Francis Bacon: boundaries of the body Dawn Ades
Melville also recognises that, as with cubism, it is not a question of an "increasing tendency towards abstraction," as Michael Fried wrote in Arts Magazine. Fried, as a critic in the Greenberg tradition, for whom the purity of the pictorial means, the avoidance of "theatricality" were of absorbing importance, was much more ambivalent about Bacon. He argued that the interlocking of paint and image often does not happen; he felt that figure and setting pull against each other, and, given his predisposition to abstraction, naturally preferred the latter: "broad fields of stained black or blue over which Bacon has painted with a dragging brush simple but elegant railings in bright, dry yellow [. . .]"7 Fried noted that the group of paintings after van Gogh’s The painter on his way to work (1888), the Study for portrait of van Gogh, marked some kind of a turning point, which he saw in terms of the increased density of paint which encouraged an overall configuration. While it is true that the landscape/background enforces itself in an unprecedented way here, with brilliant colour bands or slashes of paint by comparison with the hitherto dark grounds: curtains, shutters, cages or voids which absorb or contain the figure, the relationship is still one of tension and struggle. Although now in a sense reversed, in that the figure is dark against the colours, this is still the heart of the drama: the black spidery shadow cast by the painter on his way to work in van Gogh’s picture devours Bacon’s figure. If anything, however, the paintings which followed this sudden explosion of colour magnify the spatial ambiguity, and simultaneously simplify it, while the bodies are isolated, pressed and squeezed by space. Bacon’s attitude to the human body, and to the very idea of "being human" has much in common with that of the group of dissident surrealists gathered at the end of the 1920s round Georges Bataille and the review Documents. Bacon was, much later, to become a very close friend of one of them, the writer and ethnographer Michel Leiris, and it was Leiris who published an extraordinary essay in Documents in 1930: "L’homme et son intèrieur," in which certain aspects of Bacon’s "images" are prefigured. Leiris moves the question of the body’s ambiguous boundaries, discussed above in connection with cubist fragmentation and distortion, into a challenging philosophical arena; however, in asking the questions what is man, and what is human nature, he places the problem of the body’s representation at the very center. His ostensible subject—and one which is wholly in keeping with Documents’ use of the bizarre to question the idea of a norm—are a series of 17th century anatomical prints by Amé Bourdon from a medical textbook. Recalling an anecdote of a woman watching, repelled, a butcher eviscerating a beef carcass, and exclaiming "Do we have such horrors inside our body?" Leiris by contrast, describes the extraordinary beauty of these plates of bodies flayed to reveal muscles and sinews, dissected to uncover nerves and veins. He celebrates their irresolvably paradoxical nature: skinned and cut in half, these figures pose jauntily as living, caressing their own body or casually holding an ear in one hand. Leiris proposes that the clean surfaces of the conventional nude of academic painting dehumanizes the body, leaves it bereft of any sense of its mysterious reality. 1. David Sylvester, Interviews
with Francis Bacon, London: Thames & Hudson, 1980,
p.166. There are parallels at several levels with Bacon: his love of the interior of the mouth, his paintings of carcasses, recalling Rembrandt, his defiant stress on the beauty of the colour of blood. But it is also in the materialist challenge Leiris deliberately poses here to the conventional values placed in human nature that an echo is found in Bacon. Leiris suggests that the only pledge man has that he is not alone in a glacial and strange "nature" is the existence of a "human nature," that is, human creatures other than ourselves; but it is not companionship or society that matter, but the physical fact of the body, the sight of which, whether one feels solidarity or enmity towards it, is what touches us most closely. "Masochism, sadism, and almost all vices in the end are only ways of feeling more human because of being in deeper and more abrupt relationship with the body."8 It is the body, entrails and all, that constitutes human nature. In many different ways the bodies in Bacon’s painting are pushed to an extremity: sometimes literally in the grip of a violent sensation, sometimes with internal organs exposed through x-ray, as in the central panel of Triptych 1976, sometimes through the pure manipulation of the paint. Particularly striking are those works where the brute fact of the body is brought into relation with the grandeur of ancient myth, as in the Triptych inspired by the Oresteia of Aeschylus (1981), where the headless, naked figure of Agamemnon in the center is not just naked but his interior is exposed. Here we might recall also George Bataille’s notion of debasement, of continual "bringing down in the world" of man in his aspirations. The oscillation between man’s elevation, erection, verticality and his fall, reduction to the earthly horizontal is often enacted in Bacon’s paintings. Although Bacon did occasionally, as in the Oresteia triptych, draw upon literature for his subject matter, it was never to draw out a narrative, to tell a story. Sometimes there is a spectator in the painting, watching a couple, as in Triptych inspired by T.S. Eliot’s poem "Sweeney Agonistes." (1967) In Eliot’s "Sweeney Agonistes," subtitled "fragments of an Aristophanic Melodrama," louche and menacing characters exchange threats and seductions against a background invocation of a paradise "crocodile isle": "doris: You’ll carry me off? To a crocodile isle? sweeney: I’ll be the cannibal. doris: I’ll be the missionary. I’ll convert you! sweeney: I’ll convert you! Into a stew. A nice little, white little, missionary stew."9
There is nothing, Sweeney says, on this isle except three things: "Birth, and copulation, and death." He tells of a man who murdered a girl, and the final lines are a jazz age version of a Greek chorus, evoking a nameless hunted terror. Bacon’s triptych in no sense illustrates the poem, but conveys a similar haunted world of couplings and annihilation. As Michel Leiris said in his 1983 study of Bacon, in his canvases there are "incandescant parts, seething with energy, in contrast to neutral parts where nothing is happening."10 In this triptych there are three concentrated centers of energy; in the right and left panels, two couples—one male, the other female—are contained on plinth-like supports within a cage set against virtually identical neutral spaces. In each, there appears to be a mirror, one of which reflects a casual observer, on the telephone. In the center, there is no mirror but a window open onto a void, behind a terrible mass of flesh and clothes. Bacon, like Eliot, transposes into the rhