Drake v Thos Agnew and Sons Limited: QBD 8 Mar 2002

The claimant sought the return of money paid by him for a painting. He said it had been sold to his agent as by ‘Van Dyck’ but subsequently proved not to be so. He had employed an agent to acquire the painting, but the agent had not disclosed to him a letter from the defendants, and had also altered the catalogue to improve the provenance. The buyer asserted it was a sale by description. The seller said these were statements of opinion.
Held: The claim failed. The statement as to the painter was a statement of opinion, and there was no express term making that opinion part of the contract. The buying agent was experienced and would expect no more. A judge should not presume to have a ‘expert’s eye’.
Buckley J discussed evidence relevant to the attribution of a painting: ‘Attribution of an Old Master can depend on various matters, including: provenance, historical research and the experienced eye of an expert, usually a trained art historian. In this case neither provenance nor history gives an answer or even very much help. The knowledge of van Dyck’s studio practice which art historians have acquired is certainly of some assistance, but in the end, both Sir Oliver and Mr. Agnew agreed the matter was to be resolved by ‘eye’. From listening to them both I understood that to mean rather more than just observation. Whilst it is vital to have keen observation it is also necessary to have knowledge of an artist’s methods and style and to be sufficiently familiar with his work to be able to recognise his artistic ‘handwriting’. Even that is not all. It involves also a sensitivity to such concepts as quality, emotion, mood and atmosphere. To an extent ‘eye’ can be developed but, like many other human attributes it is partly born in a man or woman. Were it otherwise there would be many more true experts. This is not a digression. It is rather important to my function in this case. A judge is not bound by expert opinion. A judge may presume to find that an expert’s final opinion is based on illogical or even irrational reasoning and reject it. But a judge should not himself assume an expertise he does not possess. Thus here, if the question had turned on analysis of historical data or inferences to be drawn from surviving documents, I would have been entitled, with such assistance from the experts as I had received, to have drawn my own conclusions; but it does not. It turns on ‘eye’. However I may regard my own taste or appreciation of things artistic, I must not presume to have an expert’s ‘eye’ for a van Dyck’.


The Honourable Mr Justice Buckley


[2002] EWHC 294 (QB)




Sale of Goods Act 1979 13


England and Wales


CitedOscar Chess Ltd v Williams CA 11-Nov-1956
Where somebody warrants something, the person giving the warranty binds himself or herself to it. Lord Denning suggested that the test of an interpretation was what an intelligent bystander would reasonably infer contracting parties had agreed upon. . .
CitedHarlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd CA 15-Dec-1989
The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig . .

Cited by:

CitedAvrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
Lists of cited by and citing cases may be incomplete.


Updated: 23 October 2022; Ref: scu.167727