PROVING THINGS 231: ASSESSING LOSS OF EARNINGS OF AN ARTIST: THE WIDE PALETTE OF APPROACHES THE COURT CAN TAKE

There are many cases where the courts have had to consider the loss of earnings of a claimant whose career pattern, and thus earnings, are not wholly certain. Often these relate to those working in sports or entertainment. In Mathieu v Hinds & Anor [2022] EWHC 924 (QB) Mrs Justice Hill considered the likely career pattern of an artist. What is interesting here is that the judge adopted a (highly modified) multiplier/multiplicand approach. She did not use a more general “Blamire” approach, and carefully appraised the claimant’s likely career prospects and earning potential.

“Predicting the future loss of income for any artist will be difficult.”

THE CASE

The claimant, a talented artist, was serious injured in an accident.  One of the items the court had to assess was his past and future loss of earnings.  The claimant advocated for a “multiplier-multiplicand” approach the defendant argued that no award should be made, alternatively an award on a very general “Blamires” basis.

WEBINAR

There is a webinar available online on “Claims for loss of earnings of the self-employed and those involved in entertainment and sport” which covers many of the issues relating to claimants with uncertain career and earnings prospects.  It is available on demand until the 14th September 2022. Booking details are available here. 

THE JUDGMENT ON LOSS OF EARNINGS

PAST LOSSES

6: Past losses
6.1: Past lost income
(a): The legal principles relating to the lost income claims
    1. The Claimant contended for a conventional, mathematical approach to calculating his past and future loss, using multiplicands and multipliers as appropriate. Mr Huckle argued that if I was not satisfied with any of the underlying assumptions used in Mr Stanbury’s calculations, the methodology could be modified, but that it was appropriate to continue to use the conventional approach.
    1. The Second Defendant’s primary case was that the Claimant could prove no ongoing loss beyond the end of 2018. Alternatively, Mr Dignum submitted that if any loss was found, there were simply far too many uncertainties to use the conventional method, so that the approach taken in Blamire v South Cumbria Health Authority [1993] PIQR Q1 was appropriate.
    1. In Blamire there were multiple uncertainties over what the plaintiff would have earned over the course of her working life had she not been injured and as to the likely future pattern of her earnings. The trial judge made a global award to reflect the risk of loss of future earnings and pension benefits and the plaintiff’s future vulnerability in the market. The Court of Appeal upheld his approach on the basis that there had been “far too many imponderables” for him to have been bound to adopt the conventional multiplier/multiplicand approach; further he “had well in mind that it was his duty to look at the matter globally and to ask himself what was the present value of risk of future financial loss. He had in mind that there was no perfect arithmetical way of calculating compensation in such a case. Inevitably one is driven to the broad-brush approach. The law is concerned with practical matters…and very often one is driven to making a very rough estimate of the damages” (per Balcombe LJ at Q5-6, in part quoting Lord Reid in Gourley).
    1. In Bullock v Atlas Ward [2008] EWCA Civ 194, the Court of Appeal made it clear that judges should not adopt the Blamire approach too easily. At [19]-[21] Keene LJ held that “[a]ll assessments of future loss of earnings…necessarily involve some degree of uncertainty…Merely because there are uncertainties about the future does not of itself justify a departure from [the conventional] method. Judges should therefore be slow to resort to the broad-brush Blamire approach, unless they really have no alternative”. At [16]-[17] Ward LJ observed that the only uncertainty in Bullock related to whether the claimant would achieve a certain level of earnings. In those circumstances the court was “not only able…but bound” to use a conventional approach as “a much more appropriate method for fairly assessing damages”.
    1. In Van Wees v Karkour [2007] EWHC 165 at [134] Langstaff J adopted the global sum approach to assessing the Claimant’s employment prospects, because he considered that there were “too many possibilities and too many uncertainties” about her likely career path. These related to multiple chances of her having reached various positions and uncertainties over accurate salary rates, rates of pay progression, dates of promotion and the likely influence of other possible factors such as working abroad, being paid in different currencies and being subject to different tax regimes. That said, the data available to the judge enabled him to perform a “more calculated” assessment than had been used in Blamire.
    1. In Irani v Duchon [2020] PIQR P4, the Court of Appeal upheld a trial judge’s use of the Blamire approach where that had been a “wholesale insufficiency” of evidence: the only evidence before the trial judge was “a letter from a friend, a snapshot of unsuitable jobs…from one…website, and various assertions from the Claimant, a number of which were specifically rejected”. The Court noted that “if the only issue had been one of uncertainty” the conventional approach could have been used: [34] and [38].
    1. The Claimant advanced his claim for past loss relating to early 2022 and his claim for future loss on the basis that he had a 70% prospect of achieving certain levels of sales. In “loss of a chance” cases involving the loss of earnings, the court has to assess the extent of the lost chance and reduce the damages accordingly: see, for example, Anderson v Davis [1993] PIQR Q87 (loss of a two-thirds chance of becoming a principal lecturer), Doyle v Wallace [1998] PIQR Q146 Q87 (loss of a 50% chance of becoming a teacher), Langford v Hebran [2001] PIQR Q13 (loss of various chances of escalating success as a kickboxer) and Collett v Smith [2008] EWHC 1962 (QB) (loss of a 60% chance of playing in the Premiership for a third of a footballer’s career).
(b): General observations regarding the claim for past lost income
(i): The ‘baseline’
    1. This was not a case where there was an immediately discernible pre-accident income baseline from which to calculate the Claimant’s lost income due to the accident. At the time of the accident, he was part-way through his studies for his Masters’ degree and it was only after completion of that course that he returned to full-time work as an artist, subject to the limitation of his symptoms.
    1. However, there was evidence of how the Claimant had worked before starting his Masters in 2013. He had produced paintings and begun to sell them in galleries in Haiti while studying for his undergraduate art degree, often travelling back to Haiti. On graduating in 2010, he continued to sell his art but took a job as a Hewlett Packard representative to support himself financially. He had a studio but had to give it up in mid-2013 to save money for the Goldsmiths course. When he had the studio, he estimated that he produced 40-50 pieces of art a year.
    1. The Claimant had also continued to take part in group exhibitions while studying for his Masters. In 2014 he took a break from the course to return to work as an artist and produced 21 paintings and seven drawings. He returned to Goldsmiths in January 2015. Although he was focussed on his studies that year rather than producing work for commercial sale, he nevertheless produced 23 new pieces of art before his accident on 28 November 2015.
    1. The Claimant explained he led a “busy and demanding life” before his accident, especially as he had no support from gallerists or agents. This meant that he had to do everything himself, including personally packing and shipping the art he produced, making contact with gallerists and buyers and setting up exhibitions. He now has “the best facilities and support”. He did not agree that his life before the accident was less stressful or hectic than his life after it and I accept that evidence.
    1. This evidence illustrates that prior to the accident the Claimant was a hard-working and committed artist, with a close eye on his business as well his art. Mr Huckle described him as a “hungry fighter” as he has come from a modest background, and at various points had to support himself with part-time work, which I consider fair. It is clear to me that he worked very hard and was willing to do so in pursuit of his art.
(ii): The shortfall
    1. The Claimant graduated from Goldsmiths after his accident and gradually returned to full-time work, enjoying a much higher level of success than before. It is for this reason that his productivity and income have increased since the accident. However, this does not mean that he has not sustained losses. I accept the Claimant’s overall contention that his productivity and income have increased since the accident, but that he would have produced more art, and thus earned more, but for the accident. This is because I accept the Claimant’s evidence that while the impact of his symptoms has reduced over time, they have meant and continue to mean that he needs to take more regular breaks in the day than he would otherwise do, cannot work as late in the studio as he would like and needs to take regular rest days. This means he produces less art. I therefore do not accept the Second Defendant’s submission that because of his increase in productivity since the accident the Claimant cannot show any losses: the two are not mutually inconsistent.
    1. In my view, the Claimant has done his best to estimate what art he would have produced had the symptoms not inhibited him in the way they have done. The nature of his deficits is that they are largely hidden. Although the experts can provide scientific data about the Claimant’s injuries, this does not extend to being able to provide an incontrovertible assessment of the lost productivity that they cause. In those circumstances, I accept Mr Huckle’s submission that the Claimant is best placed to assess how much productivity he has lost. I did not understand any of the experts to be saying that his assessment was wholly unreasonable given his symptoms (subject to the evidence about mitigation of loss set out above).
