Alison Padfield (instructed by Messrs ELS) for ClaimantAndrew Neish (instructed by Messrs Ince & Co) for First DefendantJohn Kimbell (instructed by Messrs Pritchard Englefield) for Second DefendantThe Third Defendant was not served with proceedingsRaymond Davern (instructed by Messrs De Cruz) for Fourth Defendant for The Fifth Defendant does not appear and is not representedHearing Hearing dates: 21,22,23,24,28,29,30,31 January; 4,5,6,11,12 February 2008
Judgment

Introduction

[1]The creations of Carl Fabergé are well known and highly prized. Foremost amongst such creations are “Fabergé Eggs”. Carl Fabergé was born in 1846 in St Petersburg of Huguenot descent. He succeeded his father as a jeweller and manufacturer of objets d’art. Regarded by many as a designer of unsurpassed ingenuity and delicacy, he became a prolific supplier to the royal houses of Europe. Central to his fame is the creation of the so-called Imperial Easter Eggs, the first of which was created in his workshops in 1884 or 1885 for Tsar Alexander III who presented it to the Tsarina, Maria Feodorovna. Thus began a tradition of Imperial Easter gifts by the Tsar to his wife, a tradition continued after the death of Tsar Alexander by his son Tsar Nicholas II. Tsar Nicholas not only bestowed an annual Easter gift upon his Tsarina, Alexandra Feodorovna, but also dutifully presented his mother, the Dowager Empress, with an annual Easter Egg created by Fabergé. An Easter Egg given by the Tsar either to his wife or to his mother is uncontroversially described as an Imperial Easter Egg. Opinions vary as to how many such eggs were created in the Fabergé workshops, but there were probably not more than fifty, not all of which survive. It is generally accepted that there is another category of Easter eggs created by Fabergé which should be regarded as of similar quality although lacking the cachet of having been created to be an Easter gift by the Tsar to his wife or mother. Into that category falls the collection of seven “Kelch” (or Kelkh) eggs made for the family of that name, successful merchants in Russia. Another such egg is the so-called Duchess of Marlborough Egg, acquired by the Duchess (née Consuelo Vanderbilt) during her visit to St Petersburg in 1902. As recently as 28 November 2007 there was auctioned at Christie’s in London the “Rothschild Egg” which would by common consent be placed into the same category of non-Imperial Eggs of Imperial quality. The Rothschild Egg is generally regarded as being of impeccable provenance, including not just relevant markings but also a surviving photograph of it apparently under construction in the workshop of the celebrated Fabergé workmaster Mikhail Perchin.[2]This case concerns another object which it is alleged by the Claimant should be placed into the same category of Imperial quality, the so-called Dr Metzger Egg Clock. The context is however prosaic and more familiar to this court than is the world of fine art. A claim is made against insurers and those alleged to have been bailees of the egg clock in respect of damage caused whilst the egg clock was in transit between Europe and the USA for the purpose of being shown at an exhibition in Wilmington, Delaware. That exhibition opened as long ago as September 2000, closing in February 2001. By the end of March 2001 the damaged egg clock was back in London in the custody of its alleged owner, the Claimant in this action. One of the many curiosities of this extraordinary case is that this artefact, which is on any view of a contemporary value of £100,000 or so even if not of the pedigree claimed, has remained unrepaired in a safe deposit ever since.[3]The Claimant, Michel Kamidian, is an art collector and dealer. He was born in Armenia in the former USSR, acquiring the French nationality of his father. He was educated in the USSR before studying Russian philosophy at the Sorbonne. He now lives in or near Paris from where he conducts his dealing activities. He has a life-long interest in items manufactured in the workshops of Carl Fabergé.[4]In November 1991 Mr Kamidian was involved in the purchase at auction at Sotheby’s, Geneva, of a nephrite and silver gilt mantle clock, to which I shall refer hereafter as the “Dr Metzger Egg Clock”. It was Lot No. 394. The description in the Sotheby’s Sale Catalogue was:
“394 A TIMEPIECE retailed by Fabergé, unmarked, probably St Petersburg, the movement signed: ‘Hy. Moser & Co., St Petersburg’, late 19th century the urn-shaped nephrite body with two-coloured gilt-metal mounts, the opaque white enamel dial band with blue enamel Roman numerals, the hours indicated by the head of a snake, resting on a tapering base within snake-entwined branches terminating in elaborate scrolls, surmounted by a bouquet of lilies, the rim of the vase as a cluster of roses, the rectangular nephrite stand applied with gilt classical scrolls, on stepped plinth height 29cm. in original fitted wood case, the silk interior stamped with the Imperial warrant and inscribed: ‘K. Fabergé. St Petersburg, Moscow’, the paper lining in the wood case underneath the later frame with blind stamp: ‘K. Fabergé, St Petersburg, Moscow’, below the Imperial warrant. Provenance Presented by the Dowager Empress Maria Feodorovna to Dr Johann Georg Metzger. Dr Metzger (1838-1909), a Dutch doctor specialising in therapeutic gymnastics and famed for his use of massage treatment, was summoned by Emperor Alexander III to St. Petersburg and arrived there on April 2nd, 1886 to treat the Imperial Consort. On 26th May of the same year Dr Metzger was awarded the Order of St. Stanislaus for his services. Early in 1892 he was again called to St. Petersburg to treat the back injury of Grand Duchess Olga Alexandrovna who had been hurt in the ‘Borki railway disaster’: on 29 October 1888 the Imperial train had been travelling to Kharkov in the Caucasus when two explosions severely damaged the carriages. Emperor Alexander II (sic) escaped first from the crushed dining car and held up the heavy iron roof which had collapsed to release the children and the Empress. During his second visit Dr Metzger was presented with this clock and he later received the Order of St. Stanislaus First Class with diamonds, in addition to an honorarium of 1400 marks. Dr Metzger’s other patients included the Empress of Austria, Empress Eugenie of France, the Duke of Nassau and the Duchess of Saxe-Coburg-Gotha. For a detailed description of his life and work, see Exhibition Catalogue, Dr Johann Georg Metzger 1838-1909 en zign tijd, Leiden, 1978, and Grote Winkler Prins Encyclopedie, Amsterdam, 1971, deel 13. Photocopies of documents relevant to Dr Metzger are available with this lot. This clock is close in design and size to the Imperial Egg presented to the Empress Alexandra Feodorovna in 1899 and called the ‘Madonna Lily Egg’. Made by the Fabergé workmaster M. Perchin it is now at the Armoury Museum of the Kremlin in Moscow, see G. Hill, Fabergé and the Russian Master Goldsmiths, New York, 1989, plate 33. SF25,000-35,000”
As appears above, the price estimated by Sotheby’s and noted in the catalogue was SF25,000-35,000. It is common ground that that is not a price consistent with what would have been commanded by a piece generally recognised to be by Fabergé. The Sotheby’s description bestows that accolade only upon the wooden case, not upon the timepiece itself, although one is left to wonder whether Sotheby’s intended their description of the case to be read as referring to “the” original fitted wood case or rather to “an” original fitted wood case, an uncertainty which I do not find entirely resolved by the use of the word “fitted” although Ms Alison Padfield, counsel for Mr Kamidian, suggested that it should be regarded as conclusive in favour of the former rather than the latter meaning. The piece was knocked down for SF148,500, obviously a price considerably in excess of Sotheby’s estimate. SF148,500 was then equivalent to about US$105,000. Mr Kamidian says that it was obvious to him from the moment he saw the clock that it was a genuine Fabergé piece and that Sotheby’s had made a mistake in failing to attribute it appropriately. The trial proceeded upon the assumption that Mr Kamidian was the successful bidder in the room, and on re-reading Mr Kamidian’s evidence I think that this is what he intended to convey by his evidence that “I was in the – in this sale, I bought this piece. So everybody saw that I bought this piece”. Mr Kamidian says that at the time he acquired only a half share in the Dr Metzger Egg Clock, since he made the purchase as to 50% on behalf of another, who in turn possibly represented yet others. Mr Kamidian says that he acquired full ownership in 1998 by buying out the then owner of the second half share for US$145,000. Again, US$145,000 falls very far short of what would in 1998 have been 50% of the value of an egg clock generally recognised as having been created in the Fabergé workshops. A TIMEPIECE

Provenance

[5]The Fifth Defendant, Broughton International Inc., to which I shall refer hereafter as “Broughton”, is or certainly was in 2000/01 a company incorporated in Florida. It has aptly been described as a “for profit arts organisation”. One of its activities at that time was the organisation, on a commercial basis, of large scale art exhibitions. It organised “The World of Fabergé” exhibition held at the Riverfront Arts Center in Wilmington, Delaware in 2000 and 2001 to which I have already referred. It is common practice for collections and collectors to lend pieces free of charge for display at such exhibitions. So common are art loans of this type that a whole chapter is devoted thereto by Professors Norman Palmer and Ewan McKendrick in their work “Interests in Goods”, Second Edition 1998. I hesitate to describe such an arrangement as a gratuitous loan because that begs a question, much debated, as to the generation of an expected benefit constituting consideration. It is accepted that one advantage possibly to be derived from the loan of a piece for exhibition is the achievement of wider publicity for the piece which may well bring with it either an increased acceptance of a hitherto doubtful provenance or an enhancement in the realisable price or, of course, both. Naturally for some lenders such considerations will be of little moment. There were over one thousand items on display at the Wilmington exhibition, although for the loan of some a fee was paid, for example for those from the Forbes Collection. Twenty-one or twenty-two items, including the Dr Metzger Egg Clock, were lent by Mr Kamidian to the exhibition. For this purpose they had to be transported from London to Wilmington and then returned at the end of the exhibition. It is usual, where artefacts are lent for this purpose, for the borrower to arrange at its expense packing and shipment of the objects and also appropriate insurance against the risk of loss or damage. Ordinarily this will be done pursuant to a formal Loan Agreement in writing.[6]At page 528 of the work of Professors Palmer and McKendrick to which I have just referred there appears the following passage:
“No observer, schooled in the adversarial rites of the common law, can fail to be impressed by the village atmosphere in which art loans are conducted, by the sense of common purpose and by the prevalence of trust and good will.”
I have tried to bear this observation in mind in evaluating the evidence in this case. It certainly supplies a partial explanation for some of the unbusinesslike arrangements about which the court was told.[7]It is common ground that the Dr Metzger Egg Clock was at all material times, i.e. from 17 July 2000 until 27 March 2001, covered by a Fine Art Exhibition All Risks Insurance policy to which the First Defendant, a representative underwriter, subscribed. It was a valued policy. The value attributed to the items from the Kamidian Collection was US$3,831,000. Of this sum, it is common ground that US$2.5 million was attributed to the Dr Metzger Egg Clock. Of the balance, US$700,000 was attributed to a hardstone parrot said to be by Denisov-Uralski which was at a late stage withdrawn from the items lent to the exhibition and never therefore travelled or came on risk. I mention this since(a) the parrot plays a significant part in the story and(b) it demonstrates that the value attributed to the Dr Metzger Egg Clock was by far the greatest part of the overall value attributed to items from the Kamidian Collection.[8]The “Director of Academic and Curatorial Affairs” at Broughton was Dr Robert Bianchi. He was the Curator in overall charge of the exhibition. It is however customary for the organisers of such exhibitions to employ as “Guest Curators” persons of standing in the particular subject matter of the exhibition. This exhibition was no exception. Pursuant to a “Consulting Agreement” dated 1 December 1998 the Fourth Defendant, Archduke Dr Geza von Habsburg, was retained as Chief Curator. I intend the Fourth Defendant no disrespect by continuing in this judgment the convention adopted at trial of referring to him as Dr von Habsburg, the title which he himself customarily uses. Dr von Habsburg is acknowledged amongst the cognoscenti to be an authoritative voice in the world of fine art in general and of Fabergé in particular. Dr von Habsburg had various duties under the agreement one of which was to “arrange for the collaboration and assistance of Alexander von Solodkoff who shall be compensated by Broughton as defined in Paragraph 6 below”. Thus it was that the Second Defendant, Mr von Solodkoff, became the guest “co-curator”. The responsibilities of Mr von Solodkoff were set out in a short fax message from Dr von Habsburg sent on 21 January 1999. One of his responsibilities was to arrange loans chiefly from Germany but also from clients of the Third Defendant, Ermitage Limited. Ermitage Limited was an English company of which Mr von Solodkoff was a Director but which no longer exists, having been dissolved in 2006. It has accordingly not been served with these proceedings. Ermitage appears to have had no relevant involvement but the responsibility of Mr von Solodkoff seems to have extended to arranging loans from European collections or collectors. Mr von Solodkoff is an art historian with a particular interest in the work of Carl Fabergé. Again, he is recognised and respected by the cognoscenti as an expert in the field. In 1979 Dr von Habsburg and Mr von Solodkoff co-authored “Fabergé, Court Jeweler (sic) to the Tsars” published in the English translation version in New York by Rizzoli, a work of acknowledged scholarship with a foreword contributed by Kenneth Snowman, a noted English authority associated with the house of Wartski.

Mr Kamidian becomes involved in the Wilmington Exhibition

[9]It was as a result of a chance meeting in the summer of 1999 between Mr Kamidian and Mr von Solodkoff, who already knew each other, that Mr Kamidian came to participate in the Wilmington exhibition. There is no suggestion that Mr Kamidian sought out Mr von Solodkoff for this purpose. Following initial discussions between Mr von Solodkoff and Mr Kamidian, a further meeting took place in Paris, probably on 14 or 15 December 1999, attended this time also by Dr von Habsburg. The meeting took place in a bank, probably in or close to the Place de la Madeleine, in the vault of which Mr Kamidian at that time stored various items, one of which was the Dr Metzger Egg Clock. During this meeting a list of exhibits to be lent by Mr Kamidian for display at the exhibition was agreed, Dr von Habsburg having the ultimate power of choice. The list agreed included the Dr Metzger Egg Clock.[10]In due course on 31 March 2000 Mr Kamidian delivered the items or at any rate most of them and in particular the Dr Metzger Egg Clock to Mr von Solodkoff in London. They met for this purpose at the London Safe Deposit in Lower Regent Street, a venue suggested by Mr von Solodkoff who knew it to have appropriate facilities for the safe storage of antique items.

The egg clock is sent to the USA

[11]The items including the Dr Metzger Egg Clock remained at the London Safe Deposit until 26 July 2000. Broughton instructed their US transport agents, Alexander International, to arrange the packing and carriage to Wilmington of items then in London. Alexander in turn appointed Messrs Constantine, Wingate & Johnston, to whom I shall refer hereafter as “Constantine”. Constantine are recognised as professional packers and transporters of fine art. On 26 July 2000 representatives of Constantine met Mr von Solodkoff at the London Safe Deposit. They collected the items whose loan had been arranged through Mr von Solodkoff as intermediary and which were then in safe storage at Lower Regent Street. They took the items, including the Dr Metzger Egg Clock, to their own security warehouse in Queen’s Road. Mr von Solodkoff accompanied the items to Queen’s Road. Somewhat unwillingly Mr von Solodkoff prepared condition reports describing the condition of the items on their arrival at Queen’s Road. He was unwilling because this was not part of his prescribed responsibilities for which he was paid only a modest fee – US$12,000. He did so nonetheless at Dr von Habsburg’s request. Six months after the end of the exhibition Mr von Solodkoff received from Constantine a package containing the Condition Reports and photographs of every item the loan of which he had arranged, save only for the Dr Metzger Egg clock. A copy of the Condition Reports, both as executed by Mr von Solodkoff and as subsequently annotated by Dr Bianchi, has been recovered, but not the photograph taken on 26 July 2000.[12]The Condition Report completed by Mr von Solodkoff for the Egg Clock and case stated:
“Nephrite on base ‘cloudy’, flowers bent white enamel scratched/wooden case torn, lining damaged.”
By “bent” Mr von Solodkoff did not mean to imply that the flowers or the stems to which they were attached were damaged, rather that the stems were curved in appearance. Polaroid photographs of the items were taken by Constantine. Mr von Solodkoff did not keep copies of the Condition Report or of the photographs. It seems likely that the originals travelled with the items to Wilmington.[13]Mr von Solodkoff did not discuss the packing of the items with Constantine in other than general terms. Constantine are acknowledged experts in their field.[14]The clock was at this stage in its wooden case, a brief description of which is at paragraph 4 above. Although controversial, it is to my mind obvious that the box, which I have seen, is unlikely to have been designed in its original construction to contain the Dr Metzger Egg Clock. Indeed it is obvious that this box has itself been the subject of a modification. The exposed raised wooden block on the base has been altered and recessed in order the better to accommodate the clock. This inner base was not at the material time securely fixed into the bottom of the box, allowing the clock to move upwards within the box. Plastic anchors used in an attempt to overcome this problem were ineffective. The vertical padding to each side of the case was insufficient to provide support to the clock and to prevent it rocking from side to side. However for the purpose of transit to the USA a particular problem was presented by the bouquet of flowers which surmounts the piece. The packing adopted consisted of wrapping the top part of the clock in tissue paper and replacing it in its box. It is agreed between the packing experts instructed on the opposing sides in this action that this method of packing meant that the petals were likely to be crushed once the box was closed. It is agreed that the clock should not have been transported in its own wooden presentation box.

Discovery of damage to the egg clock (1)

[15]Upon unpacking at Wilmington it was found that a bud on one of the floral branches at the top of the clock had broken off. Although this too is controversial, I find that this bud had been in place when Mr von Solodkoff last saw the clock at Queen’s Road. The experts were agreed that the only reason why the damage was not worse on the outward journey was because Constantine did put the presentation box into a large airfreight crate along with other pieces, thereby lessening the movement of the clock within the presentation box.[16]The exhibition opened on 9 September 2000 and included the Dr Metzger Egg Clock in its damaged and unrepaired condition. It was in a glass case. Mr Kamidian attended the opening of the exhibition. He did not notice that one bud was missing from the Dr Metzger Egg Clock and no-one told him about the occurrence of the damage. At least Dr Bianchi, Dr von Habsburg and Mr von Solodkoff, all of whom were also present at the opening of the exhibition, were aware of the damage. Dr Bianchi and Dr von Habsburg had seen the damage and discussed it but Dr von Habsburg and probably Dr Bianchi might well not have recognised Mr Kamidian at the exhibition. Mr von Solodkoff had not seen the damage for himself although he was told about it over the telephone by Dr von Habsburg before the exhibition opened. Mr von Solodkoff knew that Mr Kamidian was present at the opening of the exhibition and he would have recognised him had he seen him. He did not seek him out to tell him about the damage. For reasons upon which I will elaborate in due course I think that as a result of his dealings with Mr Kamidian, and the view he had formed about him, Mr von Solodkoff would have been unlikely to have sought out Mr Kamidian’s company. There were between 500 to 800 people present at the opening. Mr von Solodkoff had had neither the time nor, apparently, the inclination, to inspect the damage to the Dr Metzger Egg Clock for himself in the light of the information he had received. Dr von Habsburg had already given it to him as his opinion that the depreciation caused by the parting of the bud could not be more than of the order of 5%. The damage was capable of a relatively straightforward repair. Mr von Solodkoff did not see it as his responsibility either to check the condition of the piece or to discuss it with Mr Kamidian. However Mr von Solodkoff was wholly unaware that no-one had yet told Mr Kamidian about the damage and he could fairly have assumed that at the very least Broughton and possibly Dr von Habsburg would by now have done so. In fact it was only ten days later on 19 September 2000 that Dr Bianchi wrote to Mr Kamidian to tell him of the damage.[17]A claim was notified under the insurance on 18 October 2000. Insurers appointed Nicole Sheley, hereinafter “Ms Sheley” of Messrs Crawford Technical Services in New York as loss adjusters. Ms Sheley liaised with Mr Kamidian and looked into the question of restoration. She herself reported, in due course, on 13 March 2001:
“Interestingly, when viewing the clock, you cannot actually tell that there is a bud broken off, aesthetically the clock looks fine. It took one restorer about twenty minutes just to locate the damage.”
That restorer was a Ms Carol Aiken, a conservator from Baltimore. She quoted for restoration. She expected that it would take not longer than one day of her work, which was charged at US$700 per day plus expenses. She advocated the use of a small, and ultimately invisible, wire dowel and adhesive rather than solder, since the application of heat could melt original materials or change their colour.[18]Mr Kamidian had agreed that the clock should be looked at by a restorer. He was however anxious that depreciation should be agreed before restoration. Ms Sheley explained that underwriters would not assess depreciation prior to restoration. At some stage Mr Kamidian became aware of Dr von Habsburg’s assessment that depreciation would not be more than of the order of 5%. He was unhappy with this assessment and it may be that it was in the light thereof that he ultimately decided that he wished the clock to be returned to London in its unrepaired state.[19]In the course of these discussions Ms Sheley spoke to Dr von Habsburg. She recorded in a contemporaneous note of her discussions with him that the Dr Metzger Egg Clock was a “controversial piece”. In the course of these discussions Dr von Habsburg indicated to Ms Sheley that, although he and Mr von Solodkoff had thought that the clock was of a sufficient quality to be in the exhibition, they had debated the clock’s attribution as being by Fabergé as they felt that it was “not quite right” and that the piece was not of the calibre expected of a Fabergé item. Dr von Habsburg said words to the effect that he did not want or had not wanted to disappoint Mr Kamidian by telling him this. Ms Sheley also contacted an appraiser called Marie Betteley whose name she was given by Ms Aiken. Ms Betteley did not have the opportunity to inspect the clock itself but was supplied with a slide and photographs together with the exhibition catalogue. She thought that the piece looked “awkward” and she had reservations about it. She was sceptical as to whether it was necessarily of the value attributed to it, US$2.5 million, in its hitherto undamaged state.[20]Ms Aiken had advised in her restoration proposal that consideration should be given to the use of a specially customised container for the clock on its return journey, with the wooden case packed separately. She gave it as her opinion that the clock could not be adequately secured within its own wooden case for the purposes of transport, a view which the parties’ experts in packing are agreed is correct. In the light of the obvious inadequacy of the packing for the outward journey and the advice of Ms Aiken, Ms Sheley raised with Broughton the need for the clock to be shipped separately from the wooden case. Broughton referred Ms Sheley to Alexander who in turn referred her to the specialist packers Artex of New York who had been contracted to do the packing on site for the return of the exhibits to the various overseas lenders. Artex agreed to build both an inner box and a crate for the clock. They also agreed to pack the presentation box separately in the original crate used for the outward journey. Artex made the new inner box and crate for the clock. Ms Sheley advised both underwriters and Mr Kamidian of these arrangements by fax messages sent on 2 March 2001. Her fax to Mr Kamidian read:
“I apologise for the delay in sending this fax; however, due to the American Airlines cargo strike there has been some difficulty in making shipping arrangements for the exhibition. At this time, a travel box to bring the clock from Wilmington, DE to New York has been made. Once in New York, the piece will be crated for transit to London. We are hoping that the crate will be made in time to return the clock with the rest of the exhibition going back to London. I should be able to confirm the details of this next week. Once the piece arrives in London, please advise how you wish to proceed. Shall we have the piece delivered directly to the restorer? Please advise who you have arranged to restore the clock. I await your further instructions.”
I should record here, since it is arguably relevant to a subsidiary issue, that I do not regard Ms Sheley’s fax as containing a clear and unambiguous representation made on behalf of underwriters that they would ensure the safe return of the clock. It was simply a factual statement by Ms Sheley as to the arrangements which had been made. At no stage did Ms Sheley say anything to Mr Kamidian over the telephone which he could reasonably have interpreted as an assumption of responsibility by her on underwriters’ behalf for the suitability of the return transport arrangements. Nor, as I find, did Mr Kamidian rely to his detriment upon anything said by Ms Sheley, whether orally or in writing, in not himself taking charge of the packaging/transport arrangements or making alternative arrangements. Mr Kamidian took no interest in the packaging/transport arrangements, and would, as I find, simply have allowed matters to take their course even had he not been advised of the arrangements made. I await your further instructions.”[21]Shortly before the items were due to be shipped back to London Ms Sheley was told that Alexander had replaced Artex with a different packer, “Art in Motion”. It is unclear why Alexander did this. Art in Motion were now short of time, however Artex would not allow them to use the inner box and crate for the clock which they had already manufactured. Artex were understandably concerned about the potential liability to which such a course might expose them. Art in Motion agreed to build a foam box for the clock on site in Wilmington and then to pack that into a separate crate. The clock’s presentation box would be packed separately in the crate used for the outward journey. Ms Sheley confirmed these arrangements with Mr Mark Broughton of the eponymous firm – Mark Broughton is one of the sons of the company’s President and founder, Mr James Broughton. All this notwithstanding, when the clock was handed over to Art in Motion by Broughton at Wilmington, it was pre-packed in tissue paper in its wooden presentation box. The box was then packed into a small foam lined crate, considerably smaller than a standard airfreight crate. It appears that all this was done on the instruction of Mark Broughton. Art in Motion’s Transport Order records “Clock packed in original box as per Mark B”. It is agreed that the unsuitability of the presentation case for transporting the clock was in this way compounded. Packing the presentation case into a small crate as opposed to a larger airfreight crate was a mistake. A larger airfreight crate is safer than a small crate because it is less likely to be tipped over or dropped in handling. It would be an unsurprising consequence if on its return journey to London the clock sustained further damage.

