Professor Brian Clarke v Marlborough Fine Art (London) (Ltd) & Ors (2002)
Expert opinion from a lawyer specialising in art law was not likely to provide the court with material assistance in determining the issues of liability in an action concerning alleged breach of fiduciary duty owed by a gallery to an artist.
Claimant's application to adduce additional expert evidence in a claim against the defendant art gallery ('Marlborough') that it had acted in breach of a fiduciary and/or agency relationship with the artist Francis Bacon ('Bacon') in relation to the marketing and exploitation of his paintings. The claimant had already served a report by a private art dealer ('H') in accordance with a directions order of 23 May 2001. They now sought to adduce a report by a lawyer specialising in art law ('S'). The application was resisted by the defendants on the grounds that S did not possess the necessary expertise in order properly to deal with the issues on which he had been instructed and that his evidence was not necessary for the just determination of the issues involved. The claimant submitted that the evidence provided by S on the terms made available to Bacon compared to those he might have obtained in the market at the time was relevant to two important issues: (a) manifest disadvantage; and (b) whether Bacon had received independent legal advice.
(1) The court adopted the approach on admissibility set out by King CJ in the Australian case of R v Bonython (1984) SASR 45, referred to by Evans-Lombe J in Barings plc (in liquidation) v Coopers & Lybrand (2001) Lloyds Report PN 379. (2) The evidence contained in S's report was not likely to provide the court with material assistance in determining the issues of liability in this action. (3) For the issue of manifest disadvantage to arise the court would first have to be satisfied that the relationship between Marlborough and Bacon was fiduciary in nature. Although ultimately a question of law this was essentially a factual enquiry. Thereafter, the court's attention would become focused on the terms upon which Bacon continued to deal with Marlborough. The court could perfectly adequately assess whether the terms agreed with Bacon were significantly out of line by knowing market rates and conditions at the relevant time. This was essentially factual information and much of it was contained in H's report. S's report added no relevant factual information and was more likely than not to give rise to a further layer of expert evidence leading to a dispute that was largely hypothetical. (4) The issue of whether Bacon in fact obtained independent legal advice in relation to his arrangements with Marlborough or whether solicitors advising him on other matters should have noticed any undue influence and intervened was an even less appropriate matter for expert evidence.