    1. The Second Defendant relied on the fact that in 2017 the Claimant completed a form for the Canadian compensation scheme indicating that he was working a 60-hour week. In evidence the Claimant said that this was “aspirational” and included all the time he was in the studio even if he was not actually working. Given that he would work seven days a week if his health permits it, 60 hours a week is not necessarily inconsistent with a shortfall in any event. It could be said, for example, that 60 hours was equivalent to five long (12 hour) days in the studio and two rest days. Mr Kiernander’s evidence was that he himself worked 60 hours in the studio while also doing a teaching job. I do not therefore regard the evidence the Claimant provided to the Canadian compensation authorities as inconsistent with his evidence as to his ongoing symptoms and the shortfall at this time.
    1. There was evidence that the Claimant always meets the specific demands of his gallerists for work, even if it is at the last minute according to Mr Gupta. The Second Defendant argued that this means that he cannot show evidence of a shortfall. Again, I disagree: the Claimant’s evidence was clear that he always meets the demands of a particular engagement (such as a show or pre-ordered piece of art) but not the general demands of the market for his work.
(iii): Selling the shortfall and unsold or held back work
    1. Once the shortfall is established for a particular year, it is then necessary to establish whether that shortfall leads to any financial loss to the Claimant. That requires an assessment of whether the “lost” art (i.e., the art the Claimant has not been able to produce) would be sold.
    1. Mr Stanbury applied an assumption that all the works which the Claimant would have produced in a particular year would have been sold. This was based on the fact that the gallerists gave broadly consistent evidence to the effect that they cannot currently meet the demand for the Claimant’s work from potential buyers. However, it is necessary to look at what was happening with the Claimant’s sales in each of the years for which a shortfall is claimed to identify whether he would, in fact, have made more sales had he produced more work.
    1. The Second Defendant relied on the fact that a certain percentage of the Claimant’s work to date has not, in fact, sold. For example, a recent exhibition at the Matthew Brown Gallery in Los Angeles had not led to the sales hoped for. The Second Defendant therefore understandably argued that any unmet demand could be met from the Claimant’s current stock of art, and that there was no ongoing shortfall.
    1. However, when Mr Stanbury completed his final analysis of the unsold art in the Claimant’s archive, he concluded that of the 287 pieces he has produced since 2016, only 27 are unsold. This is just under 10%. There was evidence to the effect that artists are advised to routinely hold back from sale around 25% of their art. Mr Gupta advises all his artists to this effect. The Claimant had also been given advised by the accountant for Robert Rauschenberg (a famous artist) to hold back four pieces from each series he produces. This is for several reasons. It is sensible for artists to retain some art for their own future financial benefit or that of their estates. Artists use paintings as gifts, often a little strategically. The Claimant had done this, by, for example, giving Ms Joyner a painting for her birthday in 2020. They may also keep paintings for their own personal use, including for future research.
    1. I do not therefore consider that the Claimant should have been expected to use this unsold or held back work to service the unmet demand, not least as he is already retaining a lower percentage than is considered sensible. Further, it is clear that holding back work in this way benefits the artist financially, albeit in a less direct or immediate way than an immediate sale. It is therefore reasonable that the Claimant should have the benefit of any nominal held back work for the purposes of calculating his loss. I therefore do not consider it necessary to modify the assumption Mr Stanbury has applied to the calculation of loss that the Claimant would have sold all works represented by the lost production figures to reflect the fact that some would not, in fact, have been sold. The Claimant is nevertheless entitled to the value of them. References below to paintings being “sold” should therefore be interpreted as referring to both sold, and held back, paintings.
(iv): Calculating the value to the Claimant of the shortfall
    1. The Claimant generally receives 50% of the sale price for each painting that is sold.
    1. Mr Stanbury’s calculation of the Claimant’s losses was commendably thorough. I found his 40-page initial report and 10 supporting evidentiary schedules, together with his supplementary report, further revised schedules and oral evidence very helpful. He had reviewed a large amount of material, including the Claimant’s archive of work, his annual accounts, price lists, sales records and gallery artist reports as well as the key witness evidence. He described the case as “replete” with data for the purposes of calculating the Claimant’s losses, compared to the 900 or so similar cases in which he has advised. Based on his analysis of the data, he was satisfied that the Claimant’s documentation provided a “reliable record” of the work sold and that the invoices reconciled to the accounts satisfactorily: typically, there were only negligible discrepancies, which were often likely due to exchange rate differences.
    1. Mr Stanbury reconciled the fact that the Claimant invoices in four different currencies (US dollars, Canadian dollars, British pounds and Euros) by using appropriate exchange rates to give consistent figures in CAD $ (either the actual exchange rate for the date in question or the average exchange rate for the relevant accounting period). He calculated average selling prices per year for large, medium and small paintings and a “blended” average selling price across all sizes. Having calculated the average number of years between production and sale (as 2.1 years in 2016, declining to 1.1 years in 2021, consistent with there being increased demand for the Claimant’s work), he applied an assumption that work produced in one year would be sold the following year.
    1. Mr Stanbury used the actual sales figures so as to incorporate the element of discounting which often occurs in the art market and which the Claimant’s gallerists had actually applied to his sales. I do not therefore accept that any further reduction to reflect heavy discounting from the Claimant’s sales prices is appropriate as the Second Defendant suggested (and in any event the evidence did not show that the discounting was consistently heavy or outside industry norms).
    1. The Defendant’s expert Mr Rabinowitz agreed the sales reconciliation by painting and the average actual sales prices from 2016-2021 with Mr Stanbury. He did not provide an alternative calculation for past loss, but I have taken his observations into account where appropriate. The same applies to the arguments advanced in the Second Defendant’s Counter-Schedule of Loss and closing submissions.
(c): Past lost income per year, 2016-2022
(i): 2016
    1. The Claimant’s evidence was that he was only able to return to painting very slowly after his return to Goldsmiths in January 2016. He said that “[w]ith huge difficulty” he produced the “bare minimum” he needed for the Goldsmiths end of year show in July 2016, namely a “tryptic” (a large work, broadly equivalent to three separate paintings) and five further paintings. He then took the rest of the year off to recover from his injuries. It was no part of the Second Defendant’s case that he had failed to mitigate his loss in doing so.
    1. The Claimant estimated that he would have produced at least another 15 paintings of various sizes before the July 2016 show. I consider this credible. This was the period when the Claimant’s symptoms were at their worst and it is thus reasonable to infer that but for the symptoms, he would have been significantly more productive (around three times more so) than he actually was. Further, I accept the Claimant’s evidence that it was clear to the students that their focus at this point in the course was to produce work for the show rather than engage in further study. I therefore do not accept the Second Defendant’s suggestion that absent the accident the Claimant would have been studying in 2016 and so would not have been working at full capacity in any event.
    1. The Claimant estimated that if he had not taken the latter part of 2016 off to recover, he would have produced at least 30 paintings. Again, I consider that this is credible. This figure is broadly consistent with the pattern he has estimated for the first part of the year, which was based partly on pieces he had actually produced. I also accept the Claimant’s evidence that but for his accident he would have thrown himself into his work and “tried to ride the wave” of success after the Goldsmiths show. This is entirely consistent with his clear dedication to his art and good business sense.
    1. I therefore accept the Claimant’s case that but for his injuries he would have produced a total of 45 more pictures in 2016. I do not consider that the Second Defendant’s suggestion that the proper shortfall figure for this year would be 5 lost paintings, or 10% lost productivity, fully reflects the continued impact of the Claimant’s injuries on him at this time.
    1. The Claimant’s case was that he would have sold all 45 of these paintings. The Goldsmiths’ show was noted by many of the witnesses as having been a huge success. The pieces he put in the show all sold and he was approached by various gallerists wanting to work with him. An article entitled “Why London artist Manuel Mathieu is on the way up” generated a lot of interest in him. The demand for his work continued into 2017 (see section 6.1(b)(ii) below).
