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LOST & FOUND: Art theft — Kurtha vs Marks
Given the exponential rise in prices of contemporary art not only in Europe and USA but increasingly in the Middle East and the Indian Sub-continent, there now emerges the disturbing spectre of art forgeries, art thefts and misrepresentations which have significant financial consequences for art collectors, galleries and museums. A recent case in point is that of Aziz Kurtha vs Michael Marks (2008) which was heard in February 2008 in the Queens Bench Division of the High Court in London before Justice Tungendhat. It concerned a claimant (Kurtha) who alleged that two of his expensive paintings by Francis Newton Souza had been stolen from him and that they were now in the hands of the Defendant who in turn claimed that he had bought them as an innocent purchaser from another dealer without any knowledge of their theft.
The artist Francis Souza had visited Pakistan frequently in the 1970s and ’80s although he had moved to London from Goa in 1949 and thereafter moved to New York where he remained until his death in Mumbai in March 2002.
There are some painters’ works which are particularly prone to forgery and theft easily e.g. Sadequain, Chughtai or M.F. Husain, but not Souza. Here the claimant had documents to prove the purchase of the two paintings (a) Head of a Portuguese navigator (1961) and (b) Chalice with host (1953) which he obtained under an agreement with the artist in 1982. The Court accepted a photocopy of the Agreement which was not really challenged by the Defendant. Normally such thefts are referred to the Art Loss Register (London Tel. No. 0044 207 841 5780) who put it on their database (which presently stands at 170,000 items) of lost or stolen artworks and the major auction houses like Sotheby’s, Christies, Bonhams etc. are able to quickly check if paintings that they are putting up for sale have a dubious history.
Legal expense
The legal process for recovery is so expensive that generally claimants reach a settlement but in this case the Defendants had wanted £300,000 to return the paintings to the Claimant which was later reduced but the Claimant was not willing to pay a large amount. Thus, the matter went to Court at enormous cost with the Claimant spending approx. £350,000 on legal fees — he was represented by expert Queens Counsel John McCaughran.
“A dealer in valuable works of art who pays in large amounts of cash, keeps no records, and asks no questions as to provenance of his supplier, exposes himself, and those who buy from him, to other very serious risks.”
Evidence
The evidence indicated that Souza had visited Pakistan frequently and stayed with artists Bashir Mirza and Iqbal Durrani and that he was a friend of Wahab Jaffer and had also met the claimant Aziz Kurtha. The Defendant argued however that the time to file the case into Court, six years, had expired but the judge found that the alleged transaction before 1999 was difficult to believe and therefore the claim was within time. As the judge said, “I prefer the evidence of Dr. Kurtha to that of Mr. Demetriou, who sold the paintings to the Defendant Mr. Marks.”
Contrary to what occurs in the United States where both parties largely bear their own legal costs, irrespective of who wins, in the UK the losing party usually pays about 70% of the winner’s costs if the latter is awarded costs on a “standard basis” which is what occurred here. But getting an order for costs is one thing and the actual recovery is another, and can take up to a year.
At least in Europe and USA there is the Art Loss Register and one such institution is badly needed in India, Pakistan and Eastern countries like Indonesia and China where the art market is galloping ahead. The auction houses themselves can help detect theft and forgeries but at the end of the day it is private organisations like the Art Loss Register which is the most economical and efficient.
At the recent Dubai Art Fair and also at the Sotheby’s Institute of Art there is much talk about art theft and forgeries and this case in point has set a useful precedent. It is noteworthy that art collectors and buyers themselves should make inquiries about the provenance/background of any expensive piece they buy because as Justice Tungendhat pointedly warned: “A dealer in valuable works of art who pays in large amounts of cash, keeps no records, and asks no questions as to provenance of his supplier, exposes himself, and those who buy from him, to other very serious risks.”
He then went on to say succinctly, “It follows that Dr. Kurtha’s claim succeeds” and ordered the immediate return of the two paintings valued at approx. £300,000 to the Claimant.
Top: Head of a Portuguese navigator, 1961
Left: Chalice with host, 1953
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