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Legal Analysis: Browne and Partners' Claims Against Art Restorations

PART 1

Q1: C The PN-PAP states that the preliminary notice should be acknowledged by Meers in writing within 21 days of receipt.

Q2: A The statutory limitation period for the claim is 6 years from 9 January 2020.

Q3: D When the Claim Form is served on Aircool it must acknowledge service irrespective of whether it later receives Particulars of Claim from Regency

Q4: D If you leave the Particulars of Claim at a permitted address at 18:00 (6pm) on 4 April, they will be deemed served on the Defendant on 6 April.

Q9: B As the claim by PP against HC is a commercial case, interest can only be claimed in the Particulars of Claim at 1% per annum over the Bank of Englandbase rate.

PART 2

What needs to be proved in order for its claim to succeed?

Browne & Partners must prove two points for the claim to succeed:

1. Firstly, they need to prove that the amount of cracking and flaking is caused by faulty packing undertaken by Art Restorations (Manchester) Limited at the time of collecting and delivering the painting when the painting was packed and was carelessly handled during transport. Mr. Nicholas raised his concern to Mr. East about the manner he was packing the painting. Since Mr East claimed that the packing was in accordance with Art Restorations’ instructions, this needs to be examined in order to proof that the packing was inadequately done.

2. Secondly, they need to prove that the dullness and fading of the painting was caused by Art Restorations (Manchester) Limited during their cleaning and restoration process. It, therefore, needs an examination of the cleaning agents and the process used in restoring the painting. This will establish whether the right cleaning agents or the process was used or not.

What are the supporting evidences for each point?

Browne & Partners has five supporting evidences:

1. The detailed report from Mr Ciaran Kelly to show that a faulty packing caused the cracking and flaking.

2. The detailed report and the Quotation, dated 11 May 2xx8 that provides that gloss would be used to treat the canvas. It will proof that the cleaning agent or the process used was not appropriate. It will show that glossing was not done appropriately or not at all proven by the fact that the painting looked dull and faded.

3. Mr. Nicholas’s conversation with Mr. East when Mr. Nicholas raised the concerns regarding inadequate packing would support point 1.

4. Mr. Nicholas observation about the inadequate packing at the time the painting was collected and was delivered. His observation that the painting was packed in exactly the same way it had been when it was collected would support point 1.

5. Statement of the secretary of Mr. Finch, who had a preliminary look at the painting on Thursday 11 May 2xx8

What are the further supporting evidence to see from the client or its employees?

Further evidences required from the client are:

1. The detailed report from Mr Ciaran Kelly.

2. Revised quotation of £15,275, if any.

3. Art Restorations’ packing instructions.

4. Art Restorations’ cleaning process, including cleaning agents used.

Question 2(a)

SRA Code of Conduct for Solicitors, 6.2 prohibits a solicitor from acting in a matter if they have conflict of interest or a significant risk of such conflict in that matter. Where the solicitor is able to foresee a need for substantive negotiations between all of the clients, they must not act in that matter. However, such prohibition does not bind the solicitor under certain exceptions where the solicitor must act in all of the clients' best interests. Code 6(a) provides that the solicitor can act in the matter if the clients have a substantially common interest in that matter, as appropriate. All of the clients must have a clear common purpose between them and also a strong consensus on how the common purpose must be achieved. The clients must give informed written consent to the solicitor to act on their behalf. The solicitor must provide for effective safeguards in order to protect all of the clients' confidential information Thus, they must consider any case of disclosure concerns in case all the confidential information material to the matter in hand .The solicitor must be satisfied that it is reasonable for them to act for all of the clients.

In the current case, Mary Jones cannot act in the negotiations unless the exceptions could be applied. Her involvement must be for the best interests of all the partners and the firm. In this case, the firm and the partners desire to negotiate. Mary Jones can act on behalf of all the clients only when they give her a written consent, and a consensus on the purpose and the way to achieve the purpose are in order. In this case, there is a substantially common interest between the parties as the fact that the issues regarding personal contractual arrangements between Ms. Browne and the firm and other partners and the firm will involve substantive negotiations. On the part of Mary Jones, she would need to ensure effective safeguards to ensure confidentiality of information shared between the clients. Only when she is satisfied all necessary elements are in order, she can act on the best interests of all the clients.

Question 2(b) – Particulars of Claim
3. BACKGROUND TO THE CAUSES OF ACTION

3.1. Scarlett Browne, the senior partner of the Claimant, spoke to the secretary of Stanley Finch, a director of the Defendant about the need of the Claimant to have restoration work done on a canvas entitled “Buoy in Space #12”. The canvas is owned by the Claimant. It is by the 20th century artist Tiler Maximilian and is currently insured for £2,250,000.

3.2. The secretary of Mr. Finch came to have a preliminary look at the painting on Thursday 11 May 2xx8.

3.3. The Claimant received a quotation on 11 May 2xx8 for cleaning works required for the canvas. The quotation is attached with this Particulars of Claim.

3.4. On Thursday 25 May 2xx8, the Claimant and the Defendant entered into a deal at a cost of £15,275 inclusive of VAT for cleaning, packing and transporting of the canvas.

3.5 On Friday 26 May 2xx8, Mr Alan East, an employee of Art Restorations, came to pick up the painting.

3.6. The auction room manager, Mr Nicholas Jones of the Complainant raised concerns to Mr. East about the inadequate packing being undertaken by Mr. East. Mr East reassured Mr. Nicholas that it was in accordance with the Defendant’s instructions.

3.7. On Wednesday, 23 August 2xx8, Mr. East returned the painting. Mr. Nicholas Nicholas handed Mr. East the cheque for £15,275, he cost of restoring the canvas according to the deal agreed.

3.8. When Mr. Nicholas saw the painting, it was packed the exact same way as it was at the time Mr. East collected it.

3.9. The Claimant found the painting was cracked and in some places the painting were flaking off.

4. Particulars of breach

According to the report, dated 31 August 2xx8, by the Complainant’s in-house expert, Mr Ciaran Kelly, which is attached herewith, the probable causes are due to inappropriate packing and use of inappropriate cleaning and glossing agents:

4.1 The Defendant used a cleaning fluid, ammonium hydroxide. This is not inappropriate for paintings. This has caused the dullness and fading of the colours of the painting.

4.2 The Defendant has caused the cracking and flakeing of the painting due to their inappropriate gloss paints and packing methods.

The gloss paints used by the Defendant might have solvents normally used in cleaning paintings. Such solvents can disrupt the painting. Also, in such case, if the painting was handled roughly, the painting can easily crack and start to flake.

The official instructions of the Defedant that were followed by Mr. East requireed 5cm-thick bubble to be wrapped on just the 4 corners of the painting for all transportation. This thickness and dsitribution of bubble wrap was wholly inadequate. The minimum standard required for wrapping such painting is a 10cm-thick bubble wrap, which should have been used over the entire painting.

5. Consequences of the breach

5.1. The painting cannot be now displayed at the Claimant’s main auction room.

5.2. If the painting is not fully repaired and restored, it would eventually disintegrate.

5.3. The Claimant, therefore, must fully repair and restore the painting.

5.4. For such repair and restoration, the Claimant may incur £106,500 (inclusive of VAT).

6. Particulars of damages and loss

6.1. The Claimant suffered damages in the amount of:

The cost of the agreed deal for cleaning, packing and transporting: £15,275

6.2. The Claimant will incur cost full repair and restoration of the painting: £106,500

Total amount damages: £121,775

6.2. THE CLAIMANT, THEREFORE, CLAIMS

Damages under paragraph 6.1 and 6.2.

Costs of suit.

Further or alternative relief.

Dated: Cornish Llewelyn LLP

7. STATEMENT OF TRUTH

We believe that the facts stated in this Particulars of Claim are true. We understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

STATEMENT OF TRUTH

The Claimant’s solicitors are Cornish Llewelyn LLP of 36 Hilly Road, Manchester, MN1 5RT.

To the Court and to the Defendant.


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