Professor Brian Clarke (Executor of the Will of Francis Bacon) v Marlborough Fine Art (London) Ltd


The claimant had an arguable case, which he would be permitted to plead by way of amendment, that after 1964 a fiduciary duty was owed by the defendant to the artist Francis Bacon in relation to the marketing and exploitation of his paintings.


Application by the claimant ('C') for permission to amend his particulars of claim to add claims that the defendants ('Marlborough') had acted in breach of a fiduciary and/or agency relationship with the artist Francis Bacon ('B') in relation to the marketing and exploitation of his paintings. In 1958 B entered into an exclusive marketing and exploitation agreement with Marlborough. That agreement was terminated in 1964. However, C (in his capacity as the executor of B's estate) contended that after that termination there continued to exist an arrangement/relationship between Marlborough and B which was fiduciary in nature, or alternatively was that of principal and agent, which imposed a duty of loyalty upon Marlborough and which required it to account to B for the profits that it derived from exploiting his works. By his original pleading C contended that this agency/fiduciary obligation arose out of the 1958 agreement. By the amended pleading C sought to abandon reliance upon any underlying contractual basis for the obligation and instead relied upon the dealings between B and Marlborough both before and after 1964. Marlborough contended that the particulars of claim, whether as originally framed or in the proposed form of the amended pleading, disclosed no reasonable grounds for bringing the claim, and hence failed to satisfy the threshold tests prescribed by CPR Part 3 and CPR Part 24.


On the basis of the evidence presently adduced the court was satisfied that C had established an arguable case that a fiduciary relationship existed between Marlborough and B in relation to the exploitation and marketing of his works after 1964, sufficient to satisfy the threshold tests in CPR Parts 3 and 24.. The factual matters in issue and the inferences that were properly to be drawn from them were matters that could only be resolved after a detailed examination at trial.

Permission to the claimant to amend the particulars of claim.