    1. However, he only sold four pieces from the Goldsmiths show, and a total of 11 pieces that year. He had not, by this point, been taken on by any gallerists who could assist in promoting his work. Unlike later periods, there is no evidence of unmet demand for his work for this period. I therefore consider that he would have been able to sell some, but not all, of the 45 lost paintings. Bearing in mind the other sales figures for the year and doing the best I can to make a broad-brush assessment on the evidence, I estimate that he would have sold 20 of these paintings in 2016. Given my findings in the following sections to the effect that the Claimant began to have unmet demand for his paintings in 2017, and given Mr Stanbury’s evidence that the average number of years between production and sale was 2.1 years in 2016, I find that the Claimant would have sold the remaining 25 paintings produced in 2016 in 2018.
    1. The Claimant did not specify what size the additional paintings for 2016 would have been. Accordingly, and applying the working assumption that work produced one year would be sold the next, Mr Stanbury used the blended figure for average sales in 2017 to generate an average figure of CAD $5,216 per painting. This was based on the Claimant’s sales invoices and Canadian accounts for 2017, in which there were negligible discrepancies. I accept this as a sound figure per lost painting. I consider this methodology more rigorous than the one advanced in the Second Defendant’s closing submissions which applied a broad 10% reduction to the Claimant’s gross profit for the year.
    1. Throughout Mr Stanbury’s calculations he applied an assumed deduction of 6.7% to reflect the Claimant’s costs in producing his paintings. However, it became clear during the trial that some of the Claimant’s costs, such as studio costs, would be incurred in any event. I accept his evidence that a large painting costs around CAD $2,000 in additional costs (for canvas, stretcher and paints). Given the absence of evidence about small painting costs Mr Huckle fairly invited me to apply the CAD $2,000 deduction to the sales figures for all lost paintings, of whatever size. I accept this. This gives a lost profit figure of CAD $3,216 per painting in 2016 for each of the 20 paintings that the Claimant would have produced and sold in 2016. The parties have agreed a lost profit figure of CAD $10,731.71 per painting for each of the 25 paintings the Claimant would have produced in 2016 but not sold until 2018.
    1. I therefore calculate the Claimant’s lost income for 2016 on the basis of (i) 20 lost paintings that would have been produced and sold in 2016 at CAD $3,216 profit per painting = CAD $64,320; plus (ii) 25 lost paintings that would have been produced in 2016 but sold in 2018, at CAD $10,731.71 per painting = CAD $268,292.86.
    1. As the Second Defendant pointed out, Mr Stanbury’s calculations resulted in a higher lost income figure for 2016 than the Claimant’s total gross profit for the year (CAD $47,392). Even my more limited calculations also do so. However, this is the inevitable consequence of the very significant impact the accident had on the Claimant’s productivity during 2016, the rising value of his art and the sensible assumptions and methodology used by Mr Stanbury. I do not accept, as the Second Defendant submitted, that such a large disparity between actual income and calculated lost income means that an award for the entirety of the latter is “wholly unreal”.
(ii): 2017
    1. The Claimant’s recovery continued during 2017, albeit that he was still very hampered by his symptoms. His archive shows that he produced 39 paintings and 21 drawings that year. However, he was set back by the second road traffic accident which occurred on 27 March 2017. His evidence was that he lost four weeks’ productivity as a result. Even allowing for that, his claim was that he could have produced a further 30 pieces of work in 2017 but for his symptoms from the 2015 accident. I accept the Claimant’s case in this regard. It is a reasonable figure bearing in mind the ongoing impact of his symptoms, relative to what he was still able to produce. It is a lower shortfall figure than that adopted for 2016, recognising that the impact of his symptoms was reducing, and his productivity was increasing. Again, the Second Defendant’s suggestion of a shortfall figure of five lost paintings / 10% lost productivity does not fully reflect the ongoing impact on the Claimant.
    1. The Second Defendant seeks to attribute six months’ lost productivity to the second accident in 2017. This is understandable as this appears to be the period of time for which the Claimant was paid statutory Canadian compensation for lost earnings, but his evidence, which I have accepted, is that he in fact only lost four weeks’ productivity due to the second accident.
    1. The Claimant’s case is that if he had produced these 30 paintings in 2017, he would have sold them all. On balance, I accept this, because the Claimant’s ability to sell his works had markedly improved from 2016, he had broad gallerist support and there is evidence of unmet demand for his work.
    1. In 2017, the Claimant had been taken on by the Tiwani Gallery in London and had a critically acclaimed solo show there towards the end of the year. Celeste Ricci who had worked at Tiwani was clear in her evidence that there had been interest in the Claimant’s work even before the show, largely due to his ICA and Goldsmiths successes, and she had arranged one sale before the show took place. Ms Ricci had “no difficulty” in selling all 14 works displayed in the show; “did not have enough work from Manuel to meet demand from collectors”; and had “no doubt at all that I would have been able to sell any additional work Manuel was able to provide…he was very much seen by the collectors as a talented artist whose career was rapidly ascending”. By the time of the Tiwani show the Claimant had also started working with the Kavi Gupta Gallery in Chicago and the Maruani Mercier Gallery in Brussels and Ms Ricci explained that when enquiries were made of these two galleries, they also had no “spare” works by the Claimant which could be used to meet customer demand. Ms Ricci gave an account at trial that differed from her written evidence as to whether she, or others, had asked the Claimant to produce more work, but her inconsistency on this point of detail from events over four years ago did not in my assessment undermine the broad thrust of her evidence. Finally, the demand for the Claimant’s work continued into 2018 (see section 6.1(b)(iii) below).
    1. Mr Stanbury used the sales invoices and accounts for 2018 to generate a blended figure of CAD $6,220 per lost painting for 2017. Again, a costs deduction of CAD $2,000 per painting needs to be made, giving a lost profit figure of CAD $4,220 per painting for 2017.
    1. I therefore calculate the Claimant’s lost income for 2017 on the basis of 30 lost paintings at CAD $4,220 profit per painting, giving a total of CAD $126,600.
(iii): 2018
    1. The Claimant’s evidence was that his recovery continued month on month, but broadly stabilised at the end of 2017. In 2018 he produced around 71 paintings and 40 drawings. His final assessment was that but for the accident he would have been able to produce 10 more large paintings and the equivalent of 4 medium ones in 2018. I consider the Claimant is best placed to make this assessment and that it is reasonable. It is a further reduction in the shortfall claimed from the previous year, to mark his increased productivity generally. The Claimant provided a clear rationale for the estimate of 10 lost large paintings: this equates to one for each month of the year, save for two months when he would be on holiday or engaged in other activities. The evidence shows that even with his symptoms he can typically produce 25 large paintings a year, so it is reasonable to conclude that without the symptoms he could have produced a further 10. The overall shortfall estimate fits with the impact of his symptoms as set out in his later diaries.
    1. I also consider that the Claimant is entitled, and best placed, to say how he would have used the productive time he has lost due to his injuries. He is clear that he would have used this time primarily to produce large artworks. They are what he is best known for and what sell the best. His allowance for the equivalent of 4 medium paintings is, in my view, a sensible recognition of the fact that some of his lost productivity would have been directed to other, less lucrative, art forms. I do not therefore accept the Second Defendant’s submission that the lost productivity must be equally allocated across all the art forms in which the Claimant works.
    1. As his symptoms have stabilised, and as he has now reached what is likely to be the best accommodation of them that he can, it is logical that the shortfall will remain broadly consistent for the future, even if his actual productivity varies each year.
    1. I am satisfied that if the Claimant had produced these 14 paintings in 2018, he would have sold them. Ms Ricci and the Claimant confirmed that all 14 of the pieces the Claimant put in Armory show in New York in March 2018 sold. Mr Gupta explained that the show at his gallery in Chicago in March 2018 was a “complete sell out”. Mr de Montferrand started working with the Claimant in early 2018 and was able to sell the three paintings the Claimant gave him “rapidly”. The demand for his work also continued into 2019 (see section 6.1(b)(iv) below).