Discovery of damage to the egg clock (2)

[22]The items were transported to the London Safe Deposit where unpacking took place in the presence of Mr Kamidian, Mr von Solodkoff and Mr Iain Fairley, a loss adjuster appointed by underwriters. It was apparent upon the unpacking that two of the floral branches had become detached from the floral spray at the top of the clock. One was a “single bud branch”, in fact the same branch from which the bud had become detached on the outward journey. The other was a “two bud branch”. It is now common ground, although it was not accepted by Mr Kamidian until shortly before the trial, that the two branches became detached at the site of earlier soft solder repairs or attempted repairs, indicating that the branches had earlier fractured in precisely the same place and been the subject of repair or attempted repair. It had earlier been said by Mr Kamidian, buttressed by metallurgical reports obtained in Russia and France, that the soft solder in question was part of the original manufacturing process. The significance of the earlier damage is its relevance to depreciation. It is accepted, or if it is not I find, that if the piece had already sustained damage through the fracture of the two stems before 2000, then neither the damage to the single bud on the outward journey nor the subsequent renewed detachment of the two stems at the site of the earlier repair can have given rise to any depreciation in the value of the clock. The same is true of the introduction of a “slant” into the assembled clock which is said to have occurred at the same time as and for the same reason as the fracture of the two floral stems. However Mr Kamidian has since December 2007 asserted that the earlier, and first, fracture and repair or attempted repair of the two floral stems in fact took place in Wilmington whilst the clock was in the custody of Broughton. The suggestion is that the two stems were cracked during the outward journey and bent inwards and that either Broughton “or their appointed restorers”, in an attempt to restore the sprigs to their correct position, bent them outwards and thus completed a reverse bending fracture. The soft solder deposits on the sides of the stem fractures are said by Mr Kamidian to be the product of an unsuccessful attempt to repair the fractures whilst the clock was still in the USA. This theory, if correct, preserves a claim for depreciation in value of the clock arising out of the detachment of the single bud on the outward journey and adds to it a claim for depreciation arising out of the detachment of the two floral branches, all of which damage is alleged first to have occurred during the currency of the all risks insurance. There would also be a claim for any depreciation arising out of the alleged slant introduced at the same time. Ms Padfield, for Mr Kamidian, did not I think commit herself as to when or precisely how the fracture of the two floral stems thus occurred. It is accepted that the single bud stem was in place when Ms Aiken took twenty minutes to locate the point from which the bud had become detached. Ms Padfield’s preferred case was that after the end of the exhibition someone attempted to push the two flower stems back into position and broke them. She suggests that an unsuccessful attempt was then made to effect a repair using soft solder. She suggests further that Mr Mark Broughton deliberately departed from the previously made return packing arrangements and directed that the clock be packed into its own presentation case for the return journey to the UK in an attempt to provide a plausible explanation for the damage which would not “implicate Broughton and their attempt to repair”. On this footing the stems were already detached before the clock was finally put into the presentation case for the return journey and simply packed loose in a manner which would and did give rise to the inference on arrival that they had been detached during transit. Another possibility consistent with this conspiracy theory, although I do not think that Ms Padfield embraced it, is that a successful repair was carried out at Wilmington but that it was insufficiently robust to withstand the rigours of the return journey. On either view, dishonest and discreditable conduct is attributed to Broughton and possibly to others who may have been involved in concealing the damage and the unsuccessful or ineffective repair.[23]Mr Fairley made arrangements for a firm of specialist conservators, Messrs Plowden & Smith Ltd, to collect the piece and provide an estimate for restoration. Their estimate was £740-780. This did not include correction of the as yet unnoticed slant damage. As before, Mr Kamidian seems to have been unwilling to countenance repairs being effected prior to insurers agreeing a measure of depreciation. Mr von Solodkoff and Dr von Habsburg were again consulted. Mr von Solodkoff considered that in the light of a successful repair depreciation would be in the range 15% to 20%, although it seems that he also expressed the view “privately” to Mr Fairley that the damage could result in a loss in value of 30% to 50%. Dr von Habsburg, shown photographs in the United States, advised that he considered depreciation in the area of 15% to be appropriate. All these expressions of opinion were of course premised on the assumption that the clock was, before it travelled to and from Wilmington, in pristine condition without previously repaired damage.[24]Mr Justin Hill, a metals specialist at Plowden & Smith, inspected the clock, presumably in connection with the envisaged repair. Based on his advice Miss Sarah Giles of that firm sent to Mr Fairley documents dated 26 April 2001 and 2 May 2001 headed “Report and Estimate”. These brief reports, the second being an expanded version of the first, raised for the first time the possibility that the branches, hitherto presumed on all sides to have become detached during the return journey of the clock, had previously been broken and repaired. The second report included the following passage:
“Two branches have broken off at their base and a bud has also become detached. On the break edges of the sprays there is evidence of solder which is not evident on the break edge of the bud. This indicates that the stems may have had previous repair using lead solder. The piece would likely have been originally constructed using silver solder, however it cannot be guaranteed that lead solder was not used when the piece was first made.”
[25]I have already mentioned the obvious relevance, to the assessment of depreciation in value consequent upon later damage, of repaired damage occurring earlier in the life of a piece. The significance of Miss Giles’ report was not lost on Mr Fairley. On 3 May 2001 he sent to Mr Kamidian a copy of the later report with a covering note which read:
“I attach the latest report from Plowden & Smith together with the earlier report you requested. I take the view that if the two branches have previously been detached, and if they can be re-joined and re-gilded well, this ought not to effect (sic) value of the clock. We had previously proposed that loss of the single bud would bring about a loss of about 5%. It has to be said that this was on the assumtion (sic) that the clock had no previous repairs. I shall however still recommend this settlement plus cost of repair.”
[26]Mr Kamidian approached Plowden & Smith direct to discuss the report. He met Miss Giles and Mr Hill. He expressed his concern that, if Plowden & Smith were not certain whether the lead solder was part of the original construction, that uncertainty should be reflected in the report. He also pointed out that there was, in his view, a slant or lean to the clock and asked that reference be made to that also. As a result Miss Giles issued a revised report of 8 May 2001 which in material part read:
“Two branches have broken off at their base and a bud has also become detached. On the break edges of the sprays there is evidence of solder which is not evident on the break edge of the bud, suggesting that this part (sic) or original construction. The stems may have had previous repair using lead solder, but the minor amount of solder present on the break edges suggests that it is part of the original construction rather than a repair. The whole piece is at an angle suggesting a possible impact. An impact such as this is the probable cause of damage.”
Miss Giles was then less experienced than she is now and she gave no thought to the implications for depreciation of the change in view which this revised report represented. Miss Giles was concerned only with the cost of repair to which the change was of no relevance. I attach little importance to this episode. Mr Kamidian was of course acutely conscious of the implications, but I do not consider that he brought undue pressure to bear on Miss Giles and Mr Hill to alter Plowden & Smith’s conclusion. On the other hand, for what it is worth, I do not consider that the revised report of 8 May 2001 represented Plowden & Smith’s real view. Miss Giles described in evidence a discussion in which Mr Kamidian was very persistent and which seemed to go round and round in circles without getting anywhere. That is in light of the experience at trial an entirely plausible description. Miss Giles and Mr Hill were no doubt anxious to get rid of Mr Kamidian and saw no harm in humouring him.[27]Mr Fairley plainly formed the view that Messrs Plowden & Smith had, in acting in this way, been somewhat naive, and had probably not been aware of the significance of the change to their report. He remained firmly of the view that it was improbable that the original construction would have used lead solder. He recommended settlement of the depreciation claim at 5% on the basis that the detachment of the bud was new damage. Underwriters agreed with this proposal.[28]Mr Kamidian remained unhappy with underwriters’ stance. Mr Fairley instructed metallurgists at Oxford University to examine the clock with a view to determining whether the breaks were recent or old. The first to inspect the clock and to assess what analyses could be undertaken was Dr Peter Northover of the Materials Science-Based Archaeology Group in the Department of Materials. Interestingly his first, unprompted, reaction was to express scepticism about the provenance of the clock which he had been told by Mr Fairley was by Fabergé. After his first inspection he e-mailed Mr Fairley as follows:
“I have now inspected the clock at Plowden & Smith and can see what raised the concerns of their metal restorer. First, although I am no expert in Fabergé’s output one must question whether the clock is really by his workshop. The workmanship appears inferior, as does the case.”
Thereafter non-destructive X-ray fluorescence analysis was carried out. Dr Brian Gilmour reported that there was clear evidence that the branches had been broken before the most recent occasion and re-attached using a soft lead-tin solder. The original construction was “tack-soldering” using a hard, lead-free silver solder before the whole assembly was gilded. Later Dr Gilmour concluded that the bud detachment had occurred at a point where there was a flaw in the stem. In November 2001 insurers withdrew their offer to pay 5% in respect of the depreciation claim. They remained prepared to entertain a claim for cost of restoration.[29]Since no reliance is any longer placed upon them, I need not describe the conclusions reached by metallurgists in Russia and France which were deployed by Mr Kamidian in 2002 in an effort to persuade underwriters that the solder found on the broken branches was part of the original construction. Underwriters remained unpersuaded. The clock remained unrepaired.

Solicitors are instructed

[30]In February 2004 Mr Kamidian instructed solicitors, Messrs Roiter Zucker, to press his claim against underwriters. Underwriters instructed Messrs Ince & Co. Ince raised the question of possible breaches of a Packing Condition in the insurance cover as well as the need to have experts consider the provenance of the clock. In response to a question concerning acquisition of the clock Messrs Roiter Zucker, on 7 October 2004, said, presumably on Mr Kamidian’s instructions:
“The clock was purchased by a group in an auction in November 1991 at Sotheby’s in Geneva. No invoice has been found but the relevant catalogue is attached.”
Production to insurers of the Sotheby’s catalogue entry to which I have already referred above not unnaturally led them to question whether the clock was indeed by Fabergé and, perhaps more importantly, to question the basis upon which they had been induced to insure it as a Fabergé piece valued at US$2.5 million. Proceedings were issued in June 2006 by which time Mr Kamidian’s present solicitors had replaced Messrs Roiter Zucker.

The claims in outline

[31]In the result Mr Kamidian claims against underwriters under the policy damages consisting of(a) the cost of repair and(b) depreciation in value consequent upon the damage. The policy being a valued policy, depreciation is claimed at whatever is the appropriate percentage of the insured value. The Claimant’s evidence on what would be the cost of repair and what would be an appropriate depreciation in value consequent upon the damage was in some disarray, to the extent that on the first issue he had no evidence at all. I shall deal with that aspect when I come to deal with the quantum of any recovery. Mr Kamidian claims against Mr von Solodkoff, Dr von Habsburg and Broughton on the basis that they were all bailees of the egg clock who failed to return it in the like good order and condition as when received. In effect the damages claimed are the same as are claimed against underwriters. A pleaded claim by reference to the alleged present value of the egg clock was not pursued at trial. Accordingly the claim is again for the cost of repair and depreciation consequent upon the damage. It was not in dispute that the insured value would have been an appropriate value to adopt in the period 2000-2001 in respect of a piece of this nature generally accepted to be by Fabergé.[32]Broughton has been served with the proceedings but has neither acknowledged service nor served a defence to the claim. By its President, James Broughton, it has asserted that it is without assets and has ceased trading, although as at the date of the last letter from Mr Broughton which I have seen, 15 July 2007, Broughton still existed as a Florida corporation. Mr Broughton has asserted in correspondence that the Fabergé exhibition completely ruined both the company and his family, although I have no idea whether or why that is or should be so. Broughton is not I think aware of the case advanced against it at trial to the effect that it concealed or attempted to conceal its own breakage of the piece, and its repair or attempted repair, of the two floral sprays. There was accordingly some discussion at trial whether I should allow the allegation to be pursued – c.f. the observations of Ackner J in Rustenburg v. PanAm [1977] 1 Lloyd’s Rep. 564 at pages 570-571. Ms Padfield suggested that in that case the considerations were different as criminal conduct, theft, was alleged against persons who were not even party to the action. She suggested that the conduct of which Broughton is now alleged to have been guilty, although serious, is not criminal, and moreover she pointed out that Broughton is a party to the action who has chosen not to participate. I am not sure that I can regard either of those points as either relevant or particularly telling, but in light of the view I have formed as to the likely age of the two fractures I need not consider the point further. Initially Ms Padfield sought judgment in default of acknowledgement of service (and Defence) against Broughton but in the light of indications from the court that a reasoned judgment would be both more appropriate and preferable in any event she did not press this request. It is right to say that I also indicated that I could not see that Broughton had any defence to the claim save as to quantum. In that regard I am grateful to Mr Kimbell for undertaking the task of addressing the court on the question whether Broughton could avoid liability by establishing that Mr Kamidian had no title to the egg clock, or by relying on his failure to prove his title. The general rule is that a bailee cannot avoid liability in this way and there is present in this case no feature which would, exceptionally, permit any of Broughton, Mr von Solodkoff or Dr von Habsburg to deny Mr Kamidian’s title if, as he asserts, all or any of them were at material times bailees of the clock.[33]The same is not true of insurers. An insurable interest in goods can be constituted by an interest short of full ownership. However in this case it was not suggested that Mr Kamidian could succeed in his claim against insurers without proving his title to the clock. The issue of Mr Kamidian’s title was hotly disputed. Before I turn to discuss that issue I should sketch in as briefly as I can how the insurance was placed.

Execution of the Loan Agreement and placement of the insurance

[34]At the meeting on 31 March 2000 Mr Kamidian signed a “List of Items for the Wilmington Delaware Exhibition ‘The World of Fabergé’ 2000” which had earlier been prepared by Mr von Solodkoff. The list included as item no. 10 “Nephrite clock with silver-gilt mounts. Provenance: Dr Metzger”.[35]As is customary the lenders to the exhibition were required by Broughton to sign a standard form “Loan Agreement”. Pursuant to that agreement Broughton undertook an obligation at its expense to provide adequate and appropriate all risks insurance for the objects described in “Attachment A” in the amount indicated therein. The Borrower was to provide to the Lender at least 30 days prior to shipment an appropriate certificate of insurance. It is plain from the documentary evidence that without a loan agreement signed by or on behalf of a lender Broughton could not procure the issue of a certificate of insurance in respect of the items lent. Without a certificate of insurance no item could travel. Pursuant to the standard form of agreement Broughton also undertook when and if necessary at its expense to arrange for and provide appropriate and adequate packing and crating of the objects and appropriate and adequate secure shipping arrangements.[36]Mr von Solodkoff had great difficulty in completing the necessary paperwork in the absence of co-operation from Mr Kamidian. For whatever reason, Mr Kamidian wanted there to be as little documentary record of the transaction as possible. He made it clear to Mr von Solodkoff that he wished to receive no correspondence on the subject and that he wished to receive no copies of any documentation that the transaction might naturally generate. He showed no interest in such documentation and declined to co-operate in its production.[37]Although he denied having done so, I find that by 27 June 2000 Mr Kamidian had given to Mr von Solodkoff over the telephone the values for which he wished the pieces lent by him to be insured. The value given for the egg clock was US$2.5 million. Mr von Solodkoff jotted down these values on a draft of the exhibition catalogue on which he and Dr von Habsburg were by then working. On 27 June 2000 Mr von Solodkoff prepared a typed schedule headed “FABERGÉ Exhibition Wilmington, Delaware 2000/2001, Insurance Prices”. This set out the values which Mr von Solodkoff had been given by Mr Kamidian which totalled US$3,831,000 for 24 items. It was suggested to Mr von Solodkoff that, using his knowledge and experience, he could easily have come up with these figures himself, and that he did so, without any involvement of Mr Kamidian. I think it most unlikely that Mr von Solodkoff would have taken upon himself the responsibility of attributing to a piece for insurance purposes a value which had not been agreed by the lender. I think it most unlikely that Mr von Solodkoff would in any event of his own volition have come up with the figure of US$2.5 million, or indeed any figure. As I shall later describe, he had already had a debate with Mr Kamidian as to how the provenance of the piece was to be described in the exhibition catalogue. He and Dr von Habsburg had been persuaded to describe it therein as “by Fabergé” but its valuation for insurance purposes would have remained a delicate matter on which he would have wanted Mr Kamidian’s input. It is simply not credible to suggest that Mr von Solodkoff would not have asked Mr Kamidian what value he wished to be placed upon this piece, and other pieces, for insurance purposes. It was as I understand it Mr Kamidian’s evidence that at the 31 March 2000 meeting Mr von Solodkoff said that he had no time to waste with the discussion of formalities such as insurance values, or the completion of documentation, and that Mr Kamidian thereafter left it to Mr von Solodkoff to deal with these matters as he saw fit. It is not credible that Mr von Solodkoff would have proceeded in this manner. So far as the documentation reveals he was correct in his dealings with other lenders and, in my judgment, he would have attempted to be correct in his dealings with Mr Kamidian. In fact the situation was as I find the very reverse of that depicted by Mr Kamidian. It was Mr Kamidian who said that he did not wish to be bothered with documentary formalities. In time Mr von Solodkoff came to question why Mr Kamidian harboured such an antipathy to the generation of normal paperwork and he thought it appropriate to distance himself from him. It is in my judgment wholly unlikely that he would in such circumstances have unilaterally supplied Broughton with the values for which items in the “Kamidian Collection” were to be insured.[38]Broughton instructed its United States insurance brokers, Messrs Wallace, Welch & Willingham, hereinafter “WWW”, to arrange insurance. WWW in turn approached HSBC Insurance Brokers Limited, “HSBC” in London. HSBC held a Worldwide Fine Arts All Risks limited binding authority for certain Lloyd’s underwriters for the 12 month period from 14 January 2000 in respect of “Specie Risks” of up to US$250 million. Under the terms of the binder all risks to be bound had first to be presented to three leading underwriters for ratification and agreement as to attachment of cover, conditions and premium to apply. Although the documentary trail is not entirely clear, it is common ground that Mr von Solodkoff’s typed schedule of 27 June 2000 was provided by WWW to HSBC. It listed 24 items for Mr Kamidian. Item MK10 was “nephrite mantle clock, 46822, Fabergé Moser” against which the “insurance price” was US$2,500,000. That this had occurred by 24 July 2000 is demonstrated by the fact that on that date WWW faxed to Constantine, the packers for the loan items to be collected from London, a “Memorandum and Certificate of Insurance” relating to Kamidian Collection, C/o Alexander von Solodkoff, 2-7 Ongar Road, London, SW6 1SH, England”. “Kamidian Collection” as so described was said to be the “Memorandum Holder” and “Additional Insured” under what became Broughton’s insurance placed under the binder. The Memorandum certified that the cover was effective from 17 July 2000 to 18 February 2001, “with respect to each object insured as listed and valued hereon or on the attached listing of objects insured” and confirmed that:
“subject to the Conditions, exclusions and limitations contained herein, the below mentioned policies insure said property on the ‘wall to wall’ basis against risks of physical loss or damage from any external cause except: … inherent vice”
. The insured property was described as “per Schedule on File with HSBC Insurance Brokers Limited”, and the Amount of Insurance was stated to be US$3,831,000.[39]The leading underwriters were shown various schedules of insured values of items for Broughton’s “Fabergé Exhibit” (sic) and in due course scratched a Master Certificate for the Exhibition Insurance which attached a declaration schedule confirming all risks physical damage cover to Broughton “and/or for whom they may have instructions to insure each for their respective rights and interests” backdated to 17 July 2000 “at locations and whilst in transit” in respect of “Fine Art Objects belonging to the WORLD OF FABERGÉ Exhibition as per schedule retained in the offices of HSBC” with Conditions “As per attached Wording”. In addition to the express exclusion of cover in respect of loss or damage caused by inherent vice, to which reference was made in the Memorandum as set out above, the attached wording included the following express terms:
“4. BASIS OF VALUATION Each Fine Arts object is covered with respective valued amounts as per schedule on file. In respect of partial losses indemnity includes any costs or expenses associated with restoration plus any resulting depreciation… 11. PACKING AND SECURING OF PROPERTY IN STORAGE OR TRANSIT It is a condition of this Certificate that the Assured will take reasonable steps to ensure that property, the subject-matter of this Certificate, will be stored or packed in such manner as to withstand the normal hazards associated with storage or transit.”
[40]It is unlikely that the leading underwriters ever saw the actual description of item MK10, although it was contained within an inch-thick pile of schedules of items from individual lenders which the broker may well have shown to them and made available for perusal if required. This is however academic. One of the leading underwriters, Mr Keith Nichols, gave evidence at the trial. He was not challenged on his assertion that, so far as concerned the entire placement, the way the material was presented to him at the time indicated to him that all the items in the Exhibition were genuine Fabergé items. Of course that statement needs some unbundling so as to determine precisely what is meant by “genuine Fabergé items” but it suffices as a description of the broad thrust of the placement. As it happens not all of the items were in fact said to be by Fabergé – quite a number were expressly attributed to different houses. It is accepted by Ms Padfield for Mr Kamidian that in the course of the placement of the insurance an implied representation was made to underwriters that Mr Kamidian honestly believed that the “Kamidian Collection” had a total value of US$3,831,000 including US$2.5 million in respect of the egg clock and consisted of genuine Fabergé items in the sense of items which were made by the House of Fabergé. This approach again needs to be modified slightly to accommodate the fact that the individual schedules occasionally list items which were expressly not said to be by Fabergé but be someone else, a good example being item MK15 “Hardstone Parrot – Denisov Uralski” and indeed there were other expressly non-Fabergé items in the schedule for the Kamidian Collection. However it is not in dispute that underwriters were induced to attribute to the egg clock a value consistent with it being a Fabergé piece in the above sense. It is controversial whether the implied representation made should be regarded as going further than is accepted by Ms Padfield, but this is a debate as to what implied representation is properly to be spelled out of a placement effected as I have described. It is not in dispute that nothing was said to indicate to underwriters that there was any doubt concerning the provenance of the egg clock. This is significant because it was clear from the evidence of Mr Nichols that had it been said to him that there was some doubt as to the provenance of the clock he probably would have declined to quote for its inclusion in the cover. It is unlikely that underwriters would have sought an independent valuation for what was only one item within the total value being covered of about US$120 million. Their attitude would almost certainly have been one of being unprepared to get into a debate about whether the suggested valuation was correct. They would simply have been uninterested in including within a valued fine art insurance a piece the provenance of which was doubtful. Again without question it will sometimes be necessary to consider what constitutes a doubt as to provenance, although in the circumstances of this case I do not think that that gives rise to any real difficulty.[41]On 12 July 2000 Mr von Solodkoff signed a Loan Agreement in standard form with Broughton on Mr Kamidian’s behalf. I find that both Mr von Solodkoff and Dr von Habsburg had already made it abundantly clear to Mr Kamidian that they were not the organisers of the exhibition at Wilmington but that Broughton was and that they were merely acting on Broughton’s behalf in selecting items for the exhibition and as Broughton’s intermediaries in assisting with the arrangements for carriage and insurance of the pieces. Mr von Solodkoff and Dr von Habsburg explained to Mr Kamidian that Broughton had just organised a very successful exhibition in Wilmington, the “Nicholas and Alexander” exhibition. Indeed this had been explained to Mr Kamidian by Mr von Solodkoff in the course of the first meeting at which Mr Kamidian’s possible involvement had been discussed, the meeting in the summer of 1999. Mr von Solodkoff and Dr von Habsburg explained to Mr Kamidian where Wilmington is and how one gets there, Mr Kamidian being interested in the logistics. Mr Kamidian was I find at all material times fully aware that the organisers of the exhibition were Broughton and that the role of Dr von Habsburg and Mr von Solodkoff was that of co-curators, with Dr von Habsburg having the principal and Mr von Solodkoff a subsidiary role. Signature of the Loan Agreement on Mr Kamidian’s behalf therefore formalised in writing a structure and arrangements of which Mr Kamidian was already fully aware. I find that Mr von Solodkoff explained to Mr Kamidian over the telephone the contents of the agreement, none of which would have come as any surprise to him. I find that Mr Kamidian authorised Mr von Solodkoff to sign the agreement on his behalf and asked him to insert as his address “Iconastas, 5 Piccadilly Arcade, London SW1”, dealers who were friends of his in London. It is I think inconceivable that Mr von Solodkoff would have given as Mr Kamidian’s address that of Iconastas unless Mr Kamidian had asked him so to do. Mr von Solodkoff had at least three other addresses for Mr Kamidian – it would have been more natural to have used one of these if, as Mr Kamidian asserts, the document was being signed without his authority. Mr von Solodkoff himself knew of Iconastas but it was not suggested to him that he had any reason to connect them with Mr Kamidian. When signing at any rate one other loan agreement, that on behalf of Hansen Gmbh, Mr von Solodkoff signed it with his normal signature, which is recognisably A. Solodkoff or something close thereto, and used the abbreviation “pp” to indicate that he was signing in a representative capacity. He did not sign Mr Kamidian’s Loan Agreement with his usual signature, and the letters “pp” were not used. Under the rubric “Lender” on the third page of the agreement he wrote in “M. Kamidian” and then underneath that appended what is to all intents and purposes a meaningless squiggle composed of two lines, of the type which is often used as an illegible personal signature. Mr von Solodkoff described it in evidence as his personal manuscript mark which he frequently uses and which means “Alexander” in Arabic. He had, he said, learned it when he was sixteen years old. Having regard to the view which Mr von Solodkoff had formed concerning Mr Kamidian’s reliability and having regard to his suspicions concerning Mr Kamidian’s reluctance to allow the transaction to be documented in the usual way, Mr von Solodkoff did not wish his name to be associated with Mr Kamidian. I find this explanation entirely credible. I think it unlikely that the significance of the “manuscript mark” is something which Mr von Solodkoff either could or would have invented. Albeit it emerged only on Day 6 of the trial, it was an explanation which could readily have been refuted, if untrue, by an Arabic speaker. It is of course an unfortunate consequence of acting in this way that the agreement looked for all the world as if it had been signed by Mr Kamidian himself. However in the ordinary course of things, since Mr Kamidian did not want to receive a copy, the agreement would be seen only by Broughton, and Mr von Solodkoff told Dr von Habsburg, through whom his dealings with Broughton were conducted, that he had signed the agreement on Mr Kamidian’s behalf. I think that it was probably only with reluctance that Mr von Solodkoff signed the agreement on Mr Kamidian’s behalf at all, and that his conversations with Dr von Habsburg both before and after signature reflected this reluctance. I do not find it surprising that Dr von Habsburg has no recollection of this so long after the event. It was in any event common practice for Mr von Solodkoff to sign similar such loan agreements on lenders’ behalf, albeit usually of course with their authority. In the ordinary course of events therefore no-one should have been misled by the manner in which Mr von Solodkoff handled the signature of the agreement. It was suggested to Mr von Solodkoff by Ms Padfield that he signed the agreement without speaking to Mr Kamidian because he did not want Mr Kamidian to come to London because “something had happened to the egg before it went to the packers”. Presumably the suggestion was that the single bud had become detached. That however could not have been concealed from Constantine. They were responsible for packing the clock, and for that purpose they removed the clock from its case and wrapped it in tissue paper. They would hardly have packed the bud loose and detached from the clock without generating a document recording the breakage in order to safeguard their own position.

