English Court of Queen's Bench denies summary judgment to Sotheby's of London in suit brought by descendants of composer Sergei Rachmaninoff to prevent auction of long-lost handwritten manuscript of his Second Symphony
In December 2004, Sotheby's of London, the first defendant auctioneers, planned to hold a sale they describe as including the long-lost manuscript of Sergei Rachmaninoff's Second Symphony in E minor, Op. 27 done in the composer's own hand.
After the premiere, the Moscow publisher had used this autograph manuscript to prepare the first 1908 edition. It then sent the manuscript to Leipzig, where the Roder firm had engraved it. The engraver probably sent the score back to Rachmaninoff, who was still living in Dresden. According to musicologists, the appearance of this manuscript is one of the most remarkable discoveries in modern times and is of huge importance for Rachmaninoff research.
The auction house set a figure ranging from L 300,000 to L 500,000. A British newspaper had published a story about the manuscript's discovery in late 2004. The plaintiffs here are the composer's grandson and three of his great grandchildren. They filed a suit seeking a declaration that, being heirs to the composer's estate, they qualified as the rightful owners of the manuscript.
The basic theory of Davenport Lyons (DL), plaintiff's law firm, was: (1) that the composer had become the owner of the manuscript when he created it; (2) that there was no record (a) of the composer having given it away or (b) of his having sold it during his lifetime, nor (c) of anyone else having acquired lawful title to it; and (3) that it formed part of his estate on his death. The court preliminarily enjoined Sotheby's from surrendering possession of the manuscript and from putting it up for sale.
Sotheby's alleged that someone had found the manuscript in a trunk in the basement of a Mr. Laszlo Molnar in Switzerland after Molnar's death in 2003. So far no one has turned up who knows how Molnar had gotten hold of the manuscript. Sotheby's refers to source material from which they infer that "it would appear to have left the composer's possession between 1908 and 1917."
According to a biography of the composer, he left Russia on December 23, 1917, through the sound of gunfire in a grim escape from what became Petrograd and traveled west through Finland, carrying one small suitcase. The case contained a few items of music, but not, so far as is known, the manuscript in question.
Sotheby's applied for summary judgment. Molnar's heir joined the proceedings as a second defendant after a Judge gave judgment. The Court of Queen's Bench, however, set aside this ruling and set the case down for a trial on the merits.
The applicable English procedural law on summary dispositions is Civil Procedure Rule 24.2. It provides that: "The court may give summary judgment against a claimant ... on the whole of a claim ... if (a) it considers that (1) that claimant has no real prospect of succeeding on the claim ...; or (ii) ....; and (b) there is no other reason why the case or issue should be disposed of at a trial."
The Court stresses at the outset how important it is that a judge in proper cases should make use of the powers contained in Part 24. "In doing so, he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and, I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know this as soon as possible ..."
"Useful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial. ..., the proper disposal of an issue under Part 24 does not involve the judge conducting a mini trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily." [¶ 22].
"Theft of the manuscript is one possible explanation which is consistent with the Claimants still retaining title to it. But, as appears from the way they have framed their claim, that is not the only, or even the primary, basis for it. It is possible that the manuscript was left in Russia or Germany and came into the possession of Sotheby's principal through a person who had originally received it for safekeeping and who intended that it should be returned to the composer one day. There is evidence from the composer's sister in law, in the form of a letter, that the manuscript of the First Symphony was left in his desk in Russia and entrusted to a housekeeper." [¶ 25]
Some of Sotheby's showing stems from interviews that Dr. Roe, the Head of their Printed Book and Manuscript Division, had conducted. "However, Dr. Roe is not qualified as a lawyer. Nor is it clear at this stage what sort of legal advice would be needed before a view could be formed as to who owns the manuscript."
"The states already mentioned, where the document has been seen, include Germany and Switzerland, and there is speculation that it might have gone to Russia. Mr. Molnar came from Budapest, which is no further from Dresden than Dresden is from Switzerland."
"The laws of Germany and Switzerland, together with English law, and perhaps that of some other states, might possibly be relevant to the question of who now owns the manuscript. And there is little information given by Dr. Roe as to the questions he asked, and the terms of the answers given. In any event, Dr. Roe had little means of challenging any answers he may have been given, and no means of requiring production of documents to support any claims made. A court does have such powers." [¶ 28]
"... I do not need to address the arguments put before me on time bar points under English and Swiss law. Time bar points can only be sensibly considered by a court that is confident that it has to hand all the relevant factual information as to where and when this manuscript might have been. The complexity of such points in cases of works of art that have gone missing in Central Europe during the twentieth century can be seen from ... what happened in the troubled period 1914 to 1989."
"Accordingly, ... justice in my judgment requires that the Claimants be allowed to pursue their claim. The justice of the case also requires me to have regard to wider considerations. These include the fact that information as to the identity of an auctioneer's principal may enable prospective bidders or purchasers to deal directly with the principal before the auction, or, by a lawsuit, to frighten the principals off altogether." [¶¶ 31-33]
"Another consideration goes the other way. There is a dark side to the confidentiality surrounding the identity of an auctioneer's principal. The public and the law have increasingly come to recognise the potential for abuse by criminals of works of art, and of those who deal in them (consciously or unconsciously), for money laundering, and for disposing of the proceeds of crime."
"The less the legal risks involved in committing a work for auction, the more attractive the market in works of art and manuscripts becomes for criminals. The policy of the law, both in this jurisdiction and elsewhere, is to look more sceptically than would have been thought proper in the past upon those who have very valuable property for which they give no provenance." [¶ 35]
Citation: Rachmaninoff v. Sotheby’s, [2005] E.W.H.C. 258 (QB), [2005] All E.R. (D) 01 (March 10) (Approved judgment).
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