    1. Mr Stanbury used the sales invoices and accounts for 2019 to generate a lost sales figure of CAD $13,728 per lost large painting and CAD $10,241 per lost medium painting for 2018. Again, a costs deduction of CAD $2,000 per painting needs to be made, giving lost profit figures of CAD $11,728 per large painting and CAD $8,241 per medium painting for 2018.
    1. I therefore calculate the Claimant’s lost income for 2018 on the basis of (i) 10 lost large paintings at CAD $11,728 profit per painting = CAD $117,280; plus (ii) 4 lost medium paintings at CAD $8,241 profit per painting = CAD $32,964, giving a total of CAD $150,244.
(iv): 2019
    1. In 2019 the Claimant produced around 70 paintings and 40 drawings. These figures are very similar to those for 2018 and illustrate that his symptoms were stabilising, as was his ability to cope with them. The Claimant again claimed a shortfall of 10 large plus four medium lost paintings for this period. Mr Rabinowitz questioned whether the fact that the Claimant spent the second half of 2019 in the Stuttgart residency should lead to a reduction in the shortfall. There is some force in this, given the Claimant’s evidence that a residency generally involves an element of holiday time. However, the residency does not seem to have adversely impacted on his productivity for the year, as his figures are similar to those for 2018. The tone of the correspondence of the Stuttgart residency is also quite formal: it describes the residency as an academy fellowship and does not refer to any time off for travel. I therefore do not consider that this is a reason to reduce the shortfall claimed and so adopt the Claimant’s figures of 10 large paintings and fourmedium ones.
    1. I am satisfied that if the Claimant had produced these 14 paintings in 2019, he would have sold them. Mr de Montferrand had organised a solo show in Beijing in March/April 2019 and it had sold out. Mr Charbonneau had acquired several of the Claimant’s pieces in mid-2019 to “test the market” and “sold all the pieces without difficulty”. His witness statement, signed in November 2019, noted that the Claimant’s work was “in constant demand” such that “I have no doubt that if Manuel were able to provide me with more art these would sell”. Mr Gupta’s statement from the same month also said that “demand remains extremely high globally and waiting lists are forming for his works”. The demand for his work also continued into 2020 (see section 6.1(b)(v) below).
    1. Mr Stanbury used the sales invoices and accounts for 2020 to generate the lost sales figures for 2019. He generated a lost sales figure of CAD $23,403 per lost large painting and CAD $13,233 per lost medium painting for 2019. Again, a costs deduction of CAD $2,000 per painting needs to be made, giving lost profit figures of CAD $21,403 per large painting and CAD $11,233 per medium painting for 2018.
    1. I therefore calculate the Claimant’s lost income for 2019 on the basis of (i) 10 lost large paintings at CAD $21,403 profit per painting = CAD $214,030; plus (ii) four lost medium paintings at CAD $11,233 profit per painting = CAD $44,932, giving a total of CAD $258,962.
(v): 2020
    1. In 2020 the Claimant produced around 44 paintings and 28 drawings. These figures are lower than those for 2019, partly due to his studio being closed due to the Covid-19 lockdown in April 2020. This would have happened in any event and so I consider it necessary to reduce the shortfall claimed (which was otherwise the same figure as was advanced for 2018 and 2019). Bearing in mind the Claimant’s reduced productivity overall during this year, and the impact of the lockdown, and taking a broad-brush approach, I reduce the shortfall for this period to eight large paintings and three medium ones.
    1. I am satisfied that if the Claimant had produced these 10 paintings in 2020, he would have sold them. Mr Gupta explained that he had included the Claimant in some virtual art fairs during the pandemic and that all the pieces the Claimant had placed with him during 2020 sold. Mr Charbonneau organised a sale of 10 small pieces in September/October 2020 and they all sold. Mr de Montferrand exhibited the Claimant’s work at shows in China in June and November 2020 and all nine pieces sold. The Claimant also described selling three of the four pieces he exhibited at the PHI Foundation in Canada. The demand for his work also continued into 2021 (see section 6.1(b)(vi) below).
    1. Mr Stanbury used the sales invoices and draft accounts for 2021 to generate the lost sales figures for 2020, at CAD $27,405 per lost large painting and CAD $12,602 per lost medium painting. Again, a costs deduction of CAD $2,000 per painting needs to be made, giving lost profit figures of CAD $25,405 per large painting and CAD $10,602 per medium painting for 2020.
    1. I therefore calculate the Claimant’s lost income for 2020 on the basis of (i) eight lost large paintings at CAD $25,405 profit per painting = CAD $203,240; plus (ii) three lost medium paintings at CAD $10,602 profit per painting = CAD $31,806, giving a total of CAD $235,046.
(vi): 2021
    1. In 2021 the Claimant produced around 65 paintings. For this period, I accept the Claimant’s case that but for his symptoms he would have produced 10 large plus the equivalent of four medium paintings.
    1. I am satisfied that if the Claimant had produced these 14 paintings in 2021, he would have sold them. Mr Charbonneau and Mr Gupta both signed witness statements in March 2021, referring to an unmet need for the Claimant’s work. Mr Charbonneau said that “for months” he had had a list of “billionaire collectors, museums and embassies waiting for large artworks from Manuel”. At trial he said there were 72 of the 1,700 collectors he worked with on this list and he did not have enough “cards to play” (pieces of the Claimant’s work) to meet their demand. Mr Gupta referred to being unable to meet the demand for the Claimant’s work from collectors in the USA, Canada and Singapore. The Claimant explained that the Museum of Fine Arts purchased the largest painting he had created for the Survivance exhibition that had re-opened in early 2021. I note that this exhibition was described on the Frieze website from March 2021 as “one of the top 5 shows to see in the US and Canada”. Ten of the paintings in the Power Plant exhibition in 2021 also sold.
    1. Mr Stanbury calculated the lost sales figures for 2021 at CAD $36,695 per lost large painting and CAD $16,874 per lost medium painting by using the actual selling prices in 2021, increased by 33.9%, this being the average price increase across all currencies, obtained from review of the Claimant’s price lists, as detailed in Schedule 8A to his report. I accept this methodology as sound. Again, a costs deduction of CAD $2,000 per painting needs to be made, giving lost profit figures of CAD $34,695 per large painting and CAD $14,874 per medium painting for 2021.
    1. I therefore calculate the Claimant’s lost income for 2021 on the basis of (i) 10 lost large paintings at CAD $34,695 profit per painting = CAD $346,950; plus (ii) four lost medium paintings at CAD $14,874 profit per painting = CAD $59,496, giving a total of CAD $406,446.
(vii): 1 January 2022-31 March 2022
    1. For the final period of past loss relating to early 2022, I am again willing to accept the Claimant’s model of 10 lost large paintings and four lost medium paintings. I also accept that if he had produced a pro rata share of these paintings during this part of 2022, he would have sold them, in light of the gallerists’ evidence of ongoing unmet demand referred to under sub-paragraph (vi) above and the powerful evidence as to the Claimant’s current trajectory described in section 7.1 below.
    1. Mr Stanbury calculated lost sales figures for 2022 at CAD $60,374 per lost large painting and CAD $23,077 per lost medium painting. Consistent with the model used throughout, these were based on his predicted sales figures for 2023. To calculate these, Mr Stanbury relied on a key passage in Mr Francis’ September 2021 report, which I set out in full, as this is also the basis of the Claimant’s future lost income claim:
“[The Claimant] has recently been advised to raise his sales prices and has done so to the level of [USD] $100,000 for a large painting…and I would expect his sales prices to increase over the next few years towards a level of [USD] $150-250,000 for large paintings and [USD] $50,000-70,000 for his medium paintings, and then perhaps to level off. I would put the chance of these price ‘brackets’ being achieved at 70% given the evidence of his career progression to date, indeed I would be very surprised if they were not reached. Going beyond 5 years or so is very speculative, because of market forces and interests…long term his prices are unlikely to reduce below the level reached in this initial period of rising prices and might well continue to rise if the market remains strong for his genre”.
    1. At trial Mr Francis was tested on his predicted sales prices because it was not clear that the Claimant had in fact already raised his prices to USD $100,000 for a large painting: the most recent price list available was from July 2021 and the highest price on that was USD $74,200. Moreover, Mr Gupta and Mr Moos had been less optimistic on the issue in their March 2021 statements. Mr Gupta had said that the price of the Claimant’s larger-scale work should rise to “something in the region of USD $100,000 or more within the few years”. Mr Moos said that “over the next three years” he could “confidently predict” that the Claimant would reach sales prices “in the region of USD $100,000”.
    1. Mr Francis readily accepted that these witnesses, especially Mr Gupta as one of the Claimant’s long-standing gallerists, had a “good feel for [the Claimant’s] values”. I consider that as professional people “closer” to the Claimant and his position in the market, Mr Gupta and Mr Moos are better placed to estimate his likely sales prices in the immediate term than Mr Francis, who could only give quite general predictions. In this regard I take the same approach as the trial judge in Collett v Smith [2008] EWHC 1962 (QB) at [97], who had regard to the views of Sir Alex Ferguson, given his “a wealth of experience in the development of young [football] players”: she considered that although his was not expert evidence, it “must inevitably carry great weight”.
    1. Further, the evidence relating to potential comparator artists for the Claimant summarised at section 7.1 below shows that they have all achieved sales prices in excess of the USD $100,000 figure given by Mr Gupta and Mr Moos. There is evidence that the Claimant’s prices are rising and heading towards the USD $100,000 figure. Mr Sainty did not appear to consider the prediction unreasonable. These pieces of evidence reinforce my view that the prediction by Mr Gupta and Mr Moos is sound.
    1. I therefore consider that calculation for this period of past loss should be based on a revised assumption of the Claimant achieving a sales price of USD $100,000 for a large painting by the end of March 2024 (that being three years from when Mr Gupta and Mr Moos signed their statements). Mr Francis’ initial prediction in relation to the sales prices of a medium painting should also be reduced proportionately. This gives a figure of USD $30,000 for a medium painting.
    1. As noted above Mr Francis had estimated that the Claimant had only a 70% prospect of achieving these prices. The use of this percentage figure recognised that however popular an artist is at any point in time, there are inherent uncertainties in the art market, not least due to changing fashions and tastes within the market. Given the current evidence of unmet demand for the Claimant’s art (see section (vi) above) and the fact that he is clearly currently on a powerful upward trajectory (see section 7.1 below) I see no reason to reduce the 70% chance figure for this period of past loss.
    1. For ease of calculation, this period of past loss should end with a nominal judgment date of 31 March 2022, that being shortly before the actual judgment date, and almost exactly one year from the estimates given by Mr Gupta and Mr Moos.
  1. Accordingly, the principles applicable to this part of the past loss award are: (i) shortfall of 10 large paintings and four medium paintings; (ii) lost profit figures for those paintings to be calculated based on predicted sales prices for 2024; (iii) those predicted sales prices to be calculated by working out the intervening prices between the Claimant’s 2021sales prices (see section 6.1(vi) above) and him achieving a sales price of USD $100,000 for a large painting and USD $30,000 for a medium painting by the end of March 2024; (iv) costs deduction of CAD $2,000 per painting to be applied; (v) reduction to reflect that the Claimant has only a 70% prospect of losing the value of the shortfall calculated in this way; and (vi) pro rata award to reflect period of past loss of 1 January 2022 to 31 March 2022.

FUTURE LOSSES

The judge then considered the appropriate approach to future losses.

7: Future losses
7.1: Future lost income
(a): The issues
    1. Mr Francis and Mr Sainty broadly agreed that the potential scenarios for the Claimant’s future income are that (1) his prices continue to rise; (2) his prices level out and “hold”; (3) his prices fall; or (4) some combination of these scenarios.
    1. Predicting the future loss of income for any artist will be difficult. The Second Defendant accurately summarised the general uncertainties of the art market as “staying in vogue, market preferences, changes of gallerist, variation of discounts, economic calamities, geopolitical instabilities, sustainability of pricing, competition, physical health, other emotional demands, perhaps even another pandemic”.
    1. The Claimant’s case was that for the rest of his life he will continue to suffer a shortfall of 14 paintings a year, demand for his work will remain as it is and he will continue to be unable to meet that demand. Mr Huckle submitted that the 70% chance figure given by Mr Francis and used throughout sufficiently reflected any risks that this would not occur. He invited me to modify any of the underlying assumptions in the calculations Mr Stanbury had used if I felt it appropriate to do so, in light of the evidence, but maintained that a conventional multiplicand/multiplier approach could still be used.
    1. Mr Francis and Mr Sainty agreed that predicting the evolution of any artist’s work, its value and pricing beyond the next two to three years involves speculation. Mr Francis volunteered that when he was working with Anthony Gormley and Jean-Michel Basquiat at the outset of their careers, he would not have been able to predict what they would be earning two to three years later.
    1. The Second Defendant’s primary position was that in light of this agreed evidence, no award to reflect the period beyond two to three years could be made, because all attempts at quantification would be too speculative. I do not agree. As Keene LJ observed in Bullock at [19]-[21], all assessments of future loss of earnings necessarily involve some degree of uncertainty. As Langstaff J said in Van Wees at [100], where there are “a number of uncertainties and imponderables which are not amenable to any precise answer”, the court needs to perform “the best jury assessment [it can] in the light of all the material, having seen the witnesses and considered what [it thinks] to be the realities of the situation”. Having conducted the assessment, the award may be very much smaller than that claimed, or may indeed be nil, but this does not mean the court should not carry out the process.
    1. The Second Defendant’s secondary position was that any award would need to reflect “the overwhelming probability” that the Claimant’s prices would “go up and then come down, very likely at a significant rate, such that the multiplicands…are far too high. Moreover, the proportion of unsold works will likely go up and his lost profit become even smaller”. For these reasons, even if some award could be quantified for the first two to three years, it was said that beyond that a Blamire award was appropriate. By way of illustration only an award based on two lost paintings a year was calculated.
(b): Duration of the Claimant’s productivity and the impact of his symptoms on it
    1. The Claimant’s significant efforts to build and sustain a demanding career despite his symptoms illustrate his commitment to his work. I consider it likely that he will continue to paint and create art in other mediums as long as his health permits him to do so. As Mr Francis noted, “[a]rtists tend not to retire as long as their ability to work continues, and there is now a more general expectation that long careers are normal”. In my view the Claimant is likely to be akin to the two artists in their 80s described by Mr Francis at trial, who continue to work seven days a week and “almost certainly” produce over large numbers of pieces of art a year.
    1. I have already found that the Claimant’s symptoms are likely to be permanent. Thus, I accept that his symptoms will continue to adversely affect him for his lifetime. In light of my findings on mitigation of loss set out at section 4 above, I do not consider that this issue needs to be factored into the calculation of the Claimant’s future loss.
    1. The more difficult question is whether the ongoing impact of his symptoms and the ongoing shortfall will continue to cause a financial loss to him. This depends on an assessment of his likely ability to continue selling all his produced works, and to continue generating sufficient demand to sell his nominal “lost” works, and if so to what financial level. It was to this issue that Mr Francis and Mr Sainty’s evidence was primarily addressed. I also took into account the evidence from the gallerists and Mr Moos, consistent with the approach taken in Collett, referred to in section 6.1(c)(vii) above. I address the Claimant’s future loss claim in two distinct chronological phases to reflect the agreed expert evidence as to the two to three years point, and in light of my findings in section 6.1(c)(vii) above about the Claimant’s prices in the immediate term.
(c): Future lost income from 1 April 2022-31 March 2024
    1. The evidence makes clear that the Claimant is currently on a potentially powerful upward trajectory in his career:
(i) His sharply increasing sales demonstrate, as Mr Francis said, “sustained and rising interest in his work internationally”.
(ii) There has been increasing awareness in the art world in recent years of the need to recognise artists from diverse backgrounds. The Claimant may well be benefitting from what several of the witnesses described as a long overdue historical correction. Although Mr Sainty had initially characterised the impact of the Black Lives Matter movement as a trend, he later accepted that it is more likely to lead to embedded change in the art world.
