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JTC Asking the Experts: Art Litigation

24th Jun 2021
Artwork can be held as an investment to enjoy or as part of a client’s succession planning for future generations. But purchasing and owning art is not always straightforward, and there are times when things go wrong.

We asked Gilead Cooper QC of Wilberforce Chambers to share some of the most common pitfalls and explain when clients should seek specialist legal advice.

What are the most common pitfalls you see that lead to art-related litigation?

All happy cases are the same, but every unhappy case is unhappy in its own way: the varieties of litigation are infinite. Having said that, there are a few issues that are unique to Art Law cases that crop up repeatedly in one form or another.

The first, and perhaps most common, type of claim arises when an artwork has some Holocaust-related association. These involve claims by a descendant or relative of a pre-War owner that the artwork was misappropriated under Nazi rule. The claim may be against a gallery or other institution, or against a private owner or dealer (typically when the artwork comes onto the market). In England, there is a special tribunal, the Spoliation Panel, which has jurisdiction by statute to make recommendations in claims made against public galleries and museums; unlike a court, it may take into account “ethical” as well as purely legal arguments.

The second type of cases are claims for restitution by a government or governmental body for restitution of an artwork that is alleged to have been looted at some point in the past – sometimes many centuries ago.

The third are disputes as to the authenticity of a work of art that has been sold privately. I am currently involved in two such cases concerning antiquities that are now said by the buyer to be modern forgeries. The evidence covers both art-historical and stylistic issues and scientific analysis.

Fourthly, items unearthed during excavations or building works may be caught under one of several statutory provisions applying to “treasure trove”. There are a number of such provisions that can affect property developers.

Fifthly, owners wishing to move artworks between jurisdictions need to consider the need for export licences. High-profile artworks are likely to attract a good deal of publicity.

Sixthly, there may be disputes as to the validity of a seller’s title. Such claims are not, of course, unique to works of art, but potential buyers should always check the Art Loss Register before finalising any purchase.

Can you tell us about any of the most interesting cases you have worked on?

I’m afraid the answer is no, I can’t. One of the most common features of art law cases is that they are often highly confidential, and the more famous the artwork, the more sensitive the clients. Quite apart from the collectors’ wishes for privacy, the merest hint of a defect in title, or doubt about authenticity, or association with war crimes, can have a catastrophic effect on the market value of a work of art – even if the allegation turns out to be spurious.

On the other hand, a few cases do come to court, and those that do usually attract some press coverage. For example, I was involved in a case about a painting by Constable, Beaching the Boat, which went before the Spoliation Panel. Eventually the Tate handed it over to the descendants of a Hungarian collector who had owned it before the War, and this was quite widely reported.

I also acted recently as sole arbitrator in a claim against a well-known gallery brought by a disgruntled purchaser. The claim turned on the dealer’s Standard Terms and Conditions, but raised some interesting question of the status of a works “provenance” and the valuation of the works in dispute.

What I can say is that art-related cases are among the most interesting cases that come my way. They frequently involve historical as well as legal analysis; the subject-matter – and often the personalities involved – is invariably interesting; and there are always unusual and difficult points of law, involving conflicts of laws and problems of limitation of actions.

When should clients come to you for help?

I am used to being brought into cases at every stage; sometimes as soon as a dispute arises, sometimes only a few days before trial. Obviously coming into a case at the eleventh hour is not optimal, and I would normally hope to be involved at every stage, including the preparation of witness statements and experts’ reports. But that is not unique to art law cases.

About Gilead

Gilead Cooper QC specialises in complex, high-value disputes, often involving allegations of fraud, breaches of trust and fiduciary duties and professional negligence. He also has “a notable specialism in matters involving art and antiquities” (Chambers & Partners). He has been involved in a number of restitution claims before the Spoliation Panel, and he often advises and represents major national museums and galleries.

Gilead Cooper QC

Wilberforce Chambers

+44 (0)20 7306 0102

[email protected]

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