Ownership of the clock

[42]Mr Kamidian’s evidence on this topic was inconsistent, contradictory, confusing and by any standards unsatisfactory. For an intelligent man he adopted an extraordinarily naïve approach to the question of proof of ownership, an enquiry which he affected to regard as either an irrelevance or an impertinence. I am afraid that I was wholly unconvinced by this stance.[43]The egg clock was bought at auction in 1991. In 1992 Mr Kamidian exhibited the egg clock at “The Fabulous Epoch of Fabergé” Exhibition at the Catherine Palace in Tsarskoye Selo, St. Petersburg. Mr Kamidian was one of the three organisers of this exhibition and one of the two compilers of the catalogue. Mr Kamidian caused a photograph of the Dr Metzger Egg Clock to appear on the front cover of the catalogue, notwithstanding that two Imperial Easter Eggs of undoubted provenance and fame were also included or intended to be included in the exhibition, the Memory of Azov Egg and the Steel Military Egg. Madame Tatiana Fabergé, great grand-daughter of Carl Fabergé and a noted authority in the field, attended the exhibition. She could not remember the Memory of Azov Egg being on display, notwithstanding it appears in the catalogue, and Ms Padfield told me on instructions from Mr Kamidian that that egg was not in fact exhibited. I shall return in due course to what Mr Kamidian said in the catalogue about the Dr Metzger Egg Clock.[44]The Dr Metzger Egg Clock was not again exhibited until 2000/2001 at Wilmington. It has not of course been exhibited since. It remains unrepaired, although the absence of two branches is not overwhelmingly destructive of its appearance.[45]Paragraphs 76 and 108 of Mr Kamidian’s main witness statement, part of his evidence in chief at trial, read as follows:
“76. Due to all the facts set out above I decided that the Egg was definitely real Fabergé and decided to purchase the Egg. The price of the Egg was 25,000 to 35,000 Swiss Francs. I purchased the Egg with a co-purchaser for 148,000 Swiss Francs. At this point I paid for a 50% share in the Egg along with a co-owner. … 108. As I explained earlier above in my witness statement I purchased 50% of the share of the Egg with somebody else who purchased the other 50%. I cannot remember his name. His (sic) subsequent sold his interest in the Egg to a third party. In or around 1998 I purchased the other 50% of the Egg from the third party whom I cannot remember their name either.”
In response to questions raised in correspondence before trial between the solicitors concerning the identity of all the co-owners of the clock, including the alleged third party co-owner, it was said on Mr Kamidian’s behalf:
“Our client was only introduced to the co-owners from intermediaries. Our client genuinely cannot remember the name of the person as he had a very complicated surname. Our client has confirmed to us that he remembers his first name as being Roger and will attempt to find out his surname.”
The “Roger” there identified was apparently the co-purchaser at auction. In his oral evidence Mr Kamidian suggested that Roger was himself acting on behalf of others, although it was unclear whether these unnamed financial backers had authorised the purchase in advance or were persons from whom Roger obtained finance subsequent to the purchase at Sotheby’s. Sotheby’s invoice was, said Mr Kamidian, settled in full by Roger and he did not know what had become of the invoice. There is no evidence as to the identity of the person to whom the invoice was addressed. Mr Kamidian has been able to obtain from Sotheby’s a document recording the prices paid at the Geneva auction on 21 November 1991 but no document evidencing the participation of Mr Kamidian or anyone else in the transaction in question has been produced. It was not explained whether the unnamed financial backers provided the money with which to complete the purchase before or after the auction and there are some obvious question marks over the logistics of a purchase carried out as this is said to have been achieved. None of these arrangements were apparently documented, or if they were no documents have been produced. According to Mr Kamidian he contributed his 50% share of the price by giving to Roger jewels and Fabergé items to an equivalent value. No documentary record of this part of the transaction has been produced and Mr Kamidian says that there was none. At no stage did Mr Kamidian give any coherent evidence concerning the profitability of his trading activities, either now or in 1991. There is no evidence upon the basis of which I could reliably conclude that in 1991 Mr Kamidian had the personal means to acquire jewels and other Fabergé items to the value of approximately US$52,500 in order to complete this alleged transaction. Roger was allegedly a person who had a stall or stand at the Louvre Antiquaire and Mr Kamidian said that he had asked Roger’s former partner at that establishment as to Roger’s current whereabouts. Even if the former partner does not know where Roger is currently to be found it seems unlikely that he could not have supplied the apparently forgotten surname.[46]I find the suggestion that Mr Kamidian cannot remember Roger’s surname the more incredible when I consider what is said to have been the nature of the agreement between them. Mr Kamidian said that they agreed that each of them would be free to attempt to sell the egg clock as a Fabergé piece for US$3 million. To that end sometimes the egg resided with Roger, sometimes Mr Kamidian had possession. When Mr Kamidian had possession generally the clock was kept in a bank vault, but sometimes it was kept in his house. The arrangement was not documented in any way. I think it implausible that Mr Kamidian would not know the surname of a person with whom he had an arrangement of this type concerning an artefact of allegedly great value. More than once Mr Kamidian said in evidence that the circle of people dealing with Fabergé works is extremely limited, evidence which I accept is likely to be true. In those circumstances, I regard it as implausible that Mr Kamidian would have been unable for the purposes of the trial to find out Roger’s name, if indeed he had forgotten it. Indeed it is in my view unlikely that Roger’s current whereabouts could not equally have been ascertained. I am afraid that I am forced to the conclusion that Mr Kamidian has been unwilling that Roger’s identity or whereabouts should be known because he has wished to frustrate the underwriters’ efforts to discover more concerning the circumstances of the purchase in 1991.[47]The evidence concerning Mr Kamidian’s alleged acquisition of the second 50% interest in the egg clock is equally unsatisfactory. I have already set out what was said in Mr Kamidian’s witness statement concerning this transaction. Until trial the stance taken on Mr Kamidian’s behalf by his solicitors, presumably on his instructions, was that he could not remember the name of the person from whom the second 50% share was bought. Answers given by his solicitors on 21 December 2007 and 16 January 2008 seem to proceed upon the assumption that there was only one co-owner from the outset until the time that Mr Kamidian acquired the full interest, rather than that there had been a disposal by “Roger” to a third party as Mr Kamidian had said in his witness statement and which in evidence he said occurred in around 1997. In his evidence at trial Mr Kamidian said that the new 50% owner came to him unheralded in the Louvre Antiquaire “with the documentation, additional information and he said that he would be willing to sell that piece to me”. This was a person he knew from the small circle of dealers to which I have already referred although he knew him only as “Omeri”. Not even this name had been provided before Mr Kamidian gave it in evidence on Day 3 of the trial, although on the same day Mr Kamidian produced a document to which he had referred the previous day. This purported to be a short, two-sentence statement written in the Russian language by Mr Omer Bar-Joseph, prepared and signed by Mr Bar-Joseph for the purposes of the trial. In translation it reads:
“I, Omer Bar-Joseph, confirm, that the egg in the form of the clock, bought on auction Sotheby’s in Geneva in 1991 Lot 394, sold to Mr Michel Kamedian (sic) for US$145,000 in 1998. Money were received by me personally.”
[48]It was said by Mr Kamidian that he met Mr Bar-Joseph at the auction of the Rothschild Egg at Christie’s on 28 November 2007 and that he asked him “to send me this paper”. Mr Kamidian said that Mr Bar-Joseph did so after the Russian New Year in January 2008 although he had had difficulty in printing it off from his computer. I cannot attach any weight to this document. It is not probative of Mr Kamidian having paid US$145,000 to Mr Bar-Joseph in 1998. Nor is it supportive of the suggestion that Mr Bar-Joseph was by then an owner of 50% of the clock. If anything, the document suggests that Mr Bar-Joseph owned the entire clock. In the absence of documentation evidencing that Mr Bar-Joseph had an interest in the clock, I find it impossible reliably to conclude that he did. It is true that, in the course of the trial, Mr Kamidian released to underwriters’ solicitors what were alleged to be contact details for Mr Bar-Joseph in the shape of the address of his shop in Russia, telephone number and e-mail address. I have heard nothing as to the outcome of any enquiries which underwriters may in consequence have made. I shall not speculate. The burden of proof on this issue is on Mr Kamidian. An apparent willingness to release information which might assist underwriters in verifying his case is no substitute for adducing evidence in support of that case. In any event I could without more attach little weight to any undocumented information which might emanate from Mr Bar-Joseph. He was not called to give evidence at the trial. I think it unlikely that Mr Kamidian would have paid US$145,000 to Mr Bar-Joseph without production to him of documentary proof that Mr Bar-Joseph had an interest to sell. Had Mr Bar-Joseph produced such documentation, as Mr Kamidian asserts that he did, I think it likely that Mr Kamidian would have retained it or copies thereof, precisely so that he could prove his own title. Furthermore Mr Kamidian claims to have paid the money to Mr Bar-Joseph by bank transfer. Naturally full disclosure was sought. Mr Kamidian’s own evidence on this topic was evasive, confusing and inherently incredible. He claimed to be unable to remember the name of his own bank from which he made the transfer. The relevant bank was apparently in Switzerland, he could not remember definitively in which town or city although he thought Zurich. He also said “I don’t use this bank by which I made the transfer at the moment”. I am afraid that I cannot accept that Mr Kamidian would be unable to recall the name of the bank in Switzerland which he was at that time using. As I understood his evidence this bank was also being used to receive payments from clients to whom Mr Kamidian sold goods. Furthermore, Mr Kamidian would undoubtedly have received statements of account and other documentary records from the bank which he would have been likely to have kept as the records of his business. I cannot reliably conclude that Mr Kamidian made any payment to Mr Bar-Joseph in 1998.[49]My inability to find on the balance of probabilities that Mr Kamidian is the owner of the Dr Metzger Egg Clock is compounded by the evidence, such as it is, about insurance arrangements for the clock and yet further compounded by the lack of evidence as to where responsibility has lain and currently lies for the payment of the costs incurred in storage of the clock in Paris and, as I understand it, for the last seven years at the London Safe Deposit in Lower Regent Street. As to the latter, Mr Kamidian has produced no documentary evidence that he is either the renter or a co-renter of the space and no documentary evidence of the payment of storage fees by him or, for that matter by anyone else, at any time during his alleged ownership of the clock, not even in respect of the most relevant period. That such documentation is ordinarily generated is shown by the production of a document showing Mr von Solodkoff and Dr von Habsburg as, respectively, renter and co-renter of space at the London Safe Deposit in Lower Regent Street in 1999/2000. Plainly Mr Kamidian has access to the piece whilst stored at the London Safe Deposit but that tells me nothing about ownership. The position about insurance is more complicated. In November 2007 underwriters’ solicitors asked for disclosure of Mr Kamidian’s insurance arrangements for the clock prior to, during and after the Wilmington Exhibition, showing, in particular, whether the clock was described as “by Fabergé” and the value for which it was insured. The relevance of this request to the issues in the case is self-evident. The answer given to this enquiry on 21 December 2007 by Mr Kamidian’s solicitors was “all insurance arrangements for the Fabergé exhibition at Wilmington have been disclosed”. On 9 January 2008 Messrs Ince for the underwriters pointed out that this did not address the question. On 16 January 2008 Mr Kamidian’s solicitors responded:
“We do not see what relevance this question has to the case. Section 18.1 of the CPR states that the Court may at any time order a party to (a) clarify any matter which is in dispute in the proceedings or (b) give additional information in relation to any such matter. We take the view that this question certainly does not clarify any matter which is in dispute and does not in any way relate to the matter in dispute.”
I need only say that I find that response surprising. In consequence an application for specific disclosure was made. It was unresolved by the date of the trial. On the first day of the trial Ms Padfield informed her opposite numbers and, subsequently, the court that her instructions were that the egg had not been insured by Mr Kamidian either before or after the exhibition at Wilmington. Mr Kamidian subsequently gave evidence to like effect. In and after September 2007 the question of insurance for the egg became of immediate practical importance in the light of arrangements for the egg to be examined in Cambridge. The solicitors had in fact been in correspondence about this topic since March 2007, the question being whether the assumed then current insurance arrangements would cover the proposed inspection and, if not, whether an extension to the arrangements could be obtained. On 6 June 2007 Mr Kamidian’s solicitors said:
“I would say that we would request that your client takes out an insurance policy as they will not be covered under the current policy in the event that your client damages it.”
On 11 June 2007 Mr Kamidian’s solicitors returned to the point saying:
“I am still awaiting my client’s confirmation that he is happy for a joint inspection but pending his acceptance we would agree to it. However the current insurance arrangements do not cover your expert’s inspection of the egg, and your client would have to insure (sic) that they have the appropriate insurance in place before we can proceed. I am meeting my client on Thursday so I will speak to him about this further and I will come back to you with further instructions.”
On 21 September 2007 Messrs Ince faxed their opposite number as follows:
“You have in the past raised the question of insurance for the Clock during the inspection process and indicated that your client’s current insurance arrangements would not extend to this. As you will no doubt appreciate, given that our clients dispute the provenance and value of the item, it would plainly be more appropriate and also simpler for your client to obtain an extension to his current coverage for the purposes of the inspection process, so that he can ensure that the insurance cover available meets his requirements. As indicated previously, the costs of any extension in cover should be costs in the case for the purposes of the proceedings but we can discuss with you the way in which the premium for such cover is to be met in the short term, if required. We would therefore be grateful if your client could make such arrangements with his insurance broker as he considers necessary in this regard.”
On 16 October 2007 the response to this was:
“Our client has suggested that you organise your own insurance for the inspection. However, he requests to know as to what value you will insure the egg?”
On 19 October 2007 Messrs Ince faxed European Legal Solutions as follows:
“We note that your client is unwilling to consider seeking an extension to his current insurance arrangements in order to deal with the inspection. As indicated, this would plainly be the simplest and (in all likelihood) the most cost-effective way of dealing with this issue. We find your client’s unwillingness to deal with this, in circumstances where this is an issue which he has himself raised, difficult to understand and extremely unhelpful. We would be grateful if you could provide us with a copy of Mr Kamidian’s current insurance arrangements, including confirmation of the value which he has placed on the Clock, so that we can establish to what extent further cover is actually required.”
There was a chaser on 25 October, and on 26 October there was a telling response from Mr Kamidian’s solicitors. It read:
“Further, in relation to the insurance arrangements our client does not feel it is necessary to provide you with a copy of his current insurance arrangements.”
[50]This correspondence is explicable only in terms that there was insurance cover in place in respect of the clock but that it would not cover the clock whilst under inspection in Cambridge or whilst in transit to and from Cambridge.[51]If there was never any insurance in place, the consequence is that the clock was uninsured whilst being kept in Mr Kamidian’s house and, presumably whilst in the custody of Roger while he was attempting to sell it. It was uninsured when Mr Kamidian carried it from Paris to St Petersburg for the purpose of the St Petersburg exhibition. In parenthesis I should add that a Deed of 3 June 1992 which was issued by the Tsarskoye Selo State Museum recording the value of items lent to that exhibition by Mr Kamidian is not on the face of it an offer to indemnify in respect of loss or damage. If there was “also an insurance policy” as asserted in evidence by Mr Kamidian, this is not it. Further, I am invited to find that the clock was uninsured when Mr Kamidian brought it from Paris to London in March 2000.[52]I cannot come to any reliable conclusion as to whether Mr Kamidian ever insured the egg clock or whether, since it is a different enquiry, there was ever any insurance in place of which Mr Kamidian was aware. I think it inherently unlikely that the owner of this piece would leave it uninsured whilst outside a secure vault, whether it was believed to be a Fabergé piece or not. If there was a bona fide belief that the piece was by Fabergé, the absence of insurance would be startling. I agree with Mr Neish, counsel for underwriters, that there are two likely possibilities. The first is that Mr Kamidian’s evidence about lack of insurance is simply an untruth told in furtherance of his design that there shall be no investigation of his ownership, the insurance very possibly being in his name but reflecting the interest of others, and that there shall be no disclosure of the basis upon which the piece has been insured, i.e. whether it is described for invoice purposes as being a Fabergé piece and valued accordingly. The second possibility is that neither Mr Kamidian nor anyone else who may have an interest in the egg clock has or have at any stage placed insurance in respect of its loss or damage but that that course of action is in recognition that a prerequisite of such insurance, if placed on the basis that the piece is by Fabergé, might be an independent appraisal by an appropriately qualified person or persons. As I understand it the clock has never since 1991 been subjected to such appraisal, save in the context of this action. I leave on one side the involvement of Mr Valentin Skurlov, and the circumstances in which Dr von Habsburg and Mr von Solodkoff came to be persuaded to describe the piece as by Fabergé in the catalogue for the Wilmington exhibition. A purely disinterested valuation for insurance purposes has apparently never been obtained. In particular the clock has never been subjected to the acid test of appraisal by an auction house and subsequent exposure to the market, save of course in 1991 when Sotheby’s declined to describe it as by Fabergé. Of the two possibilities suggested by Mr Neish the first is I think the more likely in the light of the solicitors’ correspondence and the fact that the piece is on any view of some considerable value even if not measured in millions.[53]Wherever the truth may lie the evidence as to the insurance position does not assist me to the conclusion that Mr Kamidian owns the clock. Lack of evidence of insurance inclines me to the view that disclosure thereof would reveal either Mr Kamidian’s lack of ownership or complete ownership, or an absence of an honest belief that the piece is by Fabergé. If however the piece was indeed not at any time insured, at any rate not to the knowledge of Mr Kamidian, whilst that may not necessarily take one much further on the question of ownership, it has profound implications for the resolution of the question whether the egg clock has at any time been thought in good faith by Mr Kamidian to have been a Fabergé piece.[54]My conclusions thus far mean that the claim against underwriters must inevitably fail. The claim against the First Defendant must be dismissed. The same is not true of the claim against the other defendants. I propose next to consider the question of the damage to the clock and the related question of depreciation. If there is no claim for depreciation the question of the provenance of the clock is academic.

Damage and depreciation

[55]The most important question here is whether the clock had been damaged and repaired before 2000. It was only in November 2007, during joint metallurgical investigations by Dr Anna Bennett for underwriters and Dr Victor Rollins for Mr Kamidian, that it was accepted on Mr Kamidian’s behalf that the soft solder deposits on the broken stems amounted to clear evidence of previous repair. In evidence Dr Rollins agreed that suggestions to the contrary in the Russian and French metallurgical reports upon which Mr Kamidian had thitherto relied were “complete nonsense”. Dr Rollins is an experienced forensic metallurgist who was candid in his evidence although in preparing his first report he allowed himself to be drawn into speculation about matters which fell outside his area of expertise. It is also unquestionably the case that whilst Dr Rollins is well qualified and experienced in matters of metal failure analysis and corrosion, his experience is very largely in marine and other heavy or relatively heavy engineering applications. It was perhaps because of this that Ms Padfield felt obliged to mount a sustained attack upon Dr Bennett’s qualifications and experience and thus her competence to give evidence upon the matters in dispute. However that may be, the longer Dr Bennett gave her evidence the more it became clear that it would be difficult to find a person better qualified to comment on the nature and age of damage to an antique metal artefact. It is true that Dr Bennett is not and does not describe herself as a metallurgist. Dr Bennett is an archaeo-metallurgist with a doctorate in ancient metallurgy, a combination as she explained of regular metallurgy and ancient technology. In particular she has extensive learning and experience in the manner in which archaeological and historical metals deteriorate over time. She also has great experience in conservation. The crucial question here was not so much how the fracture to the stems occurred, the mechanism of which was not in doubt and involved no sophisticated analysis. The crucial question was rather when the fractures had occurred, as to which the evidence of the nature of the fracture surfaces and the surrounding areas was critical.[56]The two stems, the two-bud stem and the single bud stem, were originally attached to the main stem. They had broken off near their base but above the point of original attachment. It was Dr Rollins’ view that in light of the distribution of the solder on the fractures it was quite clear that the solder could not have supported the two stems. This coloured his entire approach. He concluded therefore that the attempted repair could never have been effective, so that it cannot have been in place prior to the dismantling of the exhibition at Wilmington and the preparation of the clock for its return journey. Dr Rollins’ point was that there was no solder present on the fracture surfaces and that the amount of solder which could have been bridging the fracture surfaces was minimal so that the repair was simply too flimsy to support the stems. Dr Rollins also considered that had the solder repairs been in place before 2000, somebody must surely have seen them and yet they had never been reported upon. Finally Dr Rollins thought that the forces which broke the bud on the outward journey must inevitably have been sufficient to break the two branches if they had previously been repaired as described and if, as he thought unlikely, the repair had been sufficiently robust to hold the branches in place thitherto.[57]In my judgment Dr Rollins’ approach was flawed. Firstly, so far as concerns the fact that no-one had, so far as is known, reported on the soft solder repairs prior to 2001, little is known as to the thoroughness of such inspections as may have taken place. Neither the number scratched on the clock and alleged to be an inventory number nor the markings thereon alleged to be part impressions of a Fabergé hallmark and a St. Petersburg assay mark were reported on by Sotheby’s in 1991. In any event, as Dr Rollins came very fairly to accept, when the two bud stem and the single bud stem were attached to the main stem in the floral spray neither the joins in the stems nor the soft solder deposits would have been visible to the naked eye. These features were situated at the very bottom of the stems and would have been hidden by the surrounding leaves and on anyone’s case the difference in colouration between the gilding and the solder is not marked. There would have been no reason for anyone who did not know that a fracture had occurred to have been looking for these features. Dr Rollins thought that the solder could have been seen with a 5x magnification lens although leaving aside the point that one would need to be looking for it I thought that he underestimated the difficulty of focussing such a hand-held lens on the areas of the fractures in circumstances where the floral spray is intact. As Dr Bennett explained, a hand-held lens has little depth of field and it is necessary to hold the object under inspection close to the lens in order to focus on the area of interest. The hand-held lens could not have been introduced into the floral spray so as to permit an effective examination.[58]Secondly, in my judgment Dr Rollins’ view was coloured by his failure properly to appreciate the orientation of the fractured stems relative to the main stem. This was illustrated by a sketch which helpfully he drew and which became page 74A of Bundle 8. Naturally I do not suggest that Dr Rollins intended this sketch to be an entirely accurate depiction. Nonetheless, it was in my view plain both from the sketch and from Dr Rollins’ evidence that he had failed properly to appreciate or to take into account that at the point of fracture the two broken stems were only just beginning to diverge from the main stem with which they were running virtually parallel. Although it was accepted that impurities on the actual fracture surfaces themselves had repelled the solder, Dr Rollins agreed that there was evidence of a collar of solder around the stems in way of the fractures. This collar had the capacity to support and to hold in position the stems in two ways. Firstly, the collar around the reverse section of the fractures supported the upper portion of the stem by connecting it physically to the stem stub in what I might call the vertical as opposed to the horizontal plane. Secondly, because the attitude of the detached or semi-detached stems was at this point virtually parallel with the main stem, the solder had the ability to attach the detached (or semi-detached) stems to the main stem, creating a bridge or splint between the two. There was therefore in my judgment a far greater prospect of the repair being effective to hold the stems in place than Dr Rollins appreciated, notwithstanding the failure of the solder to wet the fracture surfaces.[59]Furthermore there was present a yet further feature which militated in favour of the likely success of the repair to the two bud stem. At one time it was common ground that the fracture here was generated by two cracks which formed opposite each other, one from either side of the oval section, no doubt in consequence of the flexing of the stem back and forth in routine cleaning. It remained common ground that there was present in the silver stem a narrow ridge, approximately one-third of a millimetre wide, which was the last part of the fracture to separate. Dr Bennett thought that the soldering operation on the two bud stem was probably undertaken before or immediately after the central ridge gave way. If the soldering had been attempted prior to the ridge giving way, in recognition that sooner or later the already damaged but not wholly fractured stem would be likely finally to part, the presence of the collar would have afforded to the stem extra support over and above that which it received from the surviving ridge.[60]A further feature of the ridge on the two bud stem, accepted to be the last part of the material to fracture, was that it was the only area of the fracture surfaces which was not contaminated with impurities. These impurities included metal corrosion but consisted of, primarily, carbon, associated with silica, aluminium, potassium and magnesium. The carbon-rich deposits were particulate and would not derive from placing the object in a smoky room. These constituent parts are consistent with their deriving from wood ash, historically and still sometimes today used as a silver cleaner. The presence of large quantities of such contaminants on either side of the ridge is consistent with a historical and gradual development of cracks propagating from either side of the stem into which cracks over time the carbon from the cleaning materials was able to penetrate.[61]Dr Bennett also considered that the physical appearance of the soldered repairs, the overlying patina, and the corrosion deposits present on the surface of the soft solder, suggest that the soft solder repairs were undertaken a considerable time ago and not in the last ten years. Her academic background, experience and conservation work rendered her uniquely qualified to express such a view with authority. Dr Bennett pointed out that examination of the surface of the single bud stem adjacent to the fracture which joins the main stem shows that the lead-tin solder, which was originally a shiny silvery colour, has corroded to a dull dark grey matt crystalline material. This type of alteration would not be expected to occur over a short period of ten years. Furthermore in whatever was the last incident of damage, solder attached to the main stem had been pulled away, exposing some fresh solder which was shiny and silver in colour. The appearance of this freshly exposed solder is in complete contrast to the surface of the solder on the single bud stem and the two bud stem which is tarnished and is covered in a grey corrosion layer. One would not expect repairs undertaken in the last ten years to be covered in such a dark grey corrosion layer. Over prolonged periods the lead in lead-tin solder forms lead carbonate. This alteration process would not occur in the short term and would not be expected on a recent soldered repair less than ten years old. Analysis of the composition of the soft solder found 73% tin, 16% lead and 11% oxygen. This ratio is attributed by Dr Bennett to corrosion of the lead-tin alloy over time. Although challenged in cross-examination her evidence on this point was I thought convincing. Indeed Dr Rollins had no convincing answer to any of these points. In any event for the reasons I have given I prefer Dr Bennett’s evidence on this aspect.[62]Finally, Dr Rollins had not been fully instructed or at any rate had not fully understood the difference between the packing arrangements on the outward and on the return journey. As I have already set out at paragraphs 12, 13 and 19 above there was one significant difference, viz that on the outward journey the presentation box was packed into a large airfreight crate along with other pieces, thereby lessening the movement of the clock within the box. On the return journey, packed into a small albeit foam-lined crate, it is entirely possible that the clock was subjected to much greater forces. It was agreed that the bud had broken at its weakest point, where hard silver soldered to the branch. The fracture occurred across the silver soldered junction between the bud and the stem. It was also agreed that the bud appeared to have broken off in a single stage, implying a single jolt or knock which resulted in failure at its weakest location. There is no basis upon which it can be asserted that the jolt or knock sufficient to cause this damage must necessarily also have caused the two stems to become detached. Although the clock was free to move within its case on both outward and return journeys, it was actually more at risk on the return journey.[63]For all these reasons therefore I conclude that at some stage in the life of the clock, probably substantially before it was sold at auction in 1991, but at all events substantially prior to 2000, the clock had sustained damage in that the two stems had become detached or almost detached and a soft solder repair had been effected either with a view to reattaching the stems or with a view to providing extra strength at the site of a partial fracture. The fractures are likely to have been caused by the flexing of the stems caused in routine cleaning. Whilst it is the expert evidence that has compelled me to that conclusion, it is a conclusion which common sense tells one is inherently likely to be correct. It is also a conclusion which is overwhelmingly more likely to be correct than the suggestion that the stems were broken for the first time, after the exhibition, by Broughton or by those for whom they were responsible, and that not only was the occurrence of the damage dishonestly suppressed but also a cynical decision was taken to expose the clock to additional peril on its return journey in an attempt to make it appear as if it was during that journey that the damage must have occurred. The return packing arrangements, like the disappearance of the Polaroid photograph of the clock alone amongst the photographs taken of the Kamidian collection items at the time of compilation of the Condition Reports, are likely in my view to have derived from error, confusion and inefficiency rather than from conspiracy.[64]It was I think common ground, and in so far as it was not I find, that if the two stems had been the subject of earlier repairs then neither their detachment in 2001 nor the earlier detachment of the bud has given rise to depreciation in value of the clock over and above the cost of repairs. The same is equally true of the alleged “slant” damage, to which I next turn.

The slant damage

[65]It is a curious feature of the case that, on the unpacking of the clock on its return to London, none of Mr Kamidian, Mr Fairley or Mr von Solodkoff noticed or remarked upon any slant damage. It was only after Mr Fairley had advised Mr Kamidian of Plowden & Smith’s view that there was evidence of earlier repairs that Mr Kamidian, at his subsequent meeting with Ms Giles and Mr Hill, pointed out that there was, in his view, a slant or lean to the clock and asked for reference to this feature to be made in the report. It seems overwhelmingly likely that it was Mr Kamidian himself who suggested that this was probably due to an impact.[66]The evidence about the slant and its cause was limited. At the beginning of his first report Dr Rollins included a photograph of the Dr Metzger Egg Clock taken in 2001, his caption to which reads:
“The Fabergé Egg, in 2001, showing the floral bouquet at the top slightly tilted relative to the plinth, with the broken sprigs missing.”
Then, in the body of the report, when dealing with the fracture of the bud in the period July to September 2000, Dr Rollins said this:
“Technically, the results indicate that the bud was pushed inwards and upwards for some presently unknown reason, with sufficient force to bend its stem and break it off. This force had to be resisted in order for the failure to occur, and it must have been resisted by the stem of the sprig to which the bud was attached, i.e. the single-bud sprig. Whereas the force to break the bud stem may have needed only to be small, this does not necessarily mean that the force on the stem was small, as whatever applied the force could have been resisted not just by the bud but by other features at other positions on the sprig, which did not break off at the time. There is in fact evidence to support this. For instance, during the Experts’ Joint Inspection on 13 November 2007, further partial fractures in this sprig were observed. A stem close to the fractured stem of the sprig was found to be cracked halfway through and, further up, a longitudinal crack in the silver solder between two parallel stems was observed. These secondary cracks are consistent with a relatively significant force having been applied to the sprig which obviously has direct implications with respect to the fractured stem of the single-bud sprig itself, which are discussed later. Furthermore, and perhaps more significantly, the whole Egg was moved to one side at the top by the force causing the slant which can be clearly seen in figure 1.”
I am not sure that Dr Rollins was asked any questions about this aspect during his oral evidence. However in her Supplementary Report Dr Bennett included photographs of the two secondary cracks to which Dr Rollins had referred. In the body of her report she said this:
“Two other cracks are also visible on the Single Bud Stem. Because of the geometry involved, it was not possible to examine the internal surfaces of the these cracks but examination under the microscope suggests that they are not recent.”
She included photomicrographs showing the lateral and longitudinal crack in the Single Bud Stem. I am not sure that Dr Bennett was asked any questions about this feature of the damage during her oral evidence either. It is unclear whether the original Plowden & Smith repair estimate included the repair and re-gilding of these cracks.[67]The only evidence which directly addressed the extent of the slant and the question whether it had been present before 2001 was that of Mr Kevin Smith, now the Managing Director of Plowden & Smith, himself an accredited conservator/restorer. He examined the clock in November 2007 and observed that, on partial reassembly, a tilt was apparent. A number of sections of the clock were misaligned. The base, gilded foot and gilded cup sections looked to be in line. The polished green stone body, holding the clock mechanism, at the joint with the cup was two or three millimetres higher on the right-hand side than on the left-hand side. The gilded ring below the numerical collar was also misaligned. The top section above the numerical ring appeared to be correctly aligned with itself. The gilded decoration that is over the surface of the green stone body looked to be in line because it is independent of the stone body. The difference in the design of the gilded decoration on each side of the clock visually magnifies the tilt as it is higher on the left than on the right. Mr Smith gave it as his opinion that if the clock were dismantled and then reassembled, bedding in each section correctly, the tilt would be resolved. He concluded that making this repair would not affect the value of the piece, and that the estimated cost of the realignment would be £800-£1200. He also inspected photographs of the clock taken prior to its being sent to America in 2000, two of which came from the catalogue to the “Fabulous Epoch of Fabergé Exhibition” in 1992. Although not putting himself forward as an expert in projective geometry, he thought that the misalignment was equally evident from these images. Whilst recognising my own limitations, I think that he is probably right. Indeed I think it possible that the discrepancy in height of the polished green stone body at the joint with the cup to which Mr Smith refers in his report is visible in the photograph in the Sotheby’s 1991 catalogue. Mr Smith also gave it as his view, which I regard as simply common sense, that an impact of sufficient force to cause the slant in the clock would be likely to have caused far greater damage (by which he meant I think obvious damage) to the fragile floral spray than simply the detachment of a single bud. Mr Kamidian’s reassembly of the clock from its constituent parts when showing it to the court before the trial began demonstrated that reassembly is not straightforward, particularly in the absence of appropriate tools. The scope for the introduction of misalignment through inexpert assembly is considerable. However that may be, Mr Kamidian has failed to satisfy me that the slant was introduced in consequence of the handling of the clock whilst it was lent for the purpose of the Wilmington exhibition, still less that it was another consequence of the incident which caused the parting of the single bud.[68]That being the case there is obviously no depreciation claim arising out of the circumstance that the clock is in some respects misaligned. It has not been proved that any Defendant is responsible for any misalignment. Even if it had been, the misalignment could easily be resolved without affecting the value of the piece over and above the cost of realignment.

Conclusions on quantum issues generally

[69]I should make clear that even had I concluded that the clock had not been the subject of previous repairs to the stem fractures, still I would have been unable to conclude that Mr Kamidian could maintain against a party liable therefor a claim for depreciation in value. The cost of repairing the damage to the bud and to the two stems would have been insignificant. Mr Smith updated Plowden & Smith’s 2001 figure of £740-£780 to £920-970, exclusive of VAT, carriage and insurance. Mr Kamidian adduced no evidence as to the cost of repairs. His expert witness on depreciation was his friend, Mr Christopher Martin-Zakheim, a Director and one of the two principals in Iconastas Limited, dealers in Russian antiques including Fabergé items. It was Mr Martin-Zakheim’s address which appears on the Loan Agreement, to his evident surprise when he discovered it for the first time in the witness box. By way of a somewhat opportunist submission Ms Padfield attempted to rely upon a throwaway remark by Mr Martin-Zakheim to the effect that an immaculate repair to the Dr Metzger Egg Clock might cost of the order of £20,000. This was I am afraid a hopeless attempt to plug a gap in the evidence. Mr Martin-Zakheim was not giving it as his considered opinion that it would cost of the order of £20,000 to repair the damage. He was never asked to consider the cost of repair. In the context of a question from me about depreciation, he gave an answer about the contemporary market for Russian art, in which he included the figure of £20,000 “for what would be an immaculate repair” simply because he had a few minutes earlier been shown Christie’s estimate, or more accurately London-based restorer David Newell’s quotation, of £20,000 for the cost of repair to the Rothschild egg sold in November 2007. In fact this quotation is only for repair to the mechanism, and not for repair to some other minor damage to the clock noted by Christie’s in their condition report, although I doubt if Mr Martin-Zakheim appreciated this from his brief perusal of the copy supplied to him in the witness box. It was an unfortunate feature of Mr Martin-Zakheim’s evidence that he had been supplied, in advance both of preparing his short report and of giving his evidence, with only one or possibly two pieces of documentation, one being the report of the French metallurgists upon which reliance was no longer placed and which in any event he had not read. However that may be Mr Martin-Zakheim was plainly not giving evidence to the effect that he considered that the repairs to the Dr Metzger Egg Clock would cost £20,000. Interestingly he had in fact only a few minutes earlier in his evidence described the quotation for the repairs to the Rothschild egg as “enormous”. Ms Padfield also made the point that the type of repair for which Plowden & Smith quoted, soldering and re-gilding, was precisely the type of repair which the United States conservator Carol Aiken had deprecated, when quoting for repair to the bud damage, since the application of heat could melt original materials or alter their colour. That may be so, but I have no other evidence of the likely cost of repair to the two detached stems. Carol Aiken said that repair to the single bud using a small wire dowel plus adhesive would be completed within one day of her work, for which her charge-out rate was then US$700 per day plus expenses. Even if I assume, contrary to what is I think realistic, that repairs to the two stems as well as the single bud would take three days of Miss Aiken’s time, still the cost is modest. There is of course no compelling reason why any defendant herein should, if otherwise liable, pay more by way of damages than what would have been the cost of repair in 2001. It has been the choice of Mr Kamidian or those who may stand behind him to defer repairs during the interim period. Doing the best I can, and making an assumption that Mr Kamidian would have had the clock repaired in London and that he would have had to pay and could not have recovered VAT, I assess the recoverable cost of repair of the damage to the bud and the two stems at £1,000. This is effectively Plowden & Smith’s 2001 figure, rounded up. I can see no reason for substantial departure from it. I was given no materials on the basis of which I could add a figure for carriage and insurance associated with the repair, these items, like VAT, being excluded from Plowden & Smith’s estimate.[70]By any standards the cost of repair is insignificant in relation to the alleged value of the clock as a Fabergé piece and it is relatively insignificant in relation to its value even if not of that provenance. Mr Kamidian’s only evidence on depreciation came from Mr Martin-Zakheim. That evidence was confused, because Mr Martin-Zakheim failed properly to focus on depreciation attributable to the damage as opposed to depreciation caused by rumour and innuendo generated or arguably generated by the current litigation. Once asked to ignore the effect of rumour and innuendo, and to concentrate upon the depreciation caused by the damage in question, assuming it to be capable of a proper repair, I am not sure that Mr Martin-Zakheim contended for any measurable depreciation in value. His answers were not always responsive to the questions put to him. There was also the difficulty, which he very fairly pointed out, that the market in Russian art has to some extent been transformed over the past few years by the interest and involvement of extremely rich Russian collectors. It was therefore difficult for Mr Martin-Zakheim to put himself back in time seven years to assess what the situation would have been in 2001. I did not understand him to seek to support the 40-50% depreciation figure quoted in his report as being a realistic appraisal of depreciation caused by the damage alone, measured as at 2001. It was “very difficult to say”. This is not compelling evidence on an issue on which Mr Kamidian has the burden of proof. I found compelling the evidence of Mr Dale on this point. Mr Dale is a dealer specialising in Fabergé and Russian objects who was called as an expert witness by underwriters. His CV and a proffered description of his publications were castigated by Ms Padfield as being intended to mislead. I agree with Ms Padfield that it is unfortunate that Mr Dale should have said that he had lectured on Fabergé items at Cambridge University. This gave the impression that the relevant lecture or lectures was or were given under the auspices of the university, either in connection with undergraduate or post-graduate study or as a guest lecturer. In fact, it was a lecture to the British Gemmological Society which happened to be meeting on Cambridge University premises. The statement was on one reading literally correct, but I agree that on its natural interpretation it was misleading and I was not altogether convinced by Mr Dale’s implicit protestation that it had not occurred to him that it could be read in that misleading sense. It was also true that an article written by Mr Dale which he described as being about Russian hallmarking might more accurately have been described as an article about the significance of the absence of hallmarking. Mr Dale came across as a somewhat prickly character who did not take kindly to his opinion being challenged. This did not detract from the fact that he had significant relevant experience in this specialised market. On the whole he gave his evidence with care and authority. On this point I found his evidence, buttressed as it was with actual examples, particularly compelling. He drew a distinction between damage that is significant and damage which is insignificant. That is not a crude comparison between large and small but rather relates to the nature and extent of the damage. Damage such as cracked enamelling on an egg is significant damage which affects its value. Defects in a clock mechanism or missing or broken parts could however be categorised as insignificant. Here the repairs required were small and moreover would be concealed from view. Mr Dale pointed out that there are many art objects that have been restored where the restoration does not affect the value of the piece in the market. It is expected that damage occurs to delicate items. Most Fabergé items appearing at auction have something wrong with them. He pointed out that the market value of the Rosebud and Rothschild eggs did not appear to have been adversely affected by damage, which in the former case was perhaps more significant than in the latter. I can well understand that in 2001 some irreparable damage to the nephrite body of the clock or the enamelling could have led to measurable depreciation in value, although in today’s market I doubt if that is necessarily still true. However damage which is not to the main body but which is to metal components which can be easily and effectively repaired at minimal cost in a manner which it will be impossible to detect with the naked eye falls into an altogether different category. The piece can be, in Mr Dale’s terminology, both restored and stabilised. I am not satisfied on the basis of the evidence which I have heard that the damage under consideration i.e. the bud and stem damage would, after proper and expert repair and restoration, have led in 2001 to a depreciation in the market value of the piece, on the assumption I make that it would have been sold as a generally accepted and authenticated Fabergé item. On the basis of the evidence I have heard and making the same assumption there would in my judgment be no depreciation in value in today’s market.[71]Ms Padfield not unnaturally relied upon the indications as to possible depreciation in value given by Dr von Habsburg and Mr von Solodkoff in 2000 and 2001, to which I have referred in paragraphs 16 and 21 above. Neither Dr von Habsburg nor Mr von Solodkoff was ever actually asked to carry out a formal appraisal of the piece with a view to giving a considered view on depreciation. Mr von Solodkoff never saw, or did not consciously see, the bud damage alone, as opposed to the bud damage together with the two separated stems. He proffered no opinion on depreciation in his witness statement beyond confirming that he and Dr von Habsburg had discussed briefly at the opening of the Exhibition that the loss in value consequent upon the severed bud would be in the region of 5% at most. Beyond confirming that he had said what he was reported to have said in 2001, Mr von Solodkoff was not asked in evidence to elaborate upon his reasons for so saying. Dr von Habsburg never saw the clock after the two stems had broken away. He proffered no opinion on depreciation in his witness statement. He was asked in cross-examination by Ms Padfield, after he had already been cross-examined by Mr Neish for underwriters and by Mr Kimbell for Mr von Solodkoff without this topic being raised, whether he would agree with the view expressed by Mr von Solodkoff in 2001 that depreciation arising out of the bud damage and the fracture of the two stems could be in the region of 30-50%. In reply Dr von Habsburg cast some doubt upon Mr von Solodkoff’s acquaintance with the sort of work which involves assessment of damage and depreciation. He disagreed with Mr von Solodkoff’s assessment. In the case of new damage his figure, in contrast to that of Mr von Solodkoff, “would have been probably more in the region of 15-20%”. Older damage being repaired by invisible repairs, not visible with the naked eye, “would not detract from the value of a piece whatsoever, or minimally, 5% or less”. Nobody sought leave further to cross-examine Dr von Habsburg, it being thought no doubt that Mr Kamidian’s expert evidence on this aspect had been that of Mr Martin-Zakheim to which Mr Dale for underwriters had responded. The court is placed in a somewhat difficult position. On the one hand it would be foolish to ignore Dr von Habsburg’s undoubted expertise in these matters. On the other hand he was not the witness called by Mr Kamidian to support his case on this point and he was never in fact asked to produce a reasoned justification for adopting any depreciation figure in the event of it being concluded that the piece is by Fabergé. In the light of my earlier conclusion on the probable age of the soft solder repairs this dilemma is of course academic. If I had to resolve it, I would conclude that it would be unsafe to prefer this untested and, with respect to him, relatively unconsidered evidence of Dr von Habsburg to the considered evidence of Mr Dale contained in two carefully prepared reports which was unshaken by cross-examination. The more I have thought about this point, the more it has seemed to me counter-intuitive that modern invisible repairs to metal components such as this floral spray can really detract significantly from the market value of so highly prized a piece as the clock on this hypothesis is, viz a Fabergé egg clock of not just Imperial quality but which was itself an Imperial gift, albeit to a commoner. Certainly the evidence of both Mr Martin-Zakheim and Mr Dale suggests that in current market conditions there would be no such diminution in value. It seems to me unlikely that the position would have been so very different in 2001. Happily I do not need to grapple with the question whether, having retained the piece since 2001 and thus reaped the benefit of any change in market conditions, Mr Kamidian could, if otherwise entitled to recover, recover damages by reference to a depreciation in value crystallized as at 2001 notwithstanding no such loss has in the event been suffered, nor will be. No evidence was directed to the question what if any depreciation in value has been caused by the damage if the assumption to be made is that the piece is not by Fabergé but is rather, for example, a late 19th Century French or Austrian clock. It is difficult to imagine that the depreciation in value could on this basis be more than de minimis.

Bailment

[72]I have already summarised at paragraph 33 above some of the terms of the standard form Broughton Loan Agreement. It is convenient here to set out in extenso the terms which are of relevance to the question whether either Mr von Solodkoff or Dr von Habsburg either accepted or by law or by necessary implication had imposed upon them the duties of a bailee. The Loan Agreement included the following terms:
“5. … The Borrower shall install the Exhibition and the object(s) described herein in a secure, environmentally sound environment. Attachment B hereto is the Standard facility Report for the first venue of the Exhibition, the First USA Riverfront Arts Center in Wilmington, Delaware. The Standard Facility Report for Venue 2 will be forwarded to the Lender as Attachment C immediately upon determination of such Venue. 6. Object(s) to be Loaned per this Agreement: See Attachment A for description of object(s) and insurance values. Lender agrees to provide the object(s) described herein to the Borrower for the subject Exhibition for the dates indicated. Lender further agrees to provide the object(s) described herein at least three weeks prior to the opening of the Exhibition in Venue 1 and Borrower agrees to return the object(s) within three weeks after the close of the last venue. 7. Insurance: Borrower shall, at its expense provide adequate and appropriate all-risk insurance for the object(s) described in Attachment A in the amount indicated. Borrower shall provide appropriate certificate of insurance to the Lender at least thirty (30) days prior to the shipment of the object(s) to the Borrower. 8. Packing and Crating of Object(s): When and if necessary, Borrower shall, at its expense, arrange for and provide appropriate and adequate packing and crating of the object(s) described herein. 9. Shipment of Object(s): Borrower shall, at its expense, arrange for and provide appropriate and adequate secured shipping arrangements for the object(s) described herein.”
[73]I have already set out at paragraph 39 above my findings as to what Mr von Solodkoff and Dr von Habsburg explained to Mr Kamidian about the arrangements for the Exhibition, and what Mr Kamidian knew and understood. I have concluded that Mr Kamidian made with Broughton a Loan Agreement including the terms set out above. In my judgment the claim against Mr von Solodkoff and Dr von Habsburg in bailment cannot survive these findings. I deal first with the position of Mr von Solodkoff.

Mr von Solodkoff

[74]In my judgment there was no bailment to Mr von Solodkoff constituted by the mere facts(a) that on 31 March 2000 Mr Kamidian left the premises of the London Safe Deposit before Mr von Solodkoff did and(b) that Mr von Solodkoff had a key and access to the London Safe Deposit whereas Mr Kamidian did not. In Chitty on Contracts, 29th Edition, at paragraph 33-003 there appears the following passage:
“Bailment and consent The contractual analysis of bailment was replaced by an analysis of bailment which sought to explain it in what might be called consensual terms. Thus Pollock and Wright famously stated that: ‘Any person is to be considered as a bailee who otherwise than as a servant either receives possession of a thing from another or consents to receive or hold possession of a thing for another upon an understanding with the other person either to keep and return or deliver to him the specific thing or to (convey and) apply the specific thing according to the directions antecedent or future of the other person’.”
Although as the learned editors point out the attempt to explain bailment in entirely consensual terms has been overtaken by events, and consent of the bailor may not be necessary, this short passage contains within it at least three reasons why there came into existence between Mr Kamidian and Mr von Solodkoff no relationship of bailor and bailee. ‘Any person is to be considered as a bailee who otherwise than as a servant either receives possession of a thing from another or consents to receive or hold possession of a thing for another upon an understanding with the other person either to keep and return or deliver to him the specific thing or to (convey and) apply the specific thing according to the directions antecedent or future of the other person’.”[75]First, Mr von Solodkoff did not receive the Dr Metzger Egg Clock into his own possession. Any fleeting physical custody of the clock which he may have had either whilst Mr Kamidian was present or after his departure was mere handling rather than a transfer to him of possession. The same is true of any such fleeting physical custody of the clock which Mr von Solodkoff may have had when Constantine collected the goods on 26 July 2000. The case is in that regard similar to Lowenstein & Co. Limited v. Durable Wharfage Co. Limited [1973] 1 Lloyd’s Rep. 221. The clock was merely handled by Mr von Solodkoff for the temporary purpose of placing it into safe storage prior to its shipment to the USA – cf. the discussion by Rix LJ of handling falling short of a transfer of possession in Lotus Cars Limited v. Southampton Cargo Handling plc, the “Rigoletto” [2000] 2 Lloyd’s Rep. 532 at page 540. Rix LJ there points out that the reason why the stevedores in Midland Silicones Limited v. Scruttons Limited [1962] AC 446 were not bailees “whether sub, bald or simple” (see per Viscount Simonds at page 470) is because classically stevedores handle goods for a temporary purpose which falls short of their acquiring possession. It is true that Mr von Solodkoff had since October 1999 rented space at the London Safe Deposit for the purpose of collecting there items for the Exhibition. However he made those arrangements on behalf of and at the expense of Broughton. It was inherent in the standard form Broughton contract that if a lender provided an object prior to the opening of the Exhibition, as the lender agreed to do at least three weeks prior to the opening, Broughton would at its expense arrange for and provide adequate secure storage. Mr von Solodkoff was entitled to reclaim expenses from Broughton and there is evidence that he did so. Although there was no actual evidence as to who paid the London Safe Deposit, I have no doubt that if Broughton was not invoiced directly, as happened in relation to some expenses, e.g. the photography carried out in connection with condition reporting, then Mr von Solodkoff will have sought reimbursement from Broughton. His entitlement to recover his expenses is set out in the document listing his responsibilities as sent to him by Dr von Habsburg on Broughton’s behalf as I described in paragraph 8 above. That document provided, in full:
“RESPONSIBILITIES FOR ALEXANDER VON SOLODKOFF AS CO-CURATOR OF FABERGÉ 2000 • arrange with Valentin Skurlov his providing new information in Russian archives concerning 1900 exhibition & Moscow branch. Skurlov to provide article on a Fabergé-related subject. Skurlov to suggest subject. • open negotiations with Kremlin armoury regarding loans (list provided by GvH). Broughton to follow up. • arrange loans chiefly from Germany and clients of Ermitage (to include list provided by GvH, others to be agreed) • provide article for catalogue AvS to be paid $12,000 plus agreed travel & out-of-pocket expenses.”
AvS to be paid $12,000 plus agreed travel & out-of-pocket expenses.”[76]Secondly, as in the Lowenstein case, Mr von Solodkoff did not agree to take possession of the clock, to look after it and to return it. He assumed no responsibility at all. Mr Kamidian clearly understood that the clock would simply remain at the London Safe Deposit until, pursuant to arrangements made by Broughton, it was collected for packing and transportation. Mr von Solodkoff might play some intermediary role in relation to those arrangements but he undertook no responsibility in connection therewith. The bailee’s consent is fundamental to bailment. “The duties of a bailee arise out of the voluntary assumption of possession of another’s goods” – see per Mance LJ in East West Corporation v. DKBS 1912 [2003] 1 Lloyd’s Rep. 239 at page 248, paragraph 24 of the judgment.[77]Thirdly, although possibly this is simply another way of putting the second point, for the purposes of Pollock and Wright’s formulation of the law Mr von Solodkoff is in my judgment to be regarded as a servant of Broughton. Of course there was no master and servant relationship between them – he was an independent contractor, paid a fee for his services. He was acting as an agent on behalf of Broughton. It is true that agency of an independent contractor is not incompatible with bailment, and that bailees are probably very often agents – see per Rix LJ at page 539 of his judgment in Lotus Cars. The situation is however far removed from that under consideration in that case. There the bill of lading contract with Wallenius contemplated no involvement of the carrier in the pre-loading operation. The stevedores, SCH, received the cars seven or eight days before they were due for shipment on board the “Rigoletto” and moreover did so under their own issued terms and conditions which included a lien clause. SCH will no doubt have had, and have been expected to have, their own liability insurance. In the commercial sphere there is, as Rix LJ pointed out in the passage to which I have already referred, no need to extend Pollock and Wright’s exception to agents. However the arrangements with which I am concerned were most definitely not in the commercial sphere. Mr Kamidian knew that the role of Mr von Solodkoff was as co-curator of the Exhibition. Mr von Solodkoff might just as well have been for this purpose an employee of Broughton. An employee obtains mere custody, not possession, of his employer’s goods entrusted to his control – see Chitty, op cit, paragraph 33-003 at footnote 20. However in this non-commercial sphere it makes no sense at all, in my judgment, to suggest that the question whether Mr von Solodkoff assumed a personal responsibility towards Mr Kamidian turns on whether he had a contract of employment with Broughton as opposed to a contract for services. As I have already said it is possible that this point adds nothing to or is in reality the same as the last. Possibly the correct analysis is simply that the rebuttable presumption against bailment is stronger in master and servant cases than in cases of principal and independent contractor.[78]However even if I am wrong thus far and there was an initial bailment to Mr von Solodkoff, still in my judgment it is quite impossible to spell out of the circumstances in which that bailment was created an intention that Mr von Solodkoff’s duties as bailee should continue after the goods left his possession. In my judgment any bailment to Mr von Solodkoff must have been of the type described by Professor Palmer as “springing” or “substitutional” – see Palmer on Bailment, 2nd Edition, at page 1285. Professor Palmer there gives the paradigm example of a springing bailment, that of someone who agrees to arrange for the transportation of a friend’s goods. Provided he takes reasonable care of them and delivers them to a reputable carrier, his liability for the goods will normally cease as soon as they leave his possession. I agree with Mr Kimbell that, on the assumption that Mr von Solodkoff is to be regarded as having assumed any of the responsibilities of a bailee, his position is not far removed from this paradigm example of a springing bailment. “The critical question is always whether the parties agreed or intended (expressly or impliedly) that the obligations of the intermediate bailee should continue after he has parted with possession to a third party” – see per Dyson LJ, Wincanton Limited v. P&O TransEuropean Limited, [2001] EWCA Civ. 227 at paragraph 14. Professor Palmer identifies four factors which may assist in determining the intention properly to be attributed to the parties: i) The complexion of the ultimate bailment and the proposed manner of its determination. Thus if the parties have agreed that the goods are to be returned to the original bailor by the first bailee, this may be an indication that it was intended that the first bailee was to remain liable throughout any subsequent bailments. The position is otherwise if there is agreement that the goods are to be returned other than by the first bailor or if there is simply no agreement at all as to how the goods are to be returned – see again the Wincanton case at paragraph 14 of Dyson LJ’s judgment. It was never agreed that Mr von Solodkoff would be involved in the return of the clock to Mr Kamidian. He was not involved in making the arrangements for the return of the clock. He was physically present at the return of the clock simply because Mr Kamidian wanted him to inspect the bud damage and hoped that he would provide assistance in his depreciation claim against underwriters. In so far as Mr Kamidian and Mr von Solodkoff ever had any discussion in 1999 or 2000 about what would be the arrangements for the return of the clock after the Exhibition, that can only have been in the context of Mr von Solodkoff explaining to Mr Kamidian that the Broughton standard form loan agreement imposed upon Broughton an obligation to return the objects lent within three weeks after the close of the last venue – see Article 6 of the agreement. ii) The nature of the services undertaken by each succeeding bailee – if on a proper analysis the principal or first bailee has accepted overall responsibility for the performance of a task, albeit with a power to delegate, the mere fact of delegation will not exonerate him. Mr von Solodkoff neither expressly nor impliedly accepted any such responsibility. His duties owed to Broughton were strictly limited, and did not involve making arrangements for packing and transportation of the goods. It is inherently unlikely that, particularly having no relevant liability insurance, Mr von Solodkoff would have undertaken towards Mr Kamidian responsibilities going beyond his duties owed to Broughton, particularly where Broughton expressly assumed such responsibilities owed directly to lenders. iii) The destination and division of the overall reward. It was Broughton who expected to profit from the loan of the item for display in Wilmington, and of course Mr Kamidian, who hoped that the reputation and value of the piece would thereby be enhanced. Mr von Solodkoff received only a very modest fee for his services. iv) Whether a contract comes into existence between the principal bailor and the substitutional bailee – see at footnote 18 on page 1287 of Professor Palmer’s work. Here a written contract was entered into between Mr Kamidian and Broughton on 12 July 2000. Even had I not concluded that the contract was signed by Mr von Solodkoff with the authority of Mr Kamidian, still I would have concluded that in all the circumstances there came into existence an implied contract between Mr Kamidian and Broughton, at latest when on 31 March 2000 he handed over the clock and other items to the London Safe Deposit and signed a document indicating that these items were for “The Wilmington Delaware Exhibition, The World of Fabergé 2000”. I agree with Mr Kimbell’s analysis that Dr von Habsburg’s approval, at the meeting in the Paris bank vault, of the items to be exhibited constituted an offer to Mr Kamidian, made by Dr von Habsburg with the authority of Broughton, to enter into a loan agreement on terms standard in the world of fine art. Mr Kamidian accepted this offer by physically delivering the items for onward transportation to the Exhibition. No doubt Mr Kamidian could effectively have withdrawn from this arrangement at any time because Broughton would have been hard put to prove loss flowing therefrom and any court would probably be reluctant specifically to enforce such an agreement. There is however ample consideration to support the agreement in the shape of the enhancement in value of the clock which Mr Kamidian hoped would be generated. The terms necessarily implied into such an agreement covering questions such as packing, transportation, insurance and return of the goods would closely resemble those contained in the Broughton standard form agreement.[79]For all these reasons any bailment to Mr von Solodkoff can only be of the springing variety. The clock did not suffer damage whilst in the possession of Mr von Solodkoff. I agree with Mr Kimbell that the suggestion that Mr von Solodkoff was the principal bailee in relation to whom Constantine, the carriers and Broughton were all sub-bailees, turns practical reality on its head. The principal party which willingly accepted responsibility for performing through sub-contractors was Broughton. I also agree with Mr Kimbell that the suggestion that Mr von Solodkoff, paid US$12,000 to be a guest co-curator for a large scale commercial exhibition in the United States, scheduled to last one year at two venues, should be personally responsible for any loss or damage suffered by loan items valued at US$3.8 million caused at any time during that exhibition, including the associated packing and transatlantic transport phases, by persons over whom he has no control and with whom, with the exception of Broughton, he has no contractual relationship, is on the face of it an extremely startling proposition.

The claim against Dr von Habsburg

[80]The foregoing is sufficient equally to dispose of the claim against Dr von Habsburg. Indeed his position is an a fortiori case. Dr von Habsburg was at no time in possession of the clock. Mr von Solodkoff was never in possession of the clock, whether on his own behalf solely or on behalf of both himself and Dr von Habsburg. It is true that Dr von Habsburg was named as a co-renter with Mr von Solodkoff of space in the London Safe Deposit and that he was therefore entitled to access to the piece whilst it was stored at that location. That however did not in my judgment amount to possession in the sense necessary to constitute a bailment. Dr von Habsburg did not agree to assume any legal responsibility in relation to the safety of pieces lent to the Exhibition. Ms Padfield attempted to rely upon a single answer given in cross-examination by Dr von Habsburg as an acceptance that he had an overall responsibility to ensure that the items were safe and properly handled while they were in the United States. Read fairly and as a whole, his evidence amounted to no more than an acceptance that he felt an overall moral responsibility for the safety and proper handling of all the items in the Exhibition. Dr von Habsburg was not accepting that he had ever said to Mr Kamidian anything which Mr Kamidian could reasonably regard as an assumption of responsibilities owed to him, and, in fairness to him, I am not sure that Mr Kamidian ever suggested in his evidence that Dr von Habsburg had ever said to him anything out of which such an assumption of responsibility could be spelled.

The claim against Broughton

[81]The claim against Broughton plainly succeeds, however it is formulated. Broughton were in my judgment contractual bailees of the Dr Metzger Egg Clock from the moment it was left at the London Safe Deposit until it was returned to Mr Kamidian at those same premises, albeit they were for some of the time in possession through the medium of agents and/or sub-bailees. Plainly Broughton has not discharged the burden of showing that it exercised reasonable care for the egg clock whilst in its possession. However the bailment was of course on express contractual terms. Broughton was in breach of its contractual obligation to arrange for and provide appropriate and adequate packing and crating of the clock, as explicitly undertaken in Article 9 of the standard form agreement. In consequence of Broughton’s breach of duty Mr Kamidian, whose title Broughton cannot deny, has suffered loss and damage measured as the cost of repair.[82]In consequence the claim against the Second and Fourth Defendants, like the claim against the First Defendant, fails and is dismissed. The claim against the Fifth Defendants succeeds to the extent of £1,000, and there must be judgment for the Claimant accordingly.

Is the Dr Metzger Egg Clock by Fabergé?

[83]In the light of my conclusions it is strictly unnecessary to express a view on the question which occupied a considerable, perhaps the greater part, of the trial, whether the Dr Metzger Egg Clock was indeed made in the Fabergé workshops. However both counsel for Mr Kamidian and counsel for the underwriters urged me to express a conclusion on this point. In terms of the economical disposal of the litigation it is probably sensible that I should address the issue, although I am not sure that it is necessarily in Mr Kamidian’s best interests that I should. I should emphasise, as is in any event obvious, that any conclusion to which I can come on this topic is simply a conclusion formed on the basis of the evidence which has been deployed before me in this trial. Although I heard from a number of people who would be universally recognised by the cognoscenti as qualified to express a view, some of them were to a greater or lesser extent compromised by their earlier involvement with the Dr Metzger Egg Clock in one capacity or another. During the course of the trial a number of other persons were identified whose views, if available, would I think have commanded respect. It would be invidious to name them, although they can easily be identified by reference to the overlap in the lists of acknowledged experts proffered from time to time by each side in an effort, usually, to demonstrate that those relied upon by the opponent party were not so universally regarded. In a case arguably concerned with the provenance of a piece of fine art, I would feel more comfortable in expressing conclusions in that regard had I received a greater body of genuinely disinterested evidence than I did. It is of course possible that Mr Kamidian could have found no-one else to support him, although I should equally have preferred to have heard from a greater body of disinterested persons giving evidence adverse to his interests, assuming that that is what they would have done. There were also aspects of the case which were not, for whatever reason, explored in the depth which I might otherwise have expected. I have in mind by way of example the significance of what was said by Mr Kamidian to be traces of an attempt to impress upon the piece a Fabergé maker’s mark and a St. Petersburg assay mark. On this Mr Kamidian sought at a very late stage in the trial to introduce further evidence as to what could be demonstrated by a specialised photographic technique. I did not allow this evidence to be deployed. For understandable reasons underwriters put forward no positive case as to the manner in or time at which these indentations had been made. The matter remained something of a mystery.[84]For all these reasons it is with reluctance that I embark upon a consideration of the evidence relevant to the provenance of the egg clock. Before doing so it is helpful to identify to what issues it is potentially relevant. Obviously it is relevant to the claim for depreciation, assuming that to be an available claim. As between Mr Kamidian and the underwriters it is relevant to the question whether underwriters can escape the consequences of having agreed for the purposes of the policy that the egg clock had a value of US$2.5 million. That question in turn depends upon whether the underwriters can demonstrate that they were induced to agree that figure or to enter into insurance on those terms by reason of a misrepresentation made on Mr Kamidian’s behalf or by material non-disclosure for which in law he bears responsibility.

Misrepresentation

[85]I have already described at paragraph 38 above how the risk was presented to underwriters as relating to, relevantly, a Fabergé item worth US$2.5 million. It is accepted by Ms Padfield that an implied representation was made that Mr Kamidian honestly believed that the clock was a genuine Fabergé item, having that value. It is not in dispute that that would have been a reasonable and appropriate value to place upon a piece which could reasonably have been expected to be bought and sold on the basis of a consensus of informed opinion to the effect that it had been manufactured in the Fabergé workshops.[86]I am not sure that underwriters’ case at trial entirely corresponded with what they had pleaded in their Defence. At trial they contended as their primary case that it was impliedly represented by Mr Kamidian, or on his behalf, that the clock was manufactured in the Fabergé workshops and correspondingly had a value commensurate with such provenance, i.e. US$2.5 million. Underwriters characterised that as a representation of fact. Proof that the clock is not in fact by Fabergé would demonstrate the falsity of the representation. Alternatively, if it was a representation of Mr Kamidian’s opinion, as Ms Padfield has asserted, it was said by underwriters to have been made in bad faith. Proof that Mr Kamidian did not at the relevant time honestly hold that opinion would demonstrate the falsity of this alternative representation. However this alternative representation was not even underwriters’ secondary or tertiary case. It was their backstop.[87]Underwriters’ secondary case was that there was an implied representation of fact that the clock was by Fabergé in the sense that it was generally accepted by the art world as being an authentic Fabergé egg clock, or that it would be so accepted were the matter put to the test. Objective proof that this was not so would demonstrate the falsity of that representation.[88]Underwriters had a tertiary case. The implied representation was that Mr Kamidian believed that it was generally accepted by the art world that the Dr Metzger Egg Clock is an authentic Fabergé egg clock, or that it would be so accepted were the matter put to the test. Proof that there is or would be no such general acceptance would not prove the falsity of such representation, although it would go some way toward so doing. Whether there is any reasonable basis for a belief is usually relevant to the question whether that belief is actually held. It was however accepted in the light of section 20(5) of the Marine Insurance Act 1906 and the decision of the Court of Appeal in Economides v. Commercial Assurance Company [1998] QB 587 that it is insufficient to prove falsity of a representation of belief simply to establish that there were no reasonable grounds for such belief.[89]It can be seen that it is only if underwriters’ primary case as to the nature of the implied representation is accepted that it is necessary, for the purposes of the claim against them, to consider whether the egg clock is in fact by Fabergé. I do not accept underwriters’ primary formulation of the implied representation made. Whether the clock is by Fabergé is an historic fact which can be determined for the purposes of litigation on the balance of probabilities. However because by definition to be authentic the piece must have been manufactured over 100 years ago, this is incapable of proof by direct evidence in the sense of the evidence of those who actually made it or saw it being made. In the absence of surviving photographic evidence of the manufacture of the piece, as is sometimes available, for example in relation to the Rothschild Egg, authenticity can only be proved by opinion evidence. For that reason a representation that the piece is indeed by Fabergé is I think an implausible representation to have made. A prospective insured would not wish to say that a piece was definitely created by a particular artist if, contrary to expectation, proof that that was not in fact so could, potentially, invalidate the insurance. Underwriters for their part would know that the fact represented was incapable of proof except by weight of opinion. They would be unlikely, I consider, to wish to adopt as the basis upon which they insured an artefact a statement which is difficult either to prove or to disprove and as to which in any event proof is impossible save by way of a value judgment.[90]On the other hand I think it equally implausible that the representation should be regarded as simply one of Mr Kamidian’s honest belief as to the provenance of the piece. The context is very different from that of household contents insurance such as was under discussion in Economides v. Commercial Assurance, where the applicant for insurance was asked on the proposal form to declare that the statements and particulars given on the proposal form were to the best of “his knowledge and belief, true and complete”. In the context of specialised fine art insurance sought by professional exhibition organisers on behalf of collectors and dealers lending pieces for the purpose of showing at an exhibition, it would be a wholly uncommercial and unlikely approach for underwriters to agree an insured value upon the basis of a belief for which there might be no reasonable grounds. Accordingly such an implied representation is irrelevant to the transaction and is not in my judgment properly to be spelled out of the placement.[91]For much the same reasons I think underwriters’ tertiary case is unlikely to be the proper analysis. Any belief relating to provenance for which there may be no reasonable grounds is a wholly unsure foundation upon which to base an insured value, and I can again see no basis upon which either party to the transaction could think it relevant. Furthermore the proposer for insurance of a piece of fine art in such circumstances may not be best placed to form an objective view as to the received wisdom concerning the provenance of the piece. He may be an owner who has rashly overpaid. He may simply be an optimist. He may have no interest in the piece other than to ensure that in the event of damage whilst under loan the owner receives handsome compensation. The subjective opinion of all these persons may be interesting but I cannot see why on so important a matter it should be regarded as relevant, still less determinative.[92]In my judgment in the context of fine art insurance the representation properly to be spelled out of a presentation of the sort which I have described is that there is general acceptance in the art world that the piece is an authentic Fabergé egg clock. That is a simple and straightforward statement of fact proveable simply by establishing that a clear preponderance of informed opinion is to that effect. That in turn involves proof only that an opinion is held, not whether it is right, wrong, reasonable or unreasonable. I recognise that my preferred formulation does not cater for the case, likely in context to be relatively rare, where the matter has simply not been put to the test. That is not this case. Here the egg clock had been auctioned at Sotheby’s in 1991 and had by the year 2000 generated a certain amount of interest. In circumstances where there has been insufficient opportunity for the matter to be put to the test, as for example where a piece has only recently been discovered or achieved prominence, I would not expect any representation of this sort to be unqualified. By definition an unqualified representation carries with it the implication that the piece in question has been sufficiently exposed to consideration by informed persons for a general view to have formed.[93]Notwithstanding my preferred formulation I will however deal also with the question whether Mr Kamidian honestly believed that there was or would be if it were put to the test general acceptance in the art world that the piece is an authentic Fabergé egg clock. Apart from being underwriters’ tertiary case, this formulation would no doubt have represented Ms Padfield’s position had she been prepared or obliged to countenance an implied representation couched in terms of general acceptance as to provenance.[94]As I mentioned above, underwriters have a yet further string to their bow. This is the contention that Mr Kamidian and/or his agents to insure failed to disclose, as they knew, that there were doubts and/or uncertainties about the provenance of the Dr Metzger Egg Clock and, as a result, the true value thereof. This potentially raises a sub-issue as to the capacity properly to be attributed to various of the intermediaries who played a part in the placing of the insurance. It is convenient to defer consideration of that issue until after I have made findings as to the manner in which this piece was regarded in the art world and as to Mr Kamidian’s own knowledge of that view.

The Dr Metzger family tradition

[95]Mr Kamidian says that he was told by someone during the Sotheby’s sale in November 1991 that the clock was put into the sale by the heirs of Dr Metzger. That is obviously not very reliable evidence of itself (by which I do not mean to cast doubt on Mr Kamidian’s account of what he was told) but it may be true and it may be therefore that the family was the source of the information in the Sotheby’s catalogue that the clock was presented to Dr Metzger by the Dowager Empress during his second visit to St. Petersburg “early in 1892”. On a point of detail, the Empress Maria Feodorovna was not the Dowager Empress in either 1892 or 1893. She did not of course acquire this title until the death of her husband Tsar Alexander III in November 1894. The catalogue entry refers also to a book, “Dr Johann Georg Mezger 1838-1909 en zijn tijd [‘and his time’]” by Dr P.J. Kostelijk published by the Leiden University Press in 1971. At pages 80 and 89 this book recounts Dr Metzger’s connection with the Russian Imperial family in these terms:
“Asmodée’s small-minded criticism didn’t stop Metzger’s renown extending far beyond the Netherlands’ borders into the then Europe. His fame had even reached the Tsar of Russia, and in 1886 he was summoned to St. Petersburg in order to treat the Tsarina. On 26 April 1887 Tsar Alexander III appointed him Knight of the Imperial Order of St Stanislaus. … … Especially remarkable was the large number of Russian patients, including Prince Lapouchine-Demidoff, Count Bobinsky and the Russian Minister of Foreign Affairs von Giers, who received treatment in 1891 and who was perhaps the direct reason why at the beginning of 1892 the court physician of the Tsar made another appeal to Metzger to come to St. Petersburg in order to treat the Tsar’s daughter, Grand Duchess Olga. Together with her governess, she had been thrown out of a train during a railway accident which had left her with a curvature of the spine resulting from a growth inhibition of her skeleton. Metzger was collected on 20 January in a specially dispatched saloon car and subsequently moved into Hotel l’Europe. The newspapers at the time reported that the street where the hotel was located was filled with the carriages of patients, who took the opportunity to consult the famous doctor. The stay in Russia lasted approximately one month and the return journey was made via Moscow and Warsaw. In addition to a fee of fourteen-hundred Marks, as a reward he received the highest Russian order, the Order of St. Stanislaus First Class with Brilliants (23 December 1893).”
The book is of course written in Dutch and I have seen only translations of those passages which are thought by the parties to be relevant. However as I understand it the book does not suggest that Dr Metzger returned to St. Petersburg after February 1892 and in particular does not suggest that he returned in December 1893 in order to receive in person his upgraded Order of St. Stanislaus. The date of 23 December 1893 is said to be significant because a Fabergé invoice to which I must in due course refer in more detail refers to the supply of a jadeite clock, for the account of the Tsar rather than that of the Empress, on the previous day, 22 December 1893. Dr Kostelijk’s book therefore does not corroborate the suggestion that the clock was presented to Dr Metzger “during his second visit” which was in January/February 1892. Indeed, the book makes no reference to the clock at all.[96]The Metzger family tradition, if that is what it was, does not of itself suggest that the clock had in fact been manufactured in the Fabergé workshops. In 1991 the invoice to which I have referred above was as yet undiscovered. For reasons which I shall develop I doubt if it relates to the Dr Metzger Egg Clock anyway. I am unsure on what Sotheby’s relied in describing the piece as having been “retailed by Fabergé”. Presumably it was the wooden case, although the description of that is as it seems to me studiedly ambiguous in that the words used could be understood as meaning either “in an original” or “in the original” case, as I pointed out at paragraph 4 above. That the case is a genuine Fabergé maplewood case is not in doubt. However as I mentioned in paragraph 14 above it seems to me tolerably clear that the case is unlikely to have been designed to contain the Dr Metzger Egg Clock. It has been adapted the better to accommodate the Dr Metzger Egg Clock, although not necessarily by Fabergé. Although it fairly neatly encloses the clock, the evidence suggests that it was the Fabergé practice to design cases which offered rather greater protection to the piece carried than does this case to the Dr Metzger Egg Clock. To my mind the association of the egg clock with the case tells against the egg clock having been manufactured by Fabergé. Had the egg clock been manufactured by Fabergé, I would have expected a case designed for the egg clock. Of course such a case may have been lost, or become detached from its original content. However the arrival of the clock at Sotheby’s in the Fabergé case does not to my mind convincingly indicate even that the clock was retailed by Fabergé. It may have been, but equally it may at some stage in its life simply have become associated with a Fabergé box. On the other hand at page 149 of their book Mr von Solodkoff and Dr von Habsburg note that Fabergé did on occasion retail objects made outside his workshops. Mr Dale agreed that this is so, although Mr Skurlov disagreed with this proposition.[97]It is plain that neither the use of nephrite nor the presence of a marked Moser movement were sufficient to persuade the experts at Sotheby’s that this, as they thought, apparently wholly unmarked piece (it is the detachable discrete movement which is marked or “signed”, not the body of the egg clock itself) had been manufactured by Fabergé. Neither is of itself determinative in that regard. There was some inconclusive evidence about an Imperial ban on the export of Russian nephrite, although the evidence suggested that this was(a) ineffective and(b) dated only from 1898. The fact that an item manufactured before 1898, as this item may well have been, contained Russian nephrite, if it did, which could be established only by mineralogical analysis, which has not been undertaken, does not mean that it must have been manufactured at the Fabergé workshops. Others than Fabergé worked in Russian nephrite. As to the movement, it was common ground that Moser supplied movements to companies other than Fabergé. By the 1870’s at the latest Moser had left St. Petersburg and moved to Switzerland. Although not common ground, it was the evidence of Mr Dale, which I accept, that Moser supplied movements to French firms. I can think of no reason why he should not have done. Mr Kamidian’s expert witness Mr Valentin Skurlov did say that he knew of no other pieces of art which would have a Moser mechanism like this one other than those created by Fabergé. That may be so, but it does not convince me that such pieces cannot and do not exist. On the contrary, it seems to me that any manufacturer seeking to make a piece which, consciously or unconsciously, resembled a Fabergé egg clock would be likely to utilise a mechanism similar to that used by Fabergé in egg clocks. There is no reason whatever why such a movement should not have been supplied by Moser to workshops other than the Fabergé workshop. Just as the use of nephrite and the presence of the Moser movement do not in themselves lend support to the notion that the egg clock was made by Fabergé, so too they are irrelevant to the question whether it was retailed by Fabergé. All in all, I am left in real doubt on what basis Sotheby’s described the piece unequivocally as “retailed by Fabergé”.[98]Mr Skurlov has inspected the memoirs of Maria Feodorovna’s Personal Secretary, Fyodor Oom, and the diaries of Alexandra Feodorovna’s Personal Secretary, Count Lamsdorf. These sources confirm that Dr Metzger administered massage treatment to members of the Imperial family in St. Petersburg and that he received gifts of a brooch and some cuff-links or shirt studs, in each case including diamonds, with a value of over 2,000 Roubles. Surprise is expressed in these sources at the extent of Dr Metzger’s fees. There is however no reference to the clock. Likewise, there is no reference to the clock in the records kept in the Imperial Cabinet of items purchased by the Tsar or Empress. It is true that Count Lamsdorf records that the massage treatment given by Dr Metzger to Empress Maria was carefully concealed, perhaps for reasons of delicacy and propriety. That however does not account for the non-appearance in the same record of the full extent of Imperial gifts bestowed upon Dr Metzger. It cannot sensibly be supposed that the purchase and gift of a quasi Imperial Fabergé egg clock would be unknown to the Personal Secretaries of the Empresses, or that they would have any reason to fail to mention it in their memoirs and diaries bearing in mind the detail in which those accounts are written. I agree with Mr Neish that if anything these archival discoveries of Mr Skurlov tend rather to undermine the Metzger family tradition than to support it, while adding nothing which links the clock to Fabergé.[99]Finally at this juncture I should refer to the last paragraph of the Sotheby’s catalogue entry which refers to the Madonna Lily Egg Clock. This is a somewhat enigmatic addition to the description. Again, I am left in some doubt as to why precisely it was included by Sotheby’s. Mr Dale accepted that there are certain stylistic similarities between the Dr Metzger Egg Clock and the Madonna Lily Egg Clock. In his report he put it thus:
“They are both modelled in the retrospective Louis XVI style (popular throughout Europe at the time), they are both clocks and have a bouquet of flowers. However, that is where any similarity ends. One is an Imperial Egg by Carl Fabergé and the other is not. The differences visually are quite obvious to the eye, but need to be stated as differences of quality, intricacy and techniques used. There is no sophisticated guilloche enamel on the nephrite egg and the chasing and engraving are crude not fine. The physical difference is that Madonna Lily egg is marked Fabergé, MP (Chief workmaster Michael Perchin) in Cyrillic. The nephrite clock has no marks. The materials used in Madonna Lily egg are numerous – four-colour gold, platinum, diamonds, chalcedony, yellow guilloche enamel and white opaque enamel. The timepiece in question [the Dr Metzger Egg Clock] has only two decorative elements, nephrite and silver-gilt. The nephrite clock mechanism is by Moser & Co – a Swiss mechanism used by Fabergé and many other manufacturers throughout Europe. The existence of a movement by Moser does not authenticate the piece. Overall the timepiece [the Dr Metzger Egg Clock] appears crude in its execution and lacks the sophistication and number of techniques used compared to the example of the Madonna Lily egg.”
[100]I referred in paragraph 43 above to the catalogue to the 1992 Catherine Palace Exhibition, of which Mr Kamidian was one of the compilers. In an article in the catalogue which Mr Kamidian co-wrote with his fellow organiser and Editor of the catalogue, Dr Vyacheslav Mukhin, under the title “Square Easter Eggs” Mr Kamidian caused photographs of the Dr Metzger Egg Clock and the Madonna Lily Egg Clock to appear symmetrically on opposite pages. The caption to the photograph of the Dr Metzger Egg Clock read:
“Clock with lilies, Imperial Easter Presentation, Fabergé, Master Mikhail Perkhin, St. Petersburg, C. 1892 (cat. 67)”
This caption was disingenuous. Mr Kamidian had no basis whatever for saying that the clock was an “Imperial Easter Presentation”. Nothing in the family tradition pointed to this being an Easter presentation, unless any gift which resembles an egg is to be so described. There was no basis upon which Mr Kamidian could suggest that it was the work of Mikhail Perkhin, unless what was relied upon was the alleged similarity between the Dr Metzger Egg Clock and the Madonna Lily Egg Clock. In the text of the article Mr Kamidian wrote this:
“Last year witnessed an event, not so noticeable but rather typical for the modern silverware market, Fabergé’s in particular. Almost every significant work of the master’s heritage has been the pride and possession of various state or private collections, and rarely changes hands. When any of the objects emerge at auction, it is always exciting for art collectors, antiquarians and all those who value the art of jewellery. In November, 1991, Sotheby’s auction in Geneva was the scene of such excitement, the auction’s experts seemed to add to this frenzy by ignoring the real value of the piece and mystifying both the spectators and the purchasers. This relates, first of all, to one of the finest lots – a timepiece very close in design and size to the famous Imperial Egg of white nephrite by Mikhail Perkhin, called the ‘Madonna Lily Egg’ (1889, the Armoury of the Kremlin in Moscow). In the catalogue, lot 394 is marked in bold print: ‘A timepiece retailed by Fabergé, unmarked, probably St. Petersburg, the movement signed: “Hy, Moser &Co., St. Petersburg, the late 19th Century” ’. The estimation was quite unbelievable: 25,000-35,000 SF, the sum usually given for carved stone animal figurines or wooden picture frames, mass produced in Brighton Beach, New York, or the Okhta region of St. Petersburg. The hammer price of the timepiece was four times higher, 148,000 SF. The timepiece could well make an illustration for a statement often found in publications on Fabergé’s work, namely, that the great master’s pieces need no mark on them. They always exclaim: ‘I’m a Fabergé!’ Aside from that clear announcement made by the appearance of the object, the catalogue gave the timepiece a detailed commentary on its provenance. It stated that Empress Maria Fyodorovna gave the clock to Dr. Johann George Metzger, a Dutch doctor who had been summoned to St. Petersburg to treat members of the royal family after the railway disaster of 1888. Among many interesting and essential details, the commentary also contained the exact date on which the gift was given by the Empress to her healer. It is the year of 1892, the time of Dr Metzger’s second visit to the Russian capital. For those who are further interested in the doctor’s association with the Russian court a reference is given to a list of publications including Grote Winkler Prins Encyclopedie, Amsterdam, 1971. Nevertheless, the value of the clock is best shown by its conception and its meticulous execution. The gift to Dr Metzger was not just a valuable object purchased for royal presentation. The jeweller who took the order made every effort to convey the meaning of the art of healing. He chose the image of a clock as a symbol of fleeting life. The timepiece is urn-shaped and entwined with a snake to symbolise medicine in a delicate and expressive manner. The head of the snake (a symbol of Eternity, Wisdom or Knowledge in many mythologies of the world) pointed to the hours and minutes on the dial-band. The urn-shaped body, a symbol of the Vessel of Life, burgeoning with a festive spray of golden flower shoots, was exquisitely crafted. It is worth mentioning that the symbolic message of the urn, traced back to ancient Greek and Roman Empires, is very close in its conception to the Orthodox and pre-Christian tradition of worshipping the egg as a source of life. It is no mere chance that on Easter day, the day of Our Saviour’s Resurrection, eggs were exchanged to celebrate the victory of Life over Death and to wish each other health and happiness. Every Easter gift belonging to the Russian Royal family was given this symbolic implication. Dr Metzger’s clock, as well as the first Easter egg containing a ‘surprise’ of a golden hen, was the basis for the further development of the theme of well wishing and was later interpreted by each master craftsman individually. Thus, the Easter egg of 1899, a clock by M. Perkhin, is decorated with a bow and Cupid’s golden arrow to replace the exquisitely ornamented snake pointing to hours and minutes. Their decorative effects varied; the first gift was a plastic representation of the deepest gratitude for easing the sufferings of dear ones after the accident, the other embodied the theme of the husband’s eternal love and tenderness to his wedded wife. There is no need to analyze the extraordinary skill involved in the nephrite carving or silver-gilt casting and engraving in order to come to the conclusion that the item is an outstanding piece of art produced by Fabergé’s firm. If, on the other hand, one takes into consideration the experts’ doubts at Sotheby’s about Fabergé’s authorship and the place of the objects manufacture, St. Petersburg, (there seems to be no uncertainty about the date: late 19th century, according to the data given, or circa 1892, in the description of the item) then one should be prepared to accept the fact that the leading master craftsman of the firm, Mikhail Perkhin, was a plagiarist, and Fabergé’s shops, which for many years had been making Easter gifts, stole ideas and developed other artists’ technological novelties. Dr Metzger’s clock had been closely guarded by his heirs for too long; it was never featured in an exhibition, auction, or included in a museum collection where Fabergé’s works were paraded; never was its photograph displayed in an album or study by modern experts in gold creations of the late 19th-early 20th century. This made the clock seem like Cinderella at a royal party. Its appearance didn’t conform to the established etiquette, or, to be exact, to any formula or scheme invented by art critics who try to categorise creative pieces into some framework of their own. The verdict on the clock was thus: ‘Fabergé never made for his royal clientele a pair of eggs with the slightest likeness to one another. When, on the contrary, he worked for other customers, he had to repeat his own patterns. Even his magnificent imagination had its limits’.”
The quotation at the end of that passage is, ironically, from the book (at page 108) written in 1979 by Dr von Habsburg and Mr von Solodkoff to which I have already referred.[101]It is interesting to note that in 1992, three years before the invoice was linked by Mr Skurlov with the Dr Metzger Egg Clock, Mr Kamidian committed himself to the year 1892 as being the “exact date on which the gift was given by the Empress to her healer”. This is consistent with the independent account that Dr Metzger’s second visit to St. Petersburg began on 20 January 1892 and lasted for about one month. This apart, there is in this article much hyperbole. Others present at the November 1991 Sotheby’s auction recalled no “excitement”, “frenzy” or “mystery”. It was also in my view an exaggeration to say (as Sotheby’s had not) that the clock was very close in design to the Madonna Lily Egg Clock, and I would not, for my untutored part, describe it as an outstanding piece of art, albeit I have not seen it at its best since when I saw it before the trial it could not properly be assembled and was in need of cleaning. It is however the implication of describing it as by Mikhail Perkhin which is of most interest. The implication of that description, when read with the text, is that when designing the Madonna Lily egg in 1899 (or presumably a little earlier in 1898, since it would not be the work of a moment) Mikhail Perkhin was building on his own earlier design, as otherwise he must be condemned as a plagiarist. Indeed by the time he came to make his Witness Statement for the purposes of this trial Mr Kamidian’s thesis had become more explicit. At paragraph 54 he wrote that “it” [the Dr Metzger Egg Clock] is believed to have served as a prototype for the famous Imperial Egg Clock known as the Madonna Lily egg clock made under the supervision of Mikhail Perkhin in 1899 to which it is close in design, appearance and height”. I leave out of account that there were I think none outside Mr Kamidian’s immediate circle who believed this to be the case. The suggestion is in fact implausible in the extreme. It would be wholly unprecedented and counter-intuitive for an Imperial Easter gift properly so-called to be modelled on an earlier piece made for a different and by definition lesser purpose. As Dr von Habsburg and Mr von Solodkoff put it in their 1979 book, at page 107:
“It should be added that each of the 46 [Imperial Easter] eggs known is quite unique. Fabergé permitted himself no repetition when working on this most important commission from his Imperial patrons.”
The converse is not true. Imperial Easter eggs seem on occasion to have served as prototypes for later eggs made for commoners such as Mr Kelch. Again I quote from Dr von Habsburg and Mr von Solodkoff, at page 108 of the same book:
“In the land of Easter eggs par excellence it is quite logical that other very wealthy persons should have wished to emulate the members of the imperial family in their lavish Easter presents. One such man was the Siberian gold magnate and millionaire Alexander Ferdinadovitch Kelch, who presented his wife Barbara, née Bazanov, with a series of Easter eggs as sumptuous as those of the Tsars between 1898 and 1904. … Circumstantial evidence as to their non-imperial provenance is to be found in their similarity to other imperial eggs already in existence: as previously stated, Fabergé never produced two eggs even vaguely similar for his imperial patrons. On the other hand, when working for others he frequently copied existing models of his own, since there had to be bounds even to his extraordinary inventiveness.”
It will be recognised that the last two sentences represent a different translation of the passage cited by Mr Kamidian which I have set out above.[102]This again leads inexorably to the conclusion that to the extent that there is any similarity between the Dr Metzger Egg Clock and the Madonna Lily Egg Clock, this tends rather to tell against the former being a piece made by Fabergé for the Imperial family. To model the Imperial Easter presentation of 1899 upon an egg made to be presented to a commoner only a few years before seems most unlikely to be something which Fabergé would have contemplated. I suspect that the similarity between the two pieces is coincidental. To my untutored eye the similarity is not in fact great, since one is an urn and the other is an egg, and one is incomparably finer and richer in its manufacture and decoration than the other. I should however mention that it is common ground that the circumstance that the Dr Metzger Egg Clock is rather more urn shaped than egg shaped does not of itself militate against either it being of Fabergé manufacture or it being properly described as an egg. However that may be, and whatever is my own untutored observation, to the extent that the similarity between the two pieces is greater than I perceive it to be, again it tells against the Metzger family tradition and manufacture by Fabergé since it is unlikely in the extreme to have been manufactured by Fabergé before 1899. Once that is accepted the invoice to which I have referred becomes irrelevant to provenance as a Fabergé piece as does also the indentation which it is said represents a fragment of an assay mark such as would have been put on a piece made in St. Petersburg prior to 1898. If the Dr Metzger Egg Clock was made by Fabergé, it is unlikely to have been made before 1899.[103]For all these reasons it seems to me unlikely that Sotheby’s intended their reference to the Madonna Lily Egg Clock, following the recitation of the Metzger family tradition, to be taken as suggestive that the piece may have been manufactured, as opposed to simply retailed, by Fabergé. Their experts would have known that for the reasons I have explained any resemblance of the Dr Metzger Egg Clock to the 1899 Madonna Lily egg told strongly, possibly conclusively, against its earlier manufacture by Fabergé. I reject out of hand the suggestion that Sotheby’s were seeking by their catalogue entry to telegraph their private view, to which however they were not prepared to commit themselves publicly, that the Dr Metzger Egg Clock was in fact by Fabergé. “Retailed by” is not as Ms Padfield submitted an unconventional attribution. This submission confused conventionality with frequency of use. “Retailed by” is a conventional attribution although it is not often used. I have already remarked that I am not sure on what basis Sotheby’s justified its use here. It seems to me that the Sotheby’s description taken as a whole if anything overplays the likely connection of the piece with the Fabergé workshops. An inexpert reader might read more into the reference to the Madonna Lily Egg Clock than is justified. An inexpert reader might be misled. The acid test of the suggestion that Sotheby’s were hinting at a provenance which they were not prepared publicly to endorse is the pre-sale estimate of SF25,000-35,000. Pre-sale estimates are as the catalogue points out intended as a guide for prospective purchasers. The catalogue recites:
“Any bid between the listed figures would, in our opinion, offer a fair chance of success.”
If Sotheby’s really thought that other properly informed persons would be likely to share their secretly held view that the Dr Metzger Egg Clock was an authentic Fabergé item of quasi Imperial provenance the pre-sale estimate would undoubtedly have been orders of magnitude greater. Presumably any such view, even if not one to which Sotheby’s felt able to commit in sale particulars, would have been communicated to the sellers. Again, it is difficult to imagine the sale in such circumstances proceeding as it did.

Mr Valentin Skurlov

[104]Before going further I should say a word about Mr Kamidian’s expert witness, Mr Skurlov. Mr Skurlov is described in Christie’s catalogue for the November 2007 sale of the Rothschild Egg as “Fabergé Research Consultant”. On the flyleaf to the book which he co-authored with Madame Tatiana Fabergé and Lynette Proler in 1997, “The Fabergé Imperial Easter Eggs”, published by Christie’s, he is described as “Russia’s leading expert on Fabergé”. The description continues “much of the new information presented over the past few years by other historians has been based on Mr Skurlov’s research. He has written many books and articles on the subject”. There is no doubt that Mr Skurlov has for many years commanded respect in the art world as a well-informed archivist who has enjoyed access to some original Fabergé and Imperial documents access to which is no longer publicly available. I am however unconvinced that he has any significant learning or experience as an art historian as opposed to as an historian with an interest in Fabergé. His experience and expertise lie in the provision of historical documentation and research. When he expressed opinions on what might broadly be called artistic or art historical matters his evidence was muddled and unconvincing.[105]In October 2000 Mr Skurlov had published in the Russian journal “Antikvarratt” (of which journal he is I believe himself the publisher) an article on the Dr Metzger Egg Clock in which he drew comparisons with not just the “celebrated” Madonna Lily Egg Clock but also with a chandelier or candlestick, a photograph of which had for some years been in the Fabergé family and is currently in the custody of Madame Tatiana Fabergé. In this article he referred to what he said was the invoice relating to the Dr Metzger Egg Clock, an invoice bearing the dates 9 and 10 January 1894. That invoice, addressed to the account of His Imperial Highness, i.e. Tsar Alexander III, does indeed refer to the supply on 22 December 1893 of a “clock [or “watch” – there are variant translations] jadeite, Louis XV” at the price of 2,000 Roubles. In his article Mr Skurlov said that the invoice described the clock as being in the style of Louis XVI. Mr Skurlov said in evidence that this must have been a misprint. It may have been, but the same error appears in another article contributed by Mr Skurlov to “Christie’s Antique Review” in 2004. The same error also appeared in a highly significant “Examination Report” again prepared by Mr Skurlov and dated 16 April 1999. A copy of this report was sent by Mr Skurlov by fax to Mr von Solodkoff on 1 April 2000 pursuant to Mr Kamidian’s request in connection with an ongoing discussion between Mr Kamidian and Mr von Solodkoff as to the manner in which the Dr Metzger Egg Clock would be described in the catalogue for the Exhibition at Delaware. I referred to this discussion parenthetically in paragraph 37 above and I deal with it in more detail below. In fairness to Mr Skurlov it should be pointed out that another document prepared by him on 1 April 2000 and likewise faxed to Mr von Solodkoff that day, an “Archive and Historical Information Note”, did correctly refer to the description in the invoice as being of a clock in the Louis XV style. However I am more concerned with the significance of the error rather than with the precise manner in which it came about. Both the Dr Metzger Egg Clock and the Madonna Lily Egg Clock are undoubtedly, by common informed consent, in the style of Louis XVI. Even Mr Skurlov ultimately so accepted, observing in relation to the Dr Metzger Egg Clock that “there are no elements of Louis XV style”. The invoice for the Madonna Lily Egg Clock, reproduced in the 1997 book co-authored by Mr Skurlov, likewise described that egg as being in the Louis XVI style. Although no doubt there are pieces which owe a little to both traditions, art historians recognise a clear distinction between the Louis XV or Rococo style, characterised by scrolls or “rocaille”, and the Louis XVI neoclassical style characterised by straight lines, finials and pillars. I am sure that this is an over-simplification, but it will serve for present purposes. The Dr Metzger Egg Clock is not in the style of Louis XV. Reverting to Mr Skurlov’s October 2000 article, he describes the candlestick in Madame Fabergé’s photograph as being in the style of Louis XV. It is in fact pure Louis XVI. Mr Skurlov then continues:
“The photograph of this item, placed in frame, had been hanging for many years (1922-1960) in the office of Eugene and Alexander Fabergé’s firm in Paris, as one of the most eminent creations of Carl Fabergé’s firm. Similarity between the photographs of chandelier and the analysed clock [the Dr Metzger Egg Clock] allows us to draw unequivocal inference on stylistic commonality of both pieces of art – the style of Louis XV.”
The article is thus both internally inconsistent, possibly as a result of a misprint, and plain wrong. Mr Skurlov then goes on to say that it is obvious that the candlestick was made in the workshop of Mikhail Perkhin. In fact, as Madame Fabergé pointed out, the mark of workmaster Julius Rappaport, a silversmith, can be seen on the photograph. According to Dr von Habsburg, whose view was not I think challenged, both the candlestick and the Dr Metzger Egg Clock more closely resemble the work of a silversmith than that of a goldsmith. Mikhail Perkhin was a goldsmith – according to Dr von Habsburg the greatest of all goldsmiths who worked for Fabergé. Mr Skurlov’s oral evidence displayed similar confusion.[106]Mr Skurlov’s archival finds, the invoice and the private memoirs or diaries of the personal secretaries, in my view carry the matter little further forward and indeed rather tell against the likelihood both of the clock having been presented to Dr Metzger and the likelihood of it having been manufactured by Fabergé. The date of supply of the piece recorded in the invoice, December 1893, does not accord with the Metzger family tradition. That tradition, as recounted by Sotheby’s, if that is what they were doing, involved a presentation “during his second visit” which they recorded as being “early in 1892” and can be independently verified as a one month visit starting on 20 January 1892. Hence as I noted at paragraph 101 above Mr Kamidian committed himself in 1992 to a presentation in 1892. The Dr Metzger Egg Clock is of nephrite. The invoice refers to jadeite rather than nephrite. Jadeite and nephrite bear a considerable resemblance to each other in terms of their appearance, their hardness and the properties they exhibit when being processed. Both are tough, since they consist of dense, close-grained, matted aggregates, but they differ from one another in their chemical composition and colours. Jade is strictly speaking a generic term for two different stones, nephrite and jadeite. Jadeite is rarer than nephrite and is therefore regarded as more precious. The evidence demonstrated that the compilers of invoices at the Fabergé workshops were well aware of the distinction between jadeite and nephrite and routinely referred to both using the appropriate different Russian words. Finally the invoice of course refers to the style of Louis XV. Again the Fabergé invoices produced display a consistent and coherent observance of the distinction between the Louis XV and the Louis XVI styles and I reject as improbable the suggestion that the reference on the invoice to Louis XV is a simple error. Furthermore the invoice contains no reference to the number which now appears on the clock and is said by Mr Kamidian and by Mr Skurlov to be an original Fabergé inventory number. I entertain grave doubts, to which I shall return, whether the number was in fact engraved in the Fabergé workshops, since the workmanship is crude in the extreme, but if it is a Fabergé inventory number it seems to me likely that there would have been a reference to it on the corresponding invoice. A February 1894 Fabergé invoice produced by Mr Skurlov records inventory numbers and his suggestion that it was not the general practice to include such numbers in the invoice until later than 1893 is not a convincing explanation for its absence from a January 1894 invoice.[107]In the course of the trial an attack was made upon Mr Skurlov’s integrity. It is the case that Mr Skurlov derives a significant proportion of his income, he said not more than 30%, from the provision of “expert determinations” or certificates of authenticity to the owners of or dealers in items alleged to be by Fabergé. Dr von Habsburg put it as high as to say that Mr Skurlov produced certificates attesting to the genuineness of forgeries and that his reputation was now in consequence tarnished. Equally trenchantly, Mr von Solodkoff said that Mr Skurlov now produces reports on demand of traders for pieces that even at first glance are obviously not genuine. There was other evidence to similar effect. One specific example of what was said to be such a certificate was placed before the court, a certificate of 11 December 2006 which related to a pink egg topped by a moonstone cabochon. The upper part of the egg is connected to the lower by a hinge and the “surprise” within the egg is a bouquet of five wild flowers in a gold flower vase. It is apparently fully marked with what appear to be respectively the Fabergé company mark, the mark of workmaster Mikhail Perkhin and the double stamp of the St. Petersburg assay office. Mr Skurlov in the certificate described the egg as having “high artistic merits” and “very high jewellery technological execution belonging to a rare group of Fabergé items of the first class, and by its closeness to the group of ‘Imperial Easter Eggs’” having “outstanding museum-collectable significance and very high antiquarian value”. Madame Fabergé, who had also examined this egg, described it in evidence as “a rather horrible egg”. She did not consider it to be a Fabergé. Madame Fabergé has plainly worked closely with Mr Skurlov and continues to do so and she has a high regard for him. Her loyalty to him did not prevent her from conveying to me the clear impression that she thought the attribution of this piece to Fabergé risible. Mr Dale likewise condemned it out of hand on the strength of the photograph alone. The market in fake Fabergé pieces is buoyant. It is vividly described by Dr von Habsburg in his article “Fauxbergé” in the February 1994 edition of “Art and Auction”. He refers to “the most prolific source of Fabergé forgeries” as being “the Russian colony in Brooklyn’s Brighton Beach”. He said that it was suspected that “tens of thousands” of “Fabergé” objects of all sorts originate from these workshops.[108]I do not find it necessary to enter into the debate whether Mr Skurlov has in recent years compromised his integrity. Evidently Mr Skurlov enjoyed a good reputation in 2000 since Dr von Habsburg was keen that Mr von Solodkoff should involve him in the preparation of the catalogue for the Wilmington exhibition. Dr von Habsburg had no reason to doubt information from Mr Skurlov upon which he and Mr von Solodkoff later in that year relied in agreeing to describe the Dr Metzger Egg Clock in the Wilmington catalogue as “by Fabergé”. Mr Skurlov still has an association with Christie’s, as witness his involvement in the preparation of the catalogue for the sale of the Rothschild egg in November 2007. I have already indicated that I find Mr Skurlov’s evidence persuasive only on archival or historical matters, on which he was well-informed, as opposed to on stylistic and artistic matters, or on the quality or fineness of work and craftsmanship, where I find his views ill-informed, muddled and unreliable. Further than that I need not go. I should however also record that I was left in doubt as to the basis upon which Mr Skurlov was acting as an expert witness in this case. His letter of instruction was never produced and it was unclear whether he was to be paid for his work and, if so, on what basis. I was also concerned as to the extent to which I could regard him as truly independent of the dispute. He has from an early stage in the post-1991 story been active in attempting to persuade the art world of the provenance of the Dr Metzger Egg Clock, and has of course gone on record in its support. That does not of itself disqualify him from being competent to assist the court but I have to record that I am left with uncomfortable doubts as to his objectivity, particularly since he has so confidently promoted the relevance of the invoice and the significance of the alleged inventory number. I did not feel that I received either from him or from Madame Fabergé a full account of the circumstances in which the decision was made not to mention the Dr Metzger Egg Clock in their 1997 book, which included a chapter on the Kelch eggs and another on “undocumented” eggs amongst which were numbered, for example, the Duchess of Marlborough egg of Imperial quality. All that said, I should make it clear that I do not consider that in his evidence about the Dr Metzger Egg Clock Mr Skurlov set out actively to mislead the court, and I do not think that Mr Neish suggested that he did. At the end of the day a combination of Mr Skurlov’s shortcomings as an art historian or appraiser of fine art and the inconclusive nature of his archival finds rendered his evidence of less relevance or importance to the matters which I have to decide than might initially have been expected.[109]Sotheby’s are likely in my view to have been influenced in their appraisal of the piece for the purposes of the 1991 sale by the circumstance that the clock was, as they thought and as they recorded in the first line of their catalogue description, unmarked. Five different kinds of mark can be found on Fabergé pieces, although not necessarily all will be present, and assay marks will not of course be present on pieces which contain no elements of gold or silver. Typical marks include Fabergé’s own hallmark, the word Fabergé stamped in Cyrillic script; the Fabergé workmaster’s individual mark, e.g. MP for Mikhail Perkhin, HW for Henrik Wigstrom, IP for Julius Rappaport; a town mark; a date mark and, if the item is of gold or silver, an appropriate assay mark. Sotheby’s are likely to have regarded the absence of all five possible marks as significant. Forty-seven of the fifty Imperial Easter eggs detailed in Mr Skurlov’s and Madame Fabergé’s 1997 book display appropriate marks. The three which do not have other provenance. Other eggs accepted as being of Imperial quality such as the Kelch eggs and the Rothschild egg are marked. Indeed in principle since the clock is capable of being dismantled by being unscrewed Russian law would have required assay marks on each separate silver part of the clock.[110]It is said by Mr Kamidian that in November 2007 there were discovered by a friend two minute indentations on the lower narrow metallic band on the front face of the nephrite base of the clock. It is suggested that they are evidence of an attempt to strike a Fabergé hallmark in Cyrillic together with a St. Petersburg 88 Zolotnik assay mark in the form current before 1898. Close examination of the magnified photographs does demonstrate that there appear to be indentations. The evidence did not deal in detail with the question by whom such hallmarks and assay marks would ordinarily be struck. Insofar as the point was covered, I was left with the impression that it would have been done in the Fabergé workshops. Certainly, as I understand it, that would be true of the Fabergé hallmark and the workmaster’s mark. No-one was able to offer any sensible explanation as to why craftsmen at Fabergé or indeed any suitably skilled person would have attempted to strike a mark in a position where the available metal surface appears to be wholly inadequate in size to receive it. The resulting indentation is invisible to the naked eye and unrecognisable as corresponding to a fragment of an official mark save with the assistance of magnification and a certain amount of imagination. There is ample space to strike marks correctly on the metal, silver, part of the clock without attempting to do so on a narrow band on the nephrite base. I think it improbable that these indentations represent an inexpert and clumsy attempt by a Fabergé craftsman to mark the piece. I consider that a Fabergé craftsman wishing to mark the piece would have done so in a typically expert fashion in an appropriate place where the mark could clearly be seen for what it was. Even if others than the Fabergé craftsmen were potentially involved, there is no reason to believe that the marks would not ordinarily be completely struck in an appropriate place. Both experts illustrated their reports with photographs of well executed and relatively visible hallmarks and assay marks on Fabergé pieces. Mr Skurlov attempted to explain the lack of clearly executed marks in this way, at paragraph 18 of his Supplementary Report:
“The lack of the full set of clearly visible hallmarks (not their traces) on Dr Metzger egg may be explained by the secrecy of the order (‘medical secrecy’). The Empress Maria Fyodorovna did not want anybody know about her taking the massage sessions (a very evident wish of the client), therefore, the Tsar’s gift was to the highest possible extent depersonalised and there are no hallmarks of the Russian court supplier Carl Fabergé on it.”
I do not find this explanation either sensible or convincing. If there were to be no marks so as to conceal the identity of the maker so as in turn to avoid the connection being made between Dr Metzger and the Russian Imperial family, presumably no attempt at hallmarking or assay marking would have been made, rather than an attempt doomed to failure. In any event this attempt at depersonalisation would seem to be compromised by presentation of the gift in a Fabergé wooden box, if that is what occurred. As I have indicated earlier, the precise nature and significance of these indentations was not fully explored at the trial. Underwriters advanced no positive case that these indentations were not on the Dr Metzger Egg Clock when it was purchased in 1991, although it is obvious that Sotheby’s did not find them or, if they did, that they cannot have regarded them as significant. I can make no reliable findings about these indentations or what they represent, save for a confident finding that they are unlikely to have resulted from an attempt by a Fabergé craftsman to strike a hallmark and an assay mark on the piece.[111]Mr Kamidian says that in 1995 he “found an inventory number scratched on the lower part of the fixture framing the egg body”. It is indeed the case that there can be seen the number 46822 scratched onto the metal bezel immediately above the beaded rim on the body of the clock. The number is scratched onto a relatively small area which is concave in shape. For anyone other than a competent craftsman it would be difficult to engrave a number onto such a surface in such a position. In fact the scratching, which I hesitate to describe as engraving, is crude in the extreme. Even Mr Kamidian’s expert Mr Boyce described it as rudimentary. There are instances where the tool used has evidently slipped. The marking is visible to the naked eye and it is accepted that it can easily be read with a simple eyeglass. If it was noticed by Sotheby’s it was not commented upon. No-one apparently saw it in connection with the clock’s appearance at the 1992 Exhibition, although whilst on display the clock was in a glass case. Mr Skurlov examined the clock in both 1993 and 1995, although it is fair to say that on at least one of those occasions his main focus of attention was elsewhere, in particular on the hardstone parrot by Denisov-Uralski. Similarly Mr Dale did not notice this number when he first examined the clock in 2004. It was for this reason that underwriters advanced no positive case that the number was not already on the clock when it was purchased at Sotheby’s in 1991.[112]Mr Dale’s evidence that a crude scratching of this sort is inconsistent with what one would ordinarily expect of an inventory number engraved in the Fabergé workshops was amply borne out by example and is not capable of sensibly being controverted. I also found persuasive Dr Bennett’s evidence, which she was well qualified to give, that the scratching of the number appeared to have been effected over earlier more shallow scratches such as are consistent with ordinary wear and tear, particularly repeated handling and cleaning of the clock. Mr Boyce’s suggestion that these underlying marks could possibly be attributed to manufacturing marks made during the polishing process prior to the application of gold in the gilding process was obviously tentative. The engraving is so crude that I think it is unlikely to be the work of a craftsman employed by any jeweller of repute, let alone Fabergé. On anyone’s case the Dr Metzger Egg Clock is a piece made in a workshop displaying skills greater than those demonstrated in the engraving of this number. I think it unlikely that the engraving of the number was contemporaneous with the manufacture or first sale of the clock. If the engraving was contemporaneous with the manufacture or first sale of the clock, this again tells strongly against the piece having been made in the Fabergé workshops, simply because it is inconsistent with the standards of workmanship ordinarily associated therewith.[113]As Mr Skurlov has pointed out “Imperial Easter eggs were never given inventory numbers by the House of Fabergé as each egg was commissioned from the Tsar, and there was no need to attach numbers to the eggs” – see the 1997 book co-authored with Madame Fabergé and Miss Proler at page 80. He was of course there referring to Imperial Easter eggs in the sense of those commissioned to be gifts to the Tsarina or to the Dowager Empress, although the logic of the argument would seem to suggest that if the Dr Metzger Egg Clock was indeed commissioned by the Tsar or by the Empress it would have required no inventory number. The Dr Metzger family tradition would seem to require that the clock was commissioned, rather than being a stock item, not least in view of the medical symbolism attributed to the snake pointer on the timepiece. However the parties were not in fact ad idem whether a snake not depicted, as this is not, entwined around a rod or staff of the sort traditionally shown as carried by the Greek god of medicine Asclepius could properly be regarded as carrying with it medical symbolism. Both the Blue Serpent Egg Clock and the Duchess of Marlborough Egg Clock use a serpent as the pointer to the hour – it seems not unnatural to suppose that the latter clock, to which I referred at paragraph 1 above, may have been modelled on the Blue Serpent Egg Clock to which it is strikingly similar and which was an Easter presentation to the Empress Maria Feodorovna in 1887. Mr Dale said, without contradiction, that serpents are commonly found as a design feature on nineteenth century clocks. It is unnecessary for me to decide, and in any event on the basis of the materials before me I could not decide, whether a snake configured as is the snake on the Dr Metzger Egg Clock is intended to convey medical symbolism. Of course if the Dr Metzger Egg Clock, being a piece commissioned by the Imperial family, required and was given no inventory number, the absence of an inventory number on the invoice is not of itself a reason for doubting their association with one another. On the other hand, if the number on the clock is contemporaneous with the manufacture of the clock or its first sale, and is an inventory number, that would tell against the clock being a Fabergé Imperial Egg, for the reasons given by Mr Skurlov.[114]For all these reasons I do not find it necessary to discuss the reliability or otherwise of Mr Skurlov’s “algorithm” which enabled him to associate the inventory number with the “second half” or even “the autumn” of 1893. The relevant part of the database was never produced and there was in fact wholly insufficient supporting evidence in the shape of invoices and so forth to enable me to come to any reliable conclusions. Mr Skurlov’s reliance on the “theory of big numbers” was no doubt a reference to the theory of numbers propounded by the seventeenth-century Swiss mathematician Jacques Bernoulli. My own researches reveal that, somewhat ironically, the nephew of Jacques Bernoulli became Professor of Mathematics at St. Petersburg and in his turn propounded the “St. Petersburg Paradox” which might perhaps serve as a sub-title for this judgment. A particular problem, as it seems to me, is that such invoices as have been produced indicate only when stock items were delivered to purchasers, not when they had been manufactured. There was some suggestion of a practice of “melting down” items not sold within one year of manufacture but it seems rather unlikely that such a policy can have been consistently followed in relation to higher value pieces. One of the few examples explored at trial concerned a February 1894 invoice which bore an inventory number which should, according to Mr Skurlov, relate to 1892, although I am not sure that that really proves anything either way. However I do not need to explore this further.[115]In addition to Mr Skurlov and Mr Dale, who were called as expert witnesses, I also heard views as to provenance expressed in evidence by Madame Fabergé, Mr von Solodkoff, Dr von Habsburg and Mr Andre Ruzhnikov. They were called as witnesses of fact but I do not propose to ignore their opinions on that ground alone.[116]Madame Fabergé first saw the Dr Metzger Egg Clock at the St. Petersburg exhibition in 1992, where of course she saw it behind glass. It was on this occasion that she first met Mr Kamidian. She appears to have been somewhat influenced in her view by the prominent position in which the Dr Metzger Egg Clock was placed and the enthusiastic doubt-free write-up given in the exhibition catalogue, for both of which Mr Kamidian was of course responsible. She says that she discussed the Dr Metzger Egg Clock with Mr Skurlov, who was also present at the exhibition, and that they both agreed that it was clear straightaway from its appearance that the Dr Metzger Egg Clock was “a real Fabergé”. She was at that stage unaware that the piece had been sold at auction at Sotheby’s in the previous year, and of course unaware of the description given to the piece by Sotheby’s or the price at which it was sold. Subsequently in 1995 Mr Skurlov told her of his discovery of the invoice although she never saw it for herself. She did not attend the 2000 exhibition.[117]I have already pointed out that there is no mention of the Dr Metzger Egg Clock in the 1997 book “The Fabergé Imperial Easter Eggs” co-authored by Madame Fabergé, Mr Skurlov and Lynette Proler and published by Christie’s. One of the justifications for producing another book on this well-trawled subject was the post-glasnost discovery of archival material of which the invoices found by Mr Skurlov formed a prominent part. I have also mentioned that the book had a chapter on “Undocumented Eggs” as well as a specific chapter on the Kelch Easter Eggs. In addition to being beautifully produced the book is plainly the product of much research. It would be surprising if it were not intended to be definitive, so far as the current state of knowledge and informed opinion would permit. It carries a Foreword by Alexis de Tiesenhausen, the Head of Christie’s Russian Department and himself a noted authority in the field. Mr Kamidian plainly appreciated that in the context of his claim against underwriters, Mr von Solodkoff, Dr von Habsburg and the organisers of the exhibition he would have to explain this omission. He turned first to Madame Fabergé, asking her for a document in support of his case.[118]Madame Fabergé obliged in January 2006 with a short letter to Mr Kamidian written in French. I set it out here in the informal translation:
“Dear Michel, I learned with surprise that you are having problems in relation to the loan to the Fabergé exhibition organised at Wilmington in the United States of your Easter egg which belonged to Dr Metzger. That egg was damaged at the time of transport to this exhibition, which has obviously reduced its value very much. The information found in the archives which Mr Valentin Skurlov provided you with establishes unequivocally the provenance of that egg, given as a gift to Dr Metzger for treatment given to members of the Imperial Family of Russia, and in particular to Empress Alexandra Fedorovna. I would like to emphasise that we did not include that egg in our book devoted to Imperial Easter Eggs (publication Christie’s 1997) because its owners did not wish its photograph to be published. I hope that this information allows you to succeed against the organisers of this exhibition as well as their insurance which covered the transport of that egg.”
I leave out of account the erroneous reference to the Empress Alexandra, who did not become a member of the Imperial family until her marriage to Tsar Nicholas II in November 1894 after the death of his father Tsar Alexander III earlier in the same month. Of more interest is the need felt to explain the omission from the book and the reason given. The explanation given is not quite the same as given in Madame Fabergé’s Witness Statement of 23 August 2007 where she said:
“32. The book was published by Christie’s. We wanted to include the Egg in a section entitled ‘undocumented eggs’. However, Christie’s would not allow us to include it this section. [Sic] 33. I am also aware that Michel Kamidian did not want me to put the Egg in the book at the time as he was trying to buy the rest of the Egg from his co-owner. The inclusion of the Egg in the book would have increased the value of the Egg.”
[119]This account is broadly consistent with what was contained in Mr Kamidian’s first Witness Statement, which was dated 24 August 2007 and was plainly prepared at about the same time as Madame Fabergé’s Witness Statement. At paragraphs 109 and 110 of his Witness Statement Mr Kamidian says this:
“109. I specifically requested to Dr Skurlov that the Egg was not included in the 1997 book that he wrote with Tatiana Fabergé as I did not want the Egg to become well-known. If the Egg became well known then the value of the Egg would have significantly gone up and this would have increased the price that I would have had to pay for it from the third party. I did not want that price to be increased as my intention was to buy the other fifty percent share from the owner of the other half of the Egg. 110. Mr Skurlov wanted to write about the Egg in the book and in fact even prepared a slide to put in the book but as stated above I specially asked him not to put it in that book. However, I believe that Christie’s would not allow Mr Skurlov or Madame Fabergé to write a section on undocumented eggs.”
[120]Mr Skurlov did not deal with this point in his Expert Report – in fairness it may have been thought inappropriate for inclusion in such a document. In his oral evidence he seemed to say that he and Madame Fabergé had not known who the co-owner of the egg was and thus they could not get “copyright”, by which he meant I think authority, to take or, I suppose, use, a photograph of the egg. He also said that the decision not to include the Dr Metzger Egg Clock in the book was a decision made by him and Madame Fabergé alone, on which Lynette Proler was not consulted. He said further that Christie’s had “nothing to do” with the decision which was also not discussed with Mr de Tiesenhausen.[121]I do not find Mr Skurlov’s explanation convincing. Photographs of the egg had already been published in the 1992 exhibition catalogue. It was only in “around 1997” that “Roger” apparently disposed of his interest to a third party which is likely therefore to have been after any discussion between Mr Kamidian and Mr Skurlov on the question whether reference might be made to the Dr Metzger Egg Clock in the book which was, in the event, published in 1997. I have already pointed out that Madame Fabergé’s evidence on this point was not the same as the reason given in her January 2006 letter. When pressed further, particularly by me, her evidence was unclear. I derived the clear impression that it was a topic which she was not happy to discuss. I think that she was anxious to avoid giving a direct answer which was plainly untrue. In the result it became unclear whether Christie’s had been involved in the decision or not. Lynette Proler had it seems been consulted, contrary to what Mr Skurlov had said.[122]On balance I conclude that the omission from the book of the Dr Metzger Egg Clock is unlikely to have been agreed to by Madame Fabergé at any rate solely because of a desire to assist Mr Kamidian in his attempt to acquire the remaining 50% interest in the egg, if that is what he was about. I do not think that Madame Fabergé would have wished to be party to such a scheme, Mr Skurlov did not suggest that this was his motivation and I have no reason to think that Lynette Proler would have wished to compromise the comprehensive coverage given by the book for so base a reason. Furthermore, mere lack of a usable photograph would not have prevented reference to the Dr Metzger Egg Clock being made in the text. As it is it did not merit even a footnote. Looking at the matter in the round, the conclusion is really inescapable that the absence from the book of the Dr Metzger Egg Clock is likely to be accounted for by a lack of enthusiasm for its inclusion on the part of the authors or the publishers or both. I might add that if Mr Kamidian was indeed trying to ensure that the value of the clock was not enhanced he was playing a strange game. In 1992 he had shamelessly talked up the provenance of the piece in the exhibition catalogue. Thereafter, if he is to be believed, he and Roger were attempting to sell the piece as a genuine Fabergé item for US$3m or thereabouts. On his own case he had a 50% interest in the egg clock when this new book, intended to be prestigious, authoritative and definitive, was in gestation. Whilst I can understand a desire to pay as little as possible for a 50% share, the loss of the opportunity to have the egg authoritatively declared as genuine in a work of scholarship published by Christie’s seems a heavy price to pay, even assuming that scholarly authors could be persuaded to go along with the scheme. In any event in the limited circle of people dealing with Fabergé works such a scheme is surely unlikely to have been successful. It would not have fooled “Roger” who if he believed he was the co-owner of a Fabergé piece would presumably not be deterred from holding out for an appropriate price by non-inclusion of the egg clock in the new book.[123]On 9 November 2007 Messrs Ince, for underwriters, asked the following question of Mr Kamidian’s solicitors:
“Please confirm whether or not your client has made any attempt(s) to sell his share of the Clock (when in co-ownership) or the entire Clock (when in full ownership), together with all documents relating to such attempted sales. If so, please can your client explain whether or not the Clock was being sold as ‘by Fabergé’ and at what value(s)?”
On 21 December 2007 Mr Kamidian’s solicitors, presumably on his instructions, gave the following answer:
“Our client has not made any attempts to sell his share of the Egg or the entire Egg.”
This answer is hardly consistent with the evidence Mr Kamidian gave me as to the efforts made by him and Roger to sell the Dr Metzger Egg Clock for US$3m. He also said in evidence that after the 1992 exhibition, in the course of 1993, interest was shown in the piece by American buyers. Although not explicit, it is plain that Mr Kamidian was implying that their interest was in a purchase at a price around the US$2.5m level, and therefore consistent with the piece being purchased as authentic. According to Mr Kamidian the American buyers were however uncertain because of doubts as to the provenance of the piece expressed by someone in the United States. Publication by Dr von Habsburg of his February 1994 “Fauxbergé” article caused this proposed sale to fall through. In that article Dr von Habsburg wrote:
“Sometimes, sloppy scholarship will help validate a work of Fauxbergé. … A similar case of slipshod scholarship is that of an egg-shaped timepiece that was featured in a 1992 exhibition at the Catherine Palace in Tsarskoye Selo, outside St. Petersburg. It was illustrated on the cover of the show’s catalogue and was hailed as ‘Imperial’ by the French co-curator, who said it was ‘by Mikhail Perchin’ and had been ‘ignored’ by Western experts. In point of fact, this timepiece, when it was sold at auction in 1991, was correctly described as ‘retailed by Fabergé, unmarked, probably St. Petersburg’ and as having been given by Dowager Empress Maria Feodorovna to Dr Georg Metzger in 1892.”
[124]Mr Kamidian did not deal in his Witness Statements with any of these attempts at sale, I infer because they would tend to show that his own professed opinion as to the provenance of the piece was not widely shared. His account emerged only in cross-examination. However very shortly before trial underwriters sought leave to introduce evidence as to a further attempted sale. This evidence was in the shape of a Witness Statement from the person to whom, allegedly, Mr Kamidian attempted to sell the Dr Metzger Egg Clock in about 1998 or 1999. This was Mr Andre Ruzhnikov who in the event gave evidence by video link from California where he now lives. Before he did so however Mr Kamidian gave his own version of what was, on his account, from his point of view an attempted purchase by Mr Ruzhnikov rather than an attempted sale by him to Mr Ruzhnikov. Mr Kamidian said that he was surprised when Mr Ruzhnikov approached him since Mr Ruzhnikov owed him money and would not have been able to afford the purchase. It was established that Mr Ruzhnikov was making the approach on behalf of another, a “big client”. According to Mr Kamidian, Mr Ruzhnikov inspected the piece, photographed it in order to have a record to show to his client and expressed no doubts about its provenance. There was a discussion about the price. Mr Kamidian asked for US$4m but indicated that the “best price” would be US$3.5m. Before leaving Paris, where the meeting took place, Mr Ruzhnikov asked whether, in the event that the purchase went through, he could have ten percent commission on the deal. Mr Kamidian did not commit himself to that but said that he thought it would be okay.[125]Just as Mr Kamidian had been concerned to portray Mr Ruzhnikov in a poor light, a strategy which was more vigorously pursued later by Mr Martin-Zakheim, so too Mr Ruzhnikov in his Witness Statement, made before Mr Kamidian gave evidence, was astute to belittle Mr Kamidian. Paragraph 5 of his Witness Statement reads:
“5. I have known Mr Kamidian probably for 15 years. My impression has been that has never been more than a small-scale dealer and as I recall I have bought a few token unimportant pieces of Fabergé and other Russian bits from him in the past. When I met Mr Kamidian, he and his partner had an approximately 80 square foot booth in the subterranean floor of the Louvre des Antiquaires in Paris. Their stock was pedestrian and quantities rather meagre. During the past decade Mr Kamidian has not succeeded in elevating his business to a higher level, he still only dabbles in lesser pieces and by no means his name has ever been associated with any serious transactions. In my view, Mr Kamidian is a ‘runner’ without any serious financial backing, knowledge or expertise.”
[126]Mr Ruzhnikov’s description of this encounter was very different to that given by Mr Kamidian. Mr Ruzhnikov is well known in Fabergé circles, although I suspect that he is a bigger player now than he was in 1998/99. In the last few years he has acquired an important role as a Director of the Link of Times Foundation set up by the Russian businessman Viktor Vekselberg, which is now the largest holder of Fabergé objects in the world. Mr Ruzhnikov is also Director of Aurora Fine Art Investments Fund, itself a most significant presence in the world of Russian art. Mr Ruzhnikov advises that fund on acquisitions. Mr Ruzhnikov is also a substantial collector in his own right, who had himself lent over one hundred pieces for display at the Wilmington exhibition. As usual in this case there were two views expressed about the expertise of Mr Ruzhnikov. The overwhelming preponderance of the evidence was to the effect that Mr Ruzhnikov is someone whose views carry weight in this restricted market. He would not I think be occupying the positions he now does were that not so.[127]I set out in full Mr Ruzhnikov’s account of his dealings with Mr Kamidian concerning the Dr Metzger Egg Clock. Paragraphs 6 to 10 of his Witness Statement read as follows:
“6. I was offered the Clock by Mr Kamidian some time before the Wilmington show, Delaware, exhibition in 2000. I have even taken some pictures of the Clock which I am offering to these proceedings. I cannot recall exactly when the offer was made but I believe it happened one or two years prior to the exhibition. Mr Kamidian brought the Clock to the Grand hotel in Paris where I was usually staying. Only Mr Kamidian and I were present. Mr Kamidian offered me the Clock for, I believe, US$2.5 to 3 million and said that it was an Imperial Fabergé Egg Clock. I inspected the clock, including the inventory number which Mr Kamidian had apparently serendipitously discovered on the Clock, and could tell immediately that it was not by Fabergé. It was not hallmarked and did not have the quality to be expected from a Fabergé item. Fabergé objects are all incredibly finely chased. This by comparison, was crude. The quality of the nephrite used for the base was poor and cloudy. I have handled thousands of Fabergé pieces and know when I am looking at a genuine Fabergé item. It was crystal clear to me at the time, as well as now, that the item was a European (French or Austrian) Clock, probably dating from the latter part of the 19th Century. 7. Mr Kamidian kept insisting that the item was a genuine Fabergé piece, I asked him to show me why he thought that was the case. Mr Kamidian dismantled the Clock (see attached photos) in my presence but was unable to show me anything which was consistent with the item being by Fabergé. There was, for example, no hallmark referring to the workmaster, Michael Perchin (MP), nor was there the name, nor the stamp of Fabergé. There were no hallmarks, which I would expect to see, nor any other identifying marks, other than a poorly scratched inventory number which hardly proves any provenance, which incidentally was not described as being on the Clock at the time of the Sotheby’s auction in 1991. In my experience, in today’s world of sky rocketing prices and insatiable appetites for authentic Fabergé, outright forgeries and things that pretend to be Fabergé are abundant. Scratched inventory numbers could be added to anything for a token number of dollars. ‘Imperial eggs’ are offered to us no less than a few times a month (see attached pictures). In the past few years I’ve heard copious numbers of ludicrous, convoluted stories designed to fool overly anxious and well endowed collectors very similar to those of the so called Dr Metzger Egg. 8. The so-called original fitted case that the Clock came with is undoubtedly genuine but it was not born with the Clock or rather was never intended for the piece. The Clock did not fit comfortably in the base of the presentation box and was not made for this object. Every Fabergé fitted case is built with fabric on the bottom, in most cases velvet, the weight of this Clock would have left an unmistakeable mark on the base of the case. The panel with fabric was not there. The Clock is also far too large for the case. I did not look at the presentation box in any further detail, as the item itself, which was the most important reason for the visit, was not by Fabergé. Hence I had no interest whatsoever in any further discussions regarding the acquisition of this item. 9. If the Clock had been by Fabergé, I would have been nothing short of delighted to buy the piece, or to broker its sale. A short cab ride from the court house to either Sotheby’s or Christie’s will quickly prove that neither of the auction houses will accept this cherished object for sale, I will bet you my last dollar. 10. The clock is not Russian but Continental European, produced in a style only slightly reminiscent of Fabergé very common at the time. Fabergé was by no means the only firm in Europe that usurped neo-classical, Empire or Louis XVI styles.”
[128]I do not accept Ms Padfield’s submission that Mr Ruzhnikov “reluctantly” accepted in cross-examination that he went to Paris especially to see the Dr Metzger Egg Clock, and that this confirmed Mr Kamidian’s version that it was Mr Ruzhnikov who first approached him over the possible transaction. The passage in his witness statement about which he was being cross-examined was actually making the point that he did not examine the wooden case in any detail as the clock, rather than the case, was the more (incorrectly rendered as most) important reason for “the visit”, by which I think he actually meant Mr Kamidian’s visit to his Paris hotel rather than his own visit to Paris. Mr Ruzhnikov visits Paris regularly. He could not remember who had first contacted whom over the Dr Metzger Egg Clock. Mr Ruzhnikov recognised that Mr Kamidian had given him sufficient information about the Dr Metzger Egg Clock, which he had seen at auction in 1991, to make him curious about it. The real question which I have to resolve is not so much who initiated the meeting but rather whether on inspection Mr Ruzhnikov showed interest in acquiring the egg clock at a price commensurate with it being a Fabergé, or whether by contrast on close inspection of the piece he rejected it out of hand as not a Fabergé. Mr Ruzhnikov came across as a slightly larger than life character who gave his evidence in a somewhat flamboyant manner. On this central issue his evidence was I thought wholly unshaken by cross-examination. However my principal reason for preferring his version of events is that it is I think inherently more plausible. If Mr Ruzhnikov had shown real interest in the piece, albeit on behalf of a client, on the basis that it was by Fabergé, even to the extent of attempting to negotiate a commission in the event of the sale going through, I think it likely that Mr Kamidian would have referred to this in his Witness Statement as an example of a prominent dealer and acknowledged authority in this limited world accepting, or not questioning, the provenance of the piece.[129]I must deal finally with the position of Mr von Solodkoff and Dr von Habsburg. The description of the Dr Metzger Egg Clock which they included in the catalogue for the Wilmington exhibition, in fact an impressive hardback book of 416 pages, read as follows:
“434. SILVER-GILT MOUNTED NEPHRITE MANTLE CLOCK the urn-shaped hardstone body with white enamel rotating dial with Roman chapters, the hours indicated by the head of a snake held by silver-gilt scrolls on a rectangular nephrite base decorated with scrolling foliage enclosing two rosettes, on tapering plinth, surmounted by a two-colour gilt bouquet of lilies and carnations, the rim of the vase with a cluster of roses – by Fabergé, inv no. 46822, the movement signed Hy. Moser & Co. St. Petersburg, height 11 in. (28cm). Original fitted wooden case stamped with Imperial Warrant, K. Fabergé, St. Petersburg, Moscow. Provenance: Presented to Dr Johann Georg Metzger by Tsar Alexander III in December 1893. The inv. No. 46822 relates to a set of numbers used by the St. Petersburg workshop during the second half of the year 1893. According to the records kept in the Russian State Historical Archives (Fond 468, op. 32, d. 1623, list 4), the clock appears on a sale or return invoice to the Imperial Cabinet on 23 December 1893: Clock jadeite, Louis XVI, Price 2,000 roubles. The final invoice is dated 8 January 1894. (Information kindly provided by Mr Valentin V. Skurlov). Dr Metzger (1838-1909), a Dutch citizen and doctor specializing in therapeutic gymnastics, famed for his use of massage treatment, was summoned by Emperor Alexander III to St. Petersburg and arrived there on 2 April, 1886 to treat the Imperial Consort. On 26 May of the same year Dr Metzger was awarded the Order of St. Stanislas for his services. Early in 1892 he was again called to St. Petersburg to treat the back injury of Grand Duchess Olga Alexandrovna who had been hurt in the Borki railway disaster on 29 October 1888. The Imperial train had been travelling to Kharkov when two explosions severely damaged the carriages. Emperor Alexander III escaped first from the crushed dining car and held up the heavy iron roof which had collapsed to release the children and the Empress. During his second visit Dr Metzger received a generous honorarium of 30,000 roubles as well as the clock as a present. He later received the Order of St. Stanislas First Class with diamonds. Dr Metzger’s other patients included the Empress of Austria, Empress Eugenie of France, the Duke of Nassau and the Duchess of Saxe-Coburg-Gotha, (cf. Exhibition catalogue, Dr Johann Georg Metzger 1838-1909 en zin tijd, Leiden, 1978). This clock is similar in design to the Imperial Easter Egg presented to Empress Alexandra Feodorovna in 1899. This so-called Madonna Lily Egg (p. 14, fig. 4) made by workmaster Michael Perchin forms part of the collection of the Armory Museum of the Moscow Kremlin.”
[130]An immediate point to be made about this description is that it is internally self-contradictory. It says first that the clock was presented to Dr Metzger in December 1893. Next it says that it was during Dr Metzger’s second visit to St. Petersburg that he received the clock, whereas “later” he received the Order of St. Stanislaus First Class. The second visit is correctly described as “early in 1892”, so that unless that visit is presumed to have lasted for very nearly two years, which it is known it did not, these two accounts are inconsistent, and moreover inconsistent in a manner which is highly relevant to the integrity of the story and its relevance to provenance of the piece.[131]The first or at any rate an earlier version of this catalogue entry did not fall into this error. That version recorded the inventory number (in fact wrongly transcribed but nothing turns on that) but did not attribute the piece to Fabergé at all. The provenance was not said to be a presentation by the Tsar in 1893. The provenance was given as:
“Dr Johann Georg Metzger, acquired in St. Petersburg about 1892.”
Likewise the reference in this first draft to “the second visit” read:
“During his second visit Dr Metzger received a generous honorarium from which he is said to have acquired the clock. He later received the Order of St. Stanislaus First Class with diamonds.”
The internal inconsistency in the final version to which I have referred above is introduced by attempting to reconcile the Dr Metzger family tradition with the January 1894 invoice, which is of course impossible, particularly when it is known from other sources that “the second visit” lasted approximately one month.[132]It is also notable that whereas the first draft referred simply to “Fitted wooden case stamped with Imperial Warrant, K. Fabergé, St. Petersburg, Moscow” by the final version this had become “original” fitted wooden case etc. The responsibility for drafting the catalogue description was, in the first instance, that of Mr von Solodkoff, but I do not think that either he or Dr von Habsburg were asked at trial why, in the first draft, there was a reference to the similarity in design to the Madonna Lily Egg presented to the Empress Alexandra in 1899. They would both have known, since their own published work pointed it out, that this similarity, so far as it went, if anything told against the Dr Metzger Egg Clock being a pre-1899 creation of the Fabergé workshops. Although not established in evidence, the inference is irresistible that Mr von Solodkoff had available to him at this time and in large measure relied upon the Sotheby’s 1991 catalogue description. It may be significant that whereas Sotheby’s had described the two clocks as “close in design” Mr von Solodkoff’s draft records only a similarity. I do not think that by including this reference Mr von Solodkoff was attempting to hint that the Dr Metzger Egg Clock should itself be regarded as likely to have been made by Fabergé, still less by workmaster Mikhail Perkhin. I think that he was simply including this comment by way of an interesting comparison, particularly since the exhibition was to be organised by rooms and the Dr Metzger Egg Clock was to be placed in the Mikhail Perkhin room.[133]Finally, and perhaps most importantly, it should of course be noted that the catalogue entry in its final published form wrongly records the invoice description as being the style of Louis XVI whereas of course what was written on the invoice was Louis XV. This provides the clue to how Mr von Solodkoff and Dr von Habsburg allowed themselves to be persuaded, in reliance upon the invoice or what they were told about it, to sanction an entry which positively described the piece as by Fabergé, whereas the invoice, as I have shown, was in fact irreconcilable with the Metzger family tradition. In the result they sanctioned a catalogue entry which on careful analysis does not stand up to scrutiny.[134]Dr von Habsburg had seen the Dr Metzger Egg Clock at the auction in 1991 and subsequently at the 1992 exhibition. As I have already recorded it was in 1994 that he publicly portrayed its description as being an “Imperial” piece by Mikhail Perkhin as being the result of “slipshod scholarship”. Mr von Solodkoff first saw the piece at the meeting in the bank in Paris in December 1999. He did not then, indeed he did not at any material time know about Dr von Habsburg’s article. Although they did not at this stage share their doubts with Mr Kamidian, neither Mr von Solodkoff nor Dr von Habsburg were convinced that the piece was by Fabergé. Dr von Habsburg saw it as an interesting and controversial item. He and Mr von Solodkoff were inclined to include it in the exhibition but they intended to say no more about it than that it was “attributed to” Fabergé. Dr von Habsburg explained that he has included in exhibitions controversial pieces simply because it is interesting to show an item and to provoke discussion and further opinions on the piece. His main aim in including it was for discussion purposes, as a possible Fabergé, but only as an attribution.[135]In fact the first draft of the catalogue was even more cautious than that, as I have already set out. The piece was not even described as attributed to Fabergé, although the case was recorded as duly stamped. Significantly there was an equally cautious description of the hardstone parrot which was said only to be “attributed to the firm of Denisov-Uralski”. Although the evidence did not reveal exactly how this came about, it seems likely that Mr von Solodkoff must have sent to Mr Kamidian in late March 2000 his first draft of these two descriptions. Mr Kamidian was very unhappy and indeed upset about both. He and Mr von Solodkoff had a discussion over the telephone in which Mr Kamidian expressed his insistence that both should be described as definitively “by” their reputed creators. In order to persuade Mr von Solodkoff he faxed to him on 1 April 2000 what was said to be a copy of the original Denisov-Uralski invoice relating to the parrot. Mr Skurlov at Mr Kamidian’s request also sent to Mr von Solodkoff by fax the same day the “Examination Report” and “Archive and Historical Information Note” to which I have referred at paragraph 105 above. In fact Mr von Solodkoff seems to have been showered with documents by Mr Skurlov. Mr Skurlov sent two “examination reports”, the second sent being significantly longer than the first. Both contained the same error concerning the invoice. The second as it happens, on the second page, goes on to discuss Madame Fabergé’s photograph of the candlestick, describing it as Louis XV, and remarking on the stylistic similarity of the candlestick and the clock, both being “Louis XV style”. A fourth document described the wooden cases for both the Dr Metzger Egg Clock, there described as a clock in the style of Louis XV, and the case for the parrot by Denisov-Uralski. What Mr von Solodkoff particularly noticed and fastened onto was that the examination report referred to an invoice, said to be associated with the clock, and set out what was said to be the description of the clock in the invoice, which of course accorded with what he already knew, viz, that the clock is in the style of Louis XVI. Amidst this welter of documents Mr von Solodkoff did not pick up the inconsistencies between them. Although there was understandably some confusion about this at trial, it appears that he relied upon the one which arrived first on his fax machine. As he remarked in his evidence “I can’t check each different expert report from Mr Skurlov, whether Louis XVI is correctly included or not”. At all events it is clear that Mr von Solodkoff thought that he was being told by Mr Skurlov that the invoice described the clock as being in the Louis XVI style. He so reported to Dr von Habsburg, to whom he did not send copies of the reports. The reports are written in Russian which Dr von Habsburg does not read. Mr Skurlov did not send to Mr von Solodkoff a copy of the invoice itself. Mr von Solodkoff also explained to Dr von Habsburg that Mr Kamidian was very upset that in the draft catalogue entry the clock was not described as by Fabergé. It seems likely that the question of attribution of the parrot was also discussed. As it happens the parrot was a piece that Dr von Habsburg was particularly keen to have included in the exhibition. Denisov-Uralski was a competitor of Fabergé and the parrot was supposed to have belonged to the Dowager Empress Maria Feodorovna and not to have been seen previously. According to the final draft catalogue entry the Dowager Empress Maria was very fond of parrots and had them portrayed in hardstone not only by Denisov-Uralski but also by Fabergé. Dr von Habsburg described Denisov-Uralski as a “totally enthralling craftsman about whom not enough is known”. The parrot’s provenance as having belonged to the Dowager Empress made it “a truly desirable object”.[136]Faced with Mr Skurlov’s findings and in particular his description of the contents of the invoice, which seemed consistent with the clock which they knew to be in the style of Louis XVI, Mr von Solodkoff and Dr von Habsburg decided to take the line of least resistance. They gave in to the insistence of Mr Kamidian whom they did not wish to upset. They formed the view that if they did not suppress their misgivings over Mr Kamidian’s “cherished” clock there was a real risk that he would simply withdraw all of the items which he had agreed to lend to the exhibition. It seems that Dr von Habsburg was in fact rather more keen to exhibit the parrot than the clock, and was in some sense willing to go quietly on the latter so as not to imperil the appearance of the former. Mr von Solodkoff and Dr von Habsburg had no reason, certainly not in the year 2000, to doubt what Mr Skurlov had said about the invoice. Had they seen the invoice itself or been told that it described the clock as being in the style of Louis XV, “all the flags would have been up instantly because the piece has nothing to do with Louis XV whatever”. As it was they had a catalogue of over a thousand pieces to prepare. A description in an exhibition catalogue is something very different from a description in sale particulars. Legal responsibilities are involved in making representations in the latter context but not ordinarily in the former. Once the decision was made, which ultimately was Dr von Habsburg’s, he did not give it much, if any, further thought. Ironically the parrot was not in the event included in the exhibition. The evidence did not reveal precisely why, although Dr von Habsburg thought that it was because either Mr Kamidian had sold it or that he had given it in guarantee for a debt and that whoever held it at the time declined to allow it to be exhibited. Whilst it has been the subject of minute attention in this trial, I derive the impression that this decision as to one out of a thousand descriptions in the catalogue was not really a matter of any very great importance to either Mr von Solodkoff or Dr von Habsburg. It might seem strange that apparently entrenched misgivings could be so easily overborne, particularly where the invoice, as I have sought to show, in fact by reason of its date presented rather more problems than it solved. However I do not think that it occurred to either Mr von Solodkoff or Dr von Habsburg that they were in this manner putting their professional reputations on the line. They simply did not see it that way, which is perhaps an indication that exhibition catalogue descriptions should be approached with some caution. I have no doubt that the matter would have been approached differently had Mr von Solodkoff and Dr von Habsburg been concerned with the preparation of sale particulars. That remains the acid test, as Mr Ruzhnikov trenchantly reminded the court.[137]It was in the context of this decision that Mr von Solodkoff told me, in answer to my leading question, that simply by looking at the egg clock and handling it, as he had done, there was nothing about it which caused him to doubt its authenticity. I was surprised at that answer. It seemed to me potentially to set at nought all or most considerations of artistic merit. Likewise, it seemed to me to some extent to set at nought any notion of an experienced and knowledgeable evaluation of the quality of materials and workmanship. Both Mr von Solodkoff and Dr von Habsburg, as defendants to the claim, do of course have an incentive to say that they were mistaken in agreeing to the positive attribution of the piece to Fabergé. However they are not the only defendants to the claim. I have to assess their evidence as it affects the overall position, particularly that of underwriters who could properly be regarded as the principal defendants to the claim. Dr von Habsburg for his part said that “the quality of the piece itself does not speak for Fabergé”, as did both Mr Dale and Mr Ruzhnikov in different language. I think that I should discount Mr von Solodkoff’s answer which I have set out above. I suspect that he assented to my proposition in order to avoid looking even more foolish than he no doubt already felt. I think that on this point I should be guided by Dr von Habsburg, who “dreaded” being asked the same question. He recognised that he had been blinkered in his approach, shutting his eyes to his gut feeling based on thirty-five years of handling Fabergé pieces and knowing what to expect of them, in particular the superlative quality of the workmanship. I do not think that Dr von Habsburg’s reservations were ever in fact set aside. I do not think that Mr Skurlov’s archival discovery was sufficient to allay his doubts. I think that this is borne out by a conversation which, as I find, Mr Ruzhnikov had with Dr von Habsburg at the Wilmington exhibition. In view of his previous experience with Mr Kamidian over the Dr Metzger Egg Clock Mr Ruzhnikov queried its inclusion in the exhibition. Dr von Habsburg told Mr Ruzhnikov that the inclusion of the piece had been based upon apparently new archival information found by Mr Skurlov. Mr Ruzhnikov expressed his doubts about the reliability of Mr Skurlov’s scholarship. Dr von Habsburg said words to the effect that he recognised that he had made a mistake but that it was too late to do anything about it as the catalogue was printed and the exhibition had begun. That Dr von Habsburg’s doubts were never allayed is further borne out by what Dr von Habsburg told Nicole Sheley when she was investigating the damage to the single bud – see paragraph 19 above. Dr von Habsburg did not recall, or in the second case did not clearly recall, either of these conversations, but the second is evidenced by a contemporaneous note and I see no reason to doubt Mr Ruzhnikov’s account of the former. It would have been entirely in character for Mr Ruzhnikov to have raised the point and to have challenged Mr Skurlov’s scholarship, and what he recollects being told of the circumstances in which Dr von Habsburg came to include the piece as “by Fabergé” is entirely consistent with what had in fact happened. The account is set out in Mr Ruzhnikov’s Witness Statement. He would not have known this detail unless either Mr von Solodkoff or Dr von Habsburg had told him and I think it unlikely that they had discussed the litigation. Finally Dr von Habsburg said in evidence repeatedly that he continued to have his reservations, in spite of Mr Skurlov’s apparent evidence. His gut feelings prevailed. Despite agreeing to the catalogue entry, he had no firm conviction of the item being by Fabergé. I am quite satisfied that Dr von Habsburg’s evidence was honest and straightforward.

Conclusions on provenance and misrepresentation

[138]My conclusion in the light of the evidence deployed at the trial is that the Dr Metzger Egg Clock is not by Fabergé. That is of course a conclusion on the balance of probabilities, but it is a conclusion the evidence for which I regard as compelling. It is also I think an unsurprising conclusion. It would have been a surprising conclusion that the experts at Sotheby’s and other informed persons who attended the 1991 sale in Geneva had failed to spot a hitherto unknown masterpiece which is in consequence of far, far greater value than the price for which it was knocked down at auction.[139]It is my equally clear conclusion that in 2000 when the insurance was placed there was no general acceptance that the Dr Metzger Egg Clock was an authentic Fabergé piece. Insofar as there was a consensus at all it was to the opposite effect. The piece was not of course well known. It had not been seen in public since 1992. However it had been sold publicly by Sotheby’s in November 1991 on the basis, made explicit in the catalogue description and in the price estimate, that Sotheby’s Russian experts did not consider it to be by Fabergé. Its subsequent description in the 1992 Tsarskoye Selo exhibition catalogue as being a Fabergé piece had been publicly denounced by Dr von Habsburg. At least three attempts to sell the egg clock as a Fabergé piece had failed. The market in which they failed is a limited one restricted to a relatively few people. At least one of those known to be involved in a failed sale, Mr Ruzhnikov, was well-known in that limited market. The view publicly propounded by Mr Skurlov was a minority view. The implied representation to underwriters that the clock was generally accepted by the art world as being a Fabergé was untrue.[140]Equally, I have no doubt that Mr Kamidian did not himself, at any stage in 2000, believe either that the Dr Metzger Egg Clock was generally accepted in the art world as being by Fabergé or that it would be so accepted were the matter put to the test. Mr Kamidian was I find reluctant that the matter should be put to the acid test of an appraisal by a major auction house and subsequent exposure to the market at a public auction. Even if he regarded Sotheby’s as having in 1991 made a mistake, there could be no objection to the clock being appraised by Christie’s, with whom Mr Skurlov of course had, and still has, an association. Mr Kamidian knew in 1991 that the piece was not generally accepted as being by Fabergé. He knew that his efforts to convince the art world of its provenance by the manner in which he both exhibited it and described it in 1992 had failed, in the sense that it had led to public denunciation by Dr von Habsburg which had confirmed to the possible United States purchasers the doubts which they had heard expressed elsewhere. He knew that his own and Roger’s attempts to sell the egg as a Fabergé had failed. Whilst the invoice had been discovered in 1992 it was not until 1995 that Mr Skurlov apparently associated it with the Dr Metzger Egg Clock. Even the discovery of the inventory number in that year evidently did not dissuade Roger from selling his half share for a sum which seems likely to have been less than US$145,000 and cannot on any view have been consistent with a belief on Roger’s part that there was general acceptance that the egg clock was by Fabergé. Even if Roger was unaware of these discoveries, I do not accept that in the light thereof Mr Kamidian came genuinely to believe that the clock would, if the matter were again put to the test, be generally accepted as an authentic Fabergé piece. The circumstances of the non-inclusion of the Dr Metzger Egg Clock in the 1997 book again militate against any genuine belief that the piece was or would be generally accepted as authentic. On my findings as to what transpired, this incident would have merely served to confirm that the piece was not so accepted. There followed the rebuff at the hands of Mr Ruzhnikov. Mr Kamidian can of course point to his success in persuading Mr von Solodkoff and Dr von Habsburg to describe the piece as by Fabergé in the catalogue for the Wilmington exhibition. However I am not persuaded that this would have led him to think that the piece had at last gained general acceptance as authentic. He would have known full well that a catalogue description is a far cry from sale particulars. Indeed following his own performance in 1992 in relation to the catalogue for the Tsarskoye Selo exhibition he must have had this point very well in mind. He knew that exposure to a major auction house would still provide the acid test. My view in this regard is reinforced by what later transpired. Mr Kamidian’s insistence that underwriters should agree depreciation before the item was repaired seems to me oddly defensive conduct. Likewise Mr Kamidian’s conduct in declining to countenance repairs until the conclusion of litigation, itself started more than five years after the damage had been incurred, is not I think consistent with a genuine belief that the piece would, if publicly exposed, be generally regarded as authentic.[141]For the reasons I have already set out I have concluded that Mr Kamidian’s own subjective belief at the time of placement of the insurance as to the provenance of the Dr Metzger Egg Clock is irrelevant to any issue which I have to decide. In case I am wrong about that I should briefly record the view which I have formed after hearing Mr Kamidian give his evidence and having had the opportunity to reflect on the matter in the light of all the other evidence which I received. I remain unpersuaded that Mr Kamidian did in fact believe that the Dr Metzger Egg Clock was by Fabergé. There was in my judgment no rational basis for such a belief, and I do not accept that Mr Kamidian would have clung to an irrational belief. Mr Kamidian is an obviously intelligent man and is I suspect a shrewd man of business. Although in his Witness Statement and in his oral evidence he put forward various reasons for so believing, such as for example “the extraordinary skill involved in the nephrite carving” to which he had referred in his article in the 1992 catalogue, none of these reasons stood up to close scrutiny when he was cross-examined about them. The nephrite carving is no doubt skilful but there is nothing extraordinary about it. Some of the reasons he put forward were simply circular and self-serving, as he must have realised. For example, he suggests in paragraph 53 of his Witness Statement that he had asked himself in 1991 why would the Imperial family give Dr Metzger a fake Fabergé egg. I cannot accept that it will not have occurred to Mr Kamidian, who will have known better than most that in the world of Fabergé seemingly plausible but nonetheless inaccurate stories as to provenance abound,(a) that it is quite possible that there is simply no truth whatever in the story that the clock was given to Dr Metzger by the Imperial family and(b) that even if there is, there is no reason to believe that the donor of the gift represented it to be something which it was not. As Mr Neish submitted, a rational question which an intelligent man might have asked himself is why would the Empress, Dr Metzger already having received a huge fee and other documented gifts, specially commission from Fabergé or from Mikhail Perkhin an Imperial quality egg of the sort only otherwise given as an Easter gift by the Tsar to his wife and then give it to her foreign doctor in circumstances of apparent secrecy even from the most trusted servants of the Imperial household? I think it very unlikely that Mr Kamidian can really have thought in 1991 that he knew better than the experts at Sotheby’s or indeed better than every other dealer who attended the auction in Geneva. His conduct thereafter is in my judgment not consistent with a bona fide belief that the piece was by Fabergé but rather with a belief that there was a prospect that he might persuade a purchaser that it was. He may well not have seen a copy of the invoice which Mr Skurlov discovered in 1992 and he may therefore have been as misled by what Mr Skurlov said about the invoice as were others subsequently. However he cannot have failed to realise that the date did not square with the Metzger family tradition. Furthermore Mr Kamidian did not tell Madame Fabergé about either the discovery of the invoice or the discovery of the inventory number, which I think he would have been likely to have done had he invested them with the importance which he now ascribes to them. Finally, my assessment of Mr Kamidian’s evidence as a whole, particularly his evasive evidence as to the co-ownership and insurance issues, is such that on any question incapable of independent corroboration I cannot have confidence in his account. I have considered carefully whether the apparent implausibilities in that account are simply to be explained by the informality and trust which apparently accompanies some transactions in the world of fine art. However whilst I have recorded at paragraph 6 above that that may supply a partial explanation, it does not enable me to conclude on the balance of probabilities that Mr Kamidian at any material time honestly believed that the Dr Metzger Egg Clock was created in the Fabergé workshops.

Non-disclosure

[142]I do not need to grapple with the question of the knowledge of the various intermediaries who were instrumental in placing the insurance and the question to what extent, if at all, their knowledge had to be disclosed. Nor is it necessary to consider what in the ordinary course of business ought to have been known either by the intermediaries or by Mr Kamidian himself. In my judgment the underwriters should at the very least have been told that the piece which they were being invited to insure at an agreed value of US$2.5m on the basis that it was by Fabergé had, on the only occasion on which it had been publicly sold, in the relatively recent past, not been described by the auction house Sotheby’s as by Fabergé and had not been sold at a price remotely commensurate with its being regarded as by Fabergé. That alone indicated that there was a serious doubt over provenance. That was something that was known by Mr Kamidian and which in my judgment it was his duty to ensure was disclosed in the context of an application for insurance which he knew was to be placed on a valued basis and was to enure for his benefit. Mr Kamidian could of course if he had so wished have sought to justify his valuation by reference to subsequent events. However underwriters should in these circumstances have been given the opportunity to decide for themselves whether the lender’s assertion of provenance and thus value was something which they were prepared to accept. They were at the very least entitled to know that this piece had generated a debate.

Materiality and inducement

[143]In the context of a valued fine art policy there can be no sensible argument about the materiality to the assessment of the risk of both the misrepresentation as to the general acceptance by informed opinion of the piece as authentic and the undisclosed doubts and/or uncertainties as to provenance, in the shape of Sotheby’s explicit description of the piece by reference to which it was sold at auction for a price incompatible with general acceptance as an authentic Fabergé piece. The evidence on materiality of underwriters’ expert witness Ms Annabel Fell-Clark was not seriously challenged. Underwriters would not ordinarily wish to enter into a debate as to provenance or to take a risk as to how it might be resolved. They might simply decline the underlying risk. They might, although I think that this would be likely to be rare, seek the opinion of other experts. In certain circumstances, as Ms Fell-Clark explained, if a piece had been purchased at a relatively low value but the owner thought that it could now be sold for more, underwriters might be prepared to consider some form of compromise or costs plus an uplift basis.[144]This approach was borne out by the evidence of Mr Keith Nichols, one of the three leading underwriters who wrote the risk to whose evidence I have already referred at paragraph 40 above. He thought that he was being asked to quote for and to cover a piece which was unequivocally a Fabergé piece. If that was a matter about which experts had doubts, such as for example where they could only describe a piece as “attributed to Fabergé”, he would expect to be told about those doubts. The presentation was such as to make him believe that there were no doubts. Had he been told of doubts as to the provenance of this piece it is unlikely that he would have sought a specialist valuation. He would not have wanted to get into the question whether the value proposed was correct. In all probability he would simply have declined to cover that piece. That would have been his normal approach.[145]I did not hear detailed argument on the nature of the remedy to which underwriters are in consequence entitled and the question is in the light of my earlier findings academic. In their pleading underwriters claimed an entitlement to rescission and avoidance of the policy “or that part thereof concerned with the Dr Metzger Egg Clock”. The Master Certificate of Insurance to which I referred at paragraph 39 above describes the assured as “Broughton International Inc and/or Riverfront Development Corporation of Delaware and/or Forbes Inc and/or the State Kremlin Museum and/or for whom they may have instructions to insure each for their respective rights and interests” and records that individual certificates of insurance were issued to lenders where required. As set out at paragraph 38 above, a separate Memorandum and Certificate of Insurance was indeed issued in respect of the Kamidian collection valued at US$3,831,000 which described “the Kamidian collection” as a “Memorandum Holder” and “Additional Insured under the Master policy”. Given the manner in which the insurance was placed by reference to the separate schedules relevant to each lender, and the documentation drawn up, it is I think both appropriate and realistic to regard the insurance in relation to the Kamidian collection as a separate, discrete and divisible contract of insurance, capable of being rescinded and/or avoided whilst leaving the balance of the cover unaffected. Insofar as they are different remedies, and insofar as they have not already validly availed themselves of them, underwriters are in my judgment entitled both to rescission and to avoidance of the contract of insurance concerning the Kamidian Collection.[146]In the circumstances it is unnecessary to lengthen this judgment by discussion of underwriters’ further reliance upon the inherent vice exclusion or the Packing Condition set out at paragraph 39 above. I have already made findings relevant to Mr Kamidian’s attempt to suggest that underwriters are estopped from reliance on an alleged breach of the Packing Condition in relation to the return journey. Underwriters’ reliance upon both inherent vice and an alleged breach of the Packing Condition raises interesting and difficult questions which are of general application and importance far beyond the facts of this case. Since in my judgment those issues do not here arise for decision, it is better that I say nothing about them. Those arguments will be available to underwriters should the matter go further.[147]As I have recorded at paragraph 82 above, there must be judgment for the Claimant against the Fifth Defendant in the sum of £1,000.00. The claims against the First, Second and Fourth Defendants fail and are dismissed.