(iii) Displaying in art institutions or museums as opposed to galleries significantly assists in taking an artist’s career to a higher level, and the Claimant has recently achieved this: in 2020 he exhibited in what Mr Moos described as “two significant art institutions” (the Museum of Fine Arts in Montreal and the Power Plant in Toronto). Although Mr Sainty was of the view that these are not among the most prestigious museums worldwide, there is evidence that the Claimant is moving into the international museum scene: the Miami Museum of Contemporary Art having committed to showing his works and the Claimant has been in some discussions with the Tate Museum in London.
(iv) The Claimant has the benefit of what Mr Francis described as “distinguished and well-connected collectors” such as Ms Joyner, and this “helps to sustain and widen the collector base as it is competitive”. Ms Joyner’s role as a trustee and benefactor of major US museums was also likely to assist.
(v) In 2020 the Claimant was “long-listed” for the Sobey award, described by Mr Charbonneau as “the biggest award in Canada, attracting a lot of publicity”, which “has been the springboard for the careers of many Canadian artists over the years”. Due to Covid-19 the committee decided to share the award among all 25 long-listed artists.
(vi) In late 2021 two of the Claimant’s large works featured in the ‘Social Works II’ exhibition at the London Gagosian, widely recognised by the witnesses as one of the world’s leading galleries (variously described as the “Ferrari” or “Rolls Royce” of the art world). This was described by Mr Moos as a significant achievement for the Claimant. The two works sold, and he has since provided them with four more paintings. In early 2022 he arranged a video interview with Gagosian to go on their YouTube channel.
(vii) In 2021 he was working on a major catalogue of his work, to which a number of internationally respected authors had agreed to contribute, and the design concept for which was being created by Ima Boon, described by Mr Moos as the “greatest living book designer”.
(viii) On 4 January 2022 the Artnet website included the Claimant as the only Canadian in its list of “12 artists poised to break out in 2022”.
(ix) In early 2022, he was taken on by Pilar Corrias, London gallerist. A show was arranged for April 2022. Mr Moos noted her “outstanding profile as an early detector of talent” and ranked her “among very few London and Europe based galleries”. He was clear that she “knows how to develop the careers of young artists in an expert fashion” and referred to “at least three artists in her stable I have watched rise”. While Mr Sainty was more guarded in his recognition of her, he did accept that while thousands of students graduate from art school each year, a “small proportion” get taken on by dealers at different levels.
    1. In my view Mr de Montferrand accurately summarised the position when noting that the Claimant “…is now entering a higher level in his career as an emergent international artist”. Similarly, Mr Francis described the Claimant as being on a “steep trajectory” that was “rare but demonstrable” and showed “demonstrated skills, business and social as well as artistic, that point towards a drive for success”; “it is all going in a certain direction so far”. He has recently had one less successful exhibition, at the Matthew Brown gallery in Los Angeles, but this appears out of kilter – at least for now – with the otherwise positive evidence.
    1. In section 6.1(c)(vii) I explained that I accepted the evidence of Mr Gupta and Mr Moos to the effect that the Claimant is likely to achieve a sales price of USD $100,000 for a large painting and USD $30,000 for a medium painting by 31 March 2024.
    1. In light of all this evidence, I am satisfied that if the Claimant were able to produce 14 paintings in each of the two years from 2022-2024, he would sell them, and that there is no basis to reduce the 70% chance figure. In my view, this continues to be an appropriate figure to reflect both the Claimant’s prospects of continued success at the same level as he is currently enjoying and the general uncertainties of the art market.
    1. Accordingly, the principles to be used to calculate the annual multiplicand for the award of future loss to the Claimant for 1 April 2022 to 31 March 2024 are: (i) shortfall of 10 lost large paintings and four lost medium paintings; (ii) lost profit figures to be based on predicted sales prices; (iii) predicted sales prices to be calculated on the basis that by the end of March 2024 the Claimant would achieve a sales price of USD $100,000 for a large painting and USD $30,000 for a medium painting; (iv) costs deduction of CAD $2,000 per painting to be applied; and (v) reduction to reflect that the Claimant has only a 70% prospect of losing the total value of the shortfall calculated in this way.
    1. The Defendant did not challenge the Claimant’s selection of the multiplier of 2.005 for this period. The appropriate Table A adjustment to reflect the Claimant being Level 3 in terms of his education and employed had been applied.
(d): Future lost income beyond 1 April 2024
    1. In light of the expert evidence, making predictions beyond two to three years is much more difficult.
    1. At a general level, Mr Sainty identified the following as factors in an artist’s success: artistic talent, ambition, commitment, hard work, a bit of luck, a prominent dealer, collectors who buy their art, a broad market for the artist’s work and whether they are part of the “zeitgeist”. All of these appear present for the Claimant.
    1. In addition to this evidence, and the evidence of the Claimant’s current trajectory referred to in section 7.1(c) above, there is evidence that he genuinely “stands out” among his peers:
(i) Mr Sainty observed that of his graduating class from Goldsmiths, he is in the minority group (one third) still working as a professional artist, and that his “star has risen faster and higher than many of his contemporaries”.
(ii) Having tutored students for 23 years, Mr Mabb considered that the Claimant was “exceptional” and was notable for his drive, ambition to succeed and marketing skills. He also indicated that the Claimant was the only one of the students he had tutored who were at the level of success the Claimant was in their twenties, or who had gone on to enjoy the level of success he has.
(iii) Ms Joyner’s own view is that the Claimant is one of “a small group of really promising abstract painters globally” and that his work is “at the highest level of global contemporary abstract artists.”
(iv) Having worked in the art world for 25 years, Mr Charbonneau noted that his sales in Canada had been “unprecedented”, as museums and private collectors had been prepared to pay around four times as much for his work than they have historically paid for other artists.
(v) The Claimant’s art is being purchased by very wealthy private individuals, often referred to as “marque collectors”, Mr Moos, having worked as a museum curator for many years and written extensively on abstract art, now effectively acts as a private curator for eight such collectors. His two criteria for recommendations to his clients are that the work is of exceptionally high standard and capable of standing the test of time and that the piece represents a good financial investment. At his recommendation, five pieces of the Claimant’s work have been purchased by his clients. He intends to continue to recommend the Claimant’s work because “[m]ore than ever [his] work fulfils the stringent criteria that I apply”.
(vi) Many of the witnesses identified the fact that the Claimant is supported by Mr Gupta as significant, as he has a proven track record of helping establish the careers of some of the world’s leading artists. These include Theaster Gates and McArthur Binion, who have subsequently gone on to be represented by the world’s leading galleries such as Gagosian or White Cube. He also represents Mickalene Thomas and Angel Otero.
(vii) In his March 2021 statement, Mr Gupta accepted that he has a long-standing reputation for developing the careers of young artists, so that they have risen to being internationally recognised, displaying in prestigious museums and art institutions and attracting significant sums for their work. He set out his plan for putting the resources of his gallery into “projecting” the Claimant into this level and said that the Claimant was at the top of his team’s lists of artists who they consider for exhibitions, art fairs and group shows.
(viii) The fact that he has recently been taken on by Pilar Corrias in London is notable. She represents the very successful Christina Quarles
(ix) The fact that he is building a relationship with Gagosian is significant.
    1. Mr Francis noted that the Claimant would benefit from “more critical support from museum and Biennale curators”. It seems to me quite likely that he will develop this support over time. Having enjoyed success with the Canadian museum shows in 2020, and with the Miami museum show planned, it seems to me likely that he and his gallerists will work towards securing him a museum show in one of the more recognised centres of the art world in the short to medium term.
    1. A further factor that the experts had identified as potentially militating against the Claimant’s future success is that he is not based in one of the recognised centres of the art world, such as London or New York, nor established in these markets. I am not persuaded that this is a significant issue. In light of all the evidence I have heard, including of the Claimant’s willingness to move to London to study for his Masters and undertake residencies in Aruba, the USA and Germany, it seems to me likely that if his gallerists advised that a move to London or New York was necessary for his career, he would follow that advice. I heard no evidence to suggest that any personal or family ties to Montreal would keep him there if his career required a move.
