In cases where technical and documentary evidence is insufficient to prove the authenticity of a work of art, the English courts will rely heavily on expert (or connoisseurship) evidence. In attribution cases, the calibre and experience of those appointed will have a significant bearing on the outcome of the case.
In 2005, Christie's was commissioned to sell the oil painting 'Odalisque'. In its sale catalogue it attributed the painting unequivocally to the Russian artist Boris Mikhailovich Kustodiev. Avrora Fine Arts Investment, a vehicle for a Russian collector, bought the painting for £1.68m, ten times the Christie's estimate. Following the sale, doubt was expressed as to its authenticity. Avrora approached Christie's with its concerns in 2006 but nothing came of the discussions.
In 2010, Avrora issued a claim in the High Court in London for negligence, misrepresentation and breach of warranty. The trial took place over 17 days in the summer of May 2012 and was concluded in Avrora's favour. Christie's was not held to be liable in negligence or misrepresentation due to certain disclaimers in its auction catalogue. However, it was held to be in breach of the warranty it gave that the painting was 'authentic' and not a 'forgery'.
Christie's was ordered to refund the purchase price as well as a reputed £1.4m in costs.
When litigants look to the courts to determine attribution, they are seeking a 'yes' or 'no' answer.
The question for the court is whether, on the balance of probabilities, the artwork is by the artist.
While it is hardly unusual for judges to give judgment on all manner of matters on the basis of the evidence of experts, judges have expressed a greater reliance on experts when it comes to issues of aesthetics. In Drake v. Thos. Agnew & Sons Ltd  EWHC 294 (QB), a case involving the authenticity of a painting attributed to van Dyck, Buckley J said:
'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...Whilst it is vital [for the expert] 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 this is not all. It involves also a sensitivity to such concepts as quality, emotion, mood and atmosphere. ...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 appreciate of things artistic, I must not presume to have an expert's 'eye' for a van Dyck...'.
The judge in Avrora was reliant in the same way on those with an 'eye'.
Expert evidence in Avrora
The judge considered the evidence under three headings: historical, technical, and connoisseurship. He found the historical and technical evidence, which included examining the pigment in the inscription to establish whether it was contemporary with the rest of the painting, to be inconclusive. However, he found the connoisseurship evidence to indicate quite strongly that Kustodiev did not paint 'Odalisque'.
The connoisseurship evidence
The court was concerned with whether 'Odalisque' was consistent with Kustodiev's other works. This involved comparing the characteristics of the painting with other paintings or drawings that were known to be by Kustodiev. Avrora's expert, Mrs Lyubimova, had worked for years at the State Russian museum where she was leading research fellow in art of Kustodiev's period. She had been familiar with Kustodiev's work for many years and in 1997 was appointed custodian of 19 of the 89 paintings by Kustodiev held by the museum.
Christie's argued that she lacked objectivity because she had personally signed the certificate from the State Russian Museum rejecting the painting as authentic. Although the judge did not accept this he did find some of her points less convincing that others. However, overall he was left in no doubt as to her belief that 'Odalisque' was not painted by Kustodiev. He described her as an 'impressive' and 'compelling' witness.
Christies' expert, Mr Rutherston, had provided consultancy services to Bonhams on 19th and 20th century Russian pictures and had acquired an in-depth knowledge of Kustodiev only quite recently. He explained in his first report that prior to the present proceedings he would not have described himself as particularly expert in Kustodiev's works as opposed to those of Russian artists generally. In cross-examination, he also accepted that he had never really had any contact with Kustodiev before this case.
The judge found Mr Rutherston's evidence impressively measured and persuasive and openly preferred his common-sense view in some respects to that of Mrs Lyubimova. However, at the end of the day, he preferred Mrs Lyubimova' evidence over that of Mr Rutherston.
The judge was in the experts' hands when it came to considering Kustodiev's artistic 'handwriting'. Although both were well respected and impressed the court in their separate ways, Mrs Lyubimova's more extensive and relevant experience of this particular artist seems to have tipped the balance in her client's favour.
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