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Bacon Estate v. Marlborough gallery to go to High Court in January

Litigation may reveal the operations of one of London’s leading galleries and its Liechtenstein subsidiary

The legal case being brought by the Francis Bacon Estate against the Marlborough gallery will now go to trial at the High Court in London. In a judgment handed down on 15 May, Mr Justice Patten dismissed Marlborough’s application to “strike out” the action, saying it should proceed. The case has already begun to reveal more about the finances and private life of Bacon, described by the judge as “one of the greatest artists of the 20th century”. The litigation is also providing an unusual insight into the operations of one of London’s leading galleries and its Liechtenstein subsidiary. Although the extent of the Estate’s claim has not yet been calculated, it could well amount to as much as £100 million.

When Bacon died in 1992, at the age of 82, he left his estate to John Edwards, a former East London barman who now lives in Thailand. The sole executor is now Professor Brian Clarke, who over the past three years has become increasingly concerned that the artist had not been properly paid by his gallery. The Estate eventually instigated legal action against Marlborough Fine Art (London) Ltd and Liechtenstein-registered Marlborough International Fine Art Establishment. Last month’s week-long hearing was over two procedural issues. The Estate sought to amend its Particulars of Claim, to remove the allegation that the relationship between Bacon and his gallery was governed by some underlying contract, and to describe it as “an arrangement of convenience”. At the same time Marlborough asked the judge to strike out the action, arguing the case was just a “try-on” by the Estate. Mr Justice Patten ruled to allow the Estate’s amendments (subject to certain changes) and dismissed Marlborough’s strike-out application, which means that the case will now proceed to trial. The case, which will probably take at least three months, is likely to begin in January.

Rags to riches

Although much of the last month’s hearing dealt with procedural issues, much more emerged about Bacon’s dealings with his gallery. As summarised by Mr Justice Patten, the artist was a “bohemian, lacking in business and financial experience and without the benefit of any independent advice”. Initially his earnings were modest, and from April 1956 to October 1958 he received £1,725 from Marlborough for his works, or about £100 a month. In 1958, at the age of 49, he entered into an agreement with the gallery, under which he was paid for paintings according to their size, ranging from £165 for a 24 x 20 inch canvas to £420 for one of 78 x 65 inches.

In 1963 Bacon tried to terminate the Marlborough deal and move to a Swiss gallery, but the arrangement was extended by mutual agreement until the following year, “purportedly to allow Bacon’s tax affairs and accounting problems to be resolved.” However, the deal with the Swiss gallery never went ahead and Bacon stayed with Marlborough. From 1964 until Bacon’s death Marlborough continued to sell his works on an exclusive basis and provided certain services. Among the issues in dispute is whether this relationship gave rise to fiduciary duties for Marlborough to act in the artist’s best interest.

Throughout this period, the day-to-day liaison with Bacon was handled by Miss Valerie Beeston, then a Marlborough employee and director. The judge explained that one of her principal tasks was to collect the paintings as soon as the paint was dry: “Bacon lived in a small flat and studio in South Kensington which had no real storage facilities. He could also be destructive. To preserve his pictures they were removed from him when complete, framed, photographed and then stored. Occasionally they were returned to him at his request for alteration or even destruction.” Money was paid in various ways. “Sometimes payment would be made to a Swiss bank account maintained for Bacon in the name of a Liechtenstein Stiftung. On other occasions the money would be remitted to Bacon’s account in England or even paid to him in cash.”

Missing works

The thrust of the Estate’s case is that Bacon was not paid properly for many of his pictures. Among the examples cited is “Self-portrait 1974”, for which Bacon received £6,000 from Marlborough Liechtenstein. Marlborough quickly sold the picture on for $45,000. However, the gallery argues that it did not sell Bacon’s works as his agent, but bought them as principal and was then free to sell them at whatever price it could obtain.

Another example which was given to the court was “Study of a man and woman walking 1988”, which was offered by Marlborough to Michael Leventis, a friend of Bacon. Leventis was told that the painting would normally retail for $1.7 million, but the gallery would give him a special deal and waive its commission, so he could have it for $1 million. The painting was then bought by Leventis, with Bacon receiving only $500,000. Leventis later sold the picture for a profit, and this angered Bacon, who changed his will in 1989 so that his former friend was no longer one of his executors. In altering his will, Bacon apparently complained that Leventis had sold a painting which he had acquired at a “reasonable price”. Marlborough now argues that this indicates Bacon was aware of the price paid by Leventis, and therefore of the profit made by the gallery.

The Estate also says that Bacon received only £6,000 for a series of lithographs which were subsequently sold for $40,000, and that Marlborough failed to account for a further 47 series of lithographs. In an even more serious claim, the Estate says it has identified over 30 paintings which it says do not feature in accounts supplied to them by Marlborough. Bearing in mind recent prices for his work, the Bacons not in the accounts could now be worth in the order of £100 million.

Reactions

Following last month’s judgment, Marlborough’s spokesman said that “we are pleased that many of the crucial facts relating to the case are starting to emerge”. He confirmed that the gallery will defend each and every allegation made in the claim. “We look forward to the opportunity at trial to address all of the issues in a comprehensive presentation and examination of the evidence: it clearly demonstrates that Bacon and Marlborough had a close, frank and mutually beneficial relationship. As a result of their association, Bacon came to be recognised as one of the most important and intelligent artists in the world as well as accumulating substantial personal wealth.” No comment was made about the judge’s refusal to strike out the case.

Lawyers for the Estate appeared equally pleased with last month’s judgment. “The Estate welcomes the ruling, which vindicates its decision to launch this litigation. It looks forward to the opportunity of putting its full case before the High Court in due course, when Marlborough will have to give a proper account of its handling of Francis Bacon’s affairs.”

In the very week that the High Court was considering the legal claim, a Bacon painting sold for a record sum in New York (see p.69).

Meanwhile Bacon has had the unusual honour of having his entire studio moved to another country, as a museum exhibit. The Estate donated the contents of his chaotic South Kensington studio to the Hugh Lane Gallery in Dublin, which meticulously recorded 7,500 items uncovered in what was virtually an archaeological dig. The finds included 98 slashed canvases, 70 drawings, photographs, books, magazines, paint tubes, as well as the cut-off ends of several pairs of Marks and Spencer corduroy trousers which had been used by the artist in order to pattern his paint. Also found, drawn directly on the studio wall, was a tiny sketch of a male figure on a chair, which appears to be further evidence that Bacon was not telling the truth when he said that he never made preliminary sketches for paintings. Noticeably absent from the studio was a palette, since Bacon preferred to use the walls, door and small canvases. The reconstructed studio was opened at the Hugh Lane last month. Coming soon is yet another Bacon exhibition, this time at Sheffield’s new Millennium Galleries (21 July-23 September), centred around works from the Tate’s collection with other loans.