    1. Based on all of this evidence, I am satisfied that there are signs that the Claimant will continue to sustain his current level of success, including unmet demand, beyond 1 April 2024. It is quite likely that by that point he will have been promoted more widely by Ms Joyner, continued to generate interest from the marque collectors and exhibited in more museums worldwide. He is quite likely to have benefitted from the continued promotion by Pilar Corrias, who has achieved significant success for other similar artists. His relationship with Gagosian may have developed and strengthened further, perhaps with a view to them formally representing him, as has happened with other artists initially nurtured by Mr Gupta. This scenario is not, in my view, unrealistic.
    1. There is also some, although I think a slim, prospect that his prices will continue to rise, and he will go on to achieve the sort of “stratospheric” levels of success enjoyed by a very small number of artists. One example that emerged in the evidence was Mickalene Thomas, age 51. From 2007-2012 her works sold for USD $20,000-50,000 and from 2013-2015 for USD $100,000-$175,000. In 2021 she achieved prices of USD $1,542,000 and USD $1,800,000 for works produced in 2011 and 2016 which had been brought to auction for the first time. In his report Mr Sainty referred to Sarah Lucas who achieved sales of USD $904,000 in 2014 and whose works regularly sell for £100,000-£250,000. At trial Mr Sainty mentioned to Cecily Brown, a British artist promoted by Gagosian, who has achieved what he described as “Olympian” or “stratospheric” success. He referred to a work she had sold for $7 million.
    1. However, there are a number of very powerful areas of evidence that cut across this otherwise positive picture, and which create very significant difficulties for the Claimant’s lifetime loss claim.
    1. First, Mr Sainty was clear that very few artists maintain lifelong success to the level of financial remuneration sought by the Claimant. He provided numerous examples of artists who have achieved significant success in their early years, but whose fame and income have then reduced considerably, saying “[a] rapid rise and later fall in values is more common than contemporary dealers like to admit, while changing fashion and rapidly shifting taste along with the fickleness of buyers cannot be predicted”. He referred to the Young British Artists (YBAs) promoted by British collector Charles Saatchi in the early 1990s, others who had achieved initial success having graduated from Goldsmiths or exhibited at the ICA, and further examples. He supported his evidence on each of these artists with data showing the prices they had achieved at auction.
    1. The typical pattern provided by Mr Sainty was of these artists achieving very high sales prices at the start of their careers, but then their prices and the demand for their work reducing over time, even if their work remained critically acclaimed. For many of the artists, their work simply does not get brought to auction now. He noted that with one exception none of the YBAs are now currently selling their works through the main London and international galleries. Further, if the art is brought to auction, it often does not sell or it achieves relatively modest sums, often less than £10,000 per painting. Several of these artists have now taken up other professions such as teaching. Although the experts agreed that the YBAs were not direct comparators for the Claimant, I do not consider that this undermines the force of Mr Sainty’s evidence. His research showed that artists going into “tailspin”, as Mr Huckle described it, is a recognised pattern, not limited to the YBAs. Even artists who have achieved very substantial success in life can fall out of fashion in their final years: Mr Sainty cited Boticelli as an example of this.
    1. Second, there was no clear, consistent and detailed body of evidence to counter this picture from Mr Sainty. Mr Francis agreed that “most” artists, even those such as the Claimant “with a good art school education and mentoring” do not “necessarily go on to sustained and successful careers”. However, he contended that changes in the art market over the last twenty years mean that the “extreme unpredictability” of earlier generations’ reputations has been “replaced with more information, market analysis and critical attention which contributes to consensus as to the interest, and consequent success of artists”. This led him to assert as a general proposition that “[t]hose artists who fly high and then crash are very few”.
    1. I struggled to understand how the changes in the art market over the last twenty years mean artists’ careers are any more secure: as Mr Sainty said: “merely because [the contemporary art market now] is larger does not make it less volatile nor does it preclude changing fashions and demand for individual artists”. I found force in Mr Sainty’s arguments that there have been previous “booms” such as that which has occurred in the last twenty years and the art market has always been to some degree international. Further, his evidence that as opportunities expand so does the competition made sense to me.
    1. Further, I was not provided with a persuasive series of examples of artists who have enjoyed comparable success to the Claimant and gone on to sustain it over a very lengthy period. The point was made that as Mr Sainty is not a dealer of contemporary art, he had no access to figures from the primary art market (when an artist first sells their painting, normally to a gallery or direct to a collector) and had to rely on auction prices. That was correct, but he presented the results of his analysis of the auction results in a comprehensive way, and they provided detailed evidence of the sales prices of a significant number of artists. There was no similarly referenced contradictory picture provided by Mr Francis based on primary art market data.
    1. The experts agreed that selecting comparator artists was somewhat arbitrary, they eventually settled on three young, black artists for this purpose: Christina Quarles, Oscar Murillo and Angel Otero. These artists exhibit in the same galleries as the Claimant; Mr Gupta considers the Claimant to be similar to them; and Christina Quarles is represented by Pilar Corrias. However, they are not overly helpful for assessing the Claimant’s likely future loss, as they are all of a similar age to him (35). Further, they have all already enjoyed a higher level of success than he has. Christina Quarles, age 36, sold works at auction for USD $169,000-$490,000 between 2019 and 2021. Oscar Murillo, age 35, has been even more successful with 15 paintings having sold at auction for over USD $300,000 since 2013. The third, Angel Otero, age 40, enjoyed significant success at auction from 2013-2018, achieving a sales price of USD $121,000 at one point (but there were already some concerning signs in that he had not succeeded in selling his work at a 2021 auction).
    1. Third, the experts agreed that given the relatively short career the Claimant has had to date, he has not yet been able to demonstrate significant innovation in his art, which is important for continued artistic and commercial success. As Mr Sainty said “…[e]very artist must develop and innovate to sustain their careers. Most artists develop stylistically from their student years into their mid-30’s, but it is about that age that artists may find it most challenging to advance and innovate”. Further, “[o]nly a small handful of truly great artists have ever managed to sustain a lifelong career of constant innovation and creativity”. At trial he confirmed that “most don’t manage to do it [innovate]”; “many fail to innovate and achieve the same sense of novelty and excitement as they did when they were young”. He gave Picasso as an example of someone who had succeeded in this regard: he had totally re-thought his art every 10 years.
    1. The Claimant has diversified into different mediums, but the experts had in mind a more fundamental sort of innovation, of which there is no evidence yet for him. Mr Francis’ report had expressly said that “the evolution” of an artist’s work beyond two to three years is also hard to predict, as well as its value and pricing. The Claimant is business savvy, and will no doubt have an eye on the need to innovate, but whether he is able to do so with financial success is uncertain. This obviously depends on whether or not any innovative work he is able to produce continues to find favour on the market to the same level as his current paintings. There is some evidence already that his ceramic works have not done so, which underscores the uncertainty.
    1. Fourth, the stability of the Claimant’s reputation and sales prices have not yet been tested in the secondary art market at auction. Mr Huckle was right to argue that an artist only benefits from the primary art market. This means that auction prices do not help in assessing the Claimant’s own losses. I also accept Mr Francis’ evidence that auction prices are less crucial in the contemporary art market, which is heavily controlled by gallerists. This means that some young artists are highly successful without selling at auction, such that an auction record is “not necessary or essential”. However, he conceded that such a record “can be helpful as a measure of success”. It is a fact that the Claimant cannot point to a proven track record of auction sales. If he could, this would provide greater reassurance about his likely future prospects. Accordingly, its absence adds a further element of uncertainty to the future projections.
    1. I do not accept Mr Huckle’s submission that there is no more uncertainty in this case than in any case involving a self-employed person. There is significant uncertainty caused by the fact that this particular self-employed person works in a notoriously volatile industry, where there is good evidence that initial success is not necessarily a predictor of long-term success at the same level.
    1. However, I accept his argument that the uncertainty works both ways: it is possible that his prices will rise even further to the highest levels; it is also possible that his career will go into tailspin. He submitted that Mr Francis’ 70% projection for life was “sensibly cautious”, and it is my task to assess whether or not I agree.
    1. In light of all the evidence summarised above, while I accept that the Claimant has a chance of sustaining his success beyond 1 April 2024, and a slim chance of improving on it, I do not consider that continuing to use a 70% chance figure for his lifetime sufficiently reflects the uncertainties in the art market, and particularly the uncertainties about whether the Claimant will continue to attract the interest and generate the success he currently has.
    1. I was provided with no alternative percentage scenarios, nor chronologically graduated scenarios, by the Claimant. I therefore need to assess the loss of the chance to the Claimant as best I can in light of all the evidence.
    1. While there is some evidence that artists’ later works can be prized more highly, the more common pattern described by Mr Sainty is of initial success, waning over time, and then petering out. I therefore consider that the Claimant’s future losses should be looked at in two broad phases: (i) a period in the medium term after 2024 when his success is likely to be at its highest as he continues to enjoy the effects of the current powerful trajectory; and (ii) a longer term period when his success is likely to be less.
    1. Doing the best I can in light of the evidence, I consider it appropriate to make the Claimant further awards to reflect loss of income (i) for five years from 1 April 2024; and (ii) for the rest of his life, after 1 April 2029.
(i): 1 April 2024-31 March 2029
    1. I have selected the period of five years for this period because, allowing for his broadly five-year success to date, this would give a period of peak success for the Claimant of 10 years, taking him to his early 40’s. This is broadly consistent with Mr Sainty’s evidence that artists are often at their most creative in their 30’s, and then face the challenge of the need to innovate. His report provided some examples of this: Sandro Chio, whose peak was when he was “in his 30s” and Alan Davie, whose work “from his early 30s to early 50s” is still sought after. A 10 year peak period (even if some of the work from the peak period sells much later) is also a very fluid average derived from several of the examples Mr Sainty provided: Abigail Lane (a participant in the 1988 YBA Freeze show, who achieved good sales prices including for early work until 1998); Gillian Wearing and Michael Landy (who graduated in 1990/1988 respectively, were elected to the Royal Academy in 2007 and 2008 and have enjoyed critical success and good prices for work done “in the 1990’s”); David Salle (whose most valuable work was that done in “the 1980s [and] early 1990s”); and Julian Schnabel (who was highly sought after “in the 1980’s” and whose works from this period continue to do well at auction).
    1. In light of my findings above, the Claimant will still have an annual shortfall of 14 paintings as of 1 April 2024. His prices will have reached USD $100,000 for a large painting and USD $30,000 for a medium one. Considering all the evidence summarised above, and stepping back, I consider that the Claimant does have a reasonable chance of continued success during this five year period, by which I mean continuing to sell his produced art and being unable to meet demand due to his shortfall.
    1. However, in light of the absence of evidence of him being able to innovate his work, or a track record at auction, and the other numerous uncertainties of the art market, doing the best I can, I assess his chance of this level of continued success at this level at 40%. In my view this figure recognises the chances that his prices will rise or hold and that there will be continued unmet demand for his work, but also acknowledges the very significant risks that his prices will fall and/or that the unmet demand will.
    1. After circulation of my draft judgment Mr Huckle invited me to review this 40% figure, and the 70% figure used in sections 6.1(c)(vii) and 7.1(c), pursuant to the principles summarised by Fraser J in Gosvenor London Ltd v Aygun Aluminium UK Ltd [2018] Bus LR 1439. He argued that due to the polarised positions of the parties at trial there was no opportunity to canvass the broad loss of a chance approach I have taken to quantifying the Claimant’s loss. The Defendant argued in response that the Claimant’s case was predicated on a percentage chance recovery and any submissions relevant to the formulation of the loss on that basis could and should have been made at trial. I accepted those submissions, and on that basis concluded a review was not appropriate: Gosvenor at p.1462F-G, paragraph 52 makes clear that the discretion to alter a judgment after it is handed down should not be exercised so as to provide litigants with a “second bite at the cherry”, to remedy lacunae in their own evidence or raise further arguments.
    1. Accordingly the principles applicable to the award of future loss to the Claimant for 1 April 2024 to 31 March 2029 are: (i) shortfall of 10 lost large paintings and four lost medium paintings; (ii) lost profit figures to be based on predicted sales prices for 1 April 2024 of USD $100,000 for a large painting and USD $30,000 for a medium painting; (iii) costs deduction of CAD $2,000 per painting to be applied; and (iv) reduction to reflect that the Claimant has only a 40% prospect of losing the total value of the shortfall calculated in this way. This will generate the annual multiplicand. I address the multiplier below.
(ii): From 1 April 2029, for the rest of the Claimant’s lifetime
    1. As set out above, I am satisfied that the Claimant’s symptoms will continue to affect him, and his artistic activities, for the rest of his life.
    1. However, based on the evidence I have heard, what those artistic activities will be, and how he will support himself financially, beyond 1 April 2029 remain uncertain.
    1. The Claimant’s case was advanced solely on the basis that he will continue to paint and create art to sell professionally for the rest of his life. There is a chance that he will do so, and that that will provide sufficient income for him. The level of such income remains very difficult to predict in light of the agreed expert evidence.
    1. However, I am satisfied that a working assumption of the Claimant achieving sales prices of USD $100,000 for a large painting and USD $30,000 for a medium one beyond 1 April 2029, and having unmet demand at that level, for the rest of his life is not realistic. Rather, I consider that it is more likely, consistent with the broad pattern described by Mr Sainty, that the Claimant’s sales prices will drop significantly and then peter out and/or that the unmet demand for his work will cease during this period.
    1. If his income drops very significantly, he may decide to take up a teaching position as Mr Sainty explained other artists have done. The Claimant has shown himself willing to supplement his income when needed before (as he did before the Goldsmiths period, when working at Hewlett Packard). He already mentor’s student artists and his friend Mr Kiernander has already taken up a teaching position. Although the Claimant did not advance a scenario of this kind, it is my task to assess what is likely to happen in the future as best I can, based on all the evidence I have heard. Having done so, the Claimant eventually taking up a teaching post at some point seems a realistic possibility. However, there was no evidence before me as to the likely salary for an art teacher, the ability of the Claimant to secure that kind of work, how he would manage his symptoms while doing that kind of work and whether his symptoms would lead to any financial loss in this scenario.
    1. In light of all these uncertainties and doing the best I can in what is a particularly difficult exercise; I assess the annual loss to the Claimant for this period as CAD $32,850. I have reached this figure by two different routes.
    1. First, my expectation is that the re-worked annual multiplicand for the period at section 7.2(c) will be in the region of CAD $500,000 (on a 70% chance basis), equivalent to CAD $714,285 (on a 100% basis). This is because Mr Stanbury’s multiplicand for this period was initially CAD $1,048,580 (on a 70% chance basis), but this figure will reduce by about a half to reflect Mr Moos and Mr Gupta’s evidence as to the Claimant’s likely sales prices by the end of March 2014. Doing the best, I can in light of all the evidence, I assess the chance the Claimant has lost of lifelong success at his current level, including with continuing unmet demand, at only 5%. This figure reflects all the uncertainties above. 5% of CAD $714,285 is CAD $35,714.
    1. Second, although it was offered for the purposes of illustration only, the Second Defendant’s model based on the loss of two paintings a year is another way of constructing a more realistic, broad-brush approach to this part of the future loss claim. When Mr Stanbury’s calculations are re-worked the lost profit for a medium picture is likely to be around CAD $15,000. Two such lost pictures therefore equates to CAD $30,000.
    1. The rounded down mid-point of these figures is CAD $32,850.
    1. I consider that this very substantial reduction to the multiplicand figure advanced by the Claimant for this part of his future loss claim is necessary to reflect the significant risks that he will not sustain his current success, especially given the absence of evidence of innovation or auction history. In my assessment, the above awards afford him compensation for the chances he has lost as accurately as possible, given what is inevitably an uncertain exercise.
    1. I have therefore found myself able to continue to use the conventional multiplicand/multiplier approach advanced by the Claimant for this period of loss, albeit with very substantial modifications and assessing the multiplicand in a broad-brush way. That is consistent with the authorities indicating that judges should not resort to the Blamire approach unless essential.
    1. Accordingly, the award of future loss to the Claimant from 1 April 2029 for the remainder of his lifetime should be calculated on the basis of an annual multiplicand of CAD $32,850.
  1. The unchallenged multiplier advanced by the Claimant for the balance of the Claimant’s working life after the first two years was 44.82. I adopt this. It should be split proportionately between the two periods at sections 7.2(d)(i) and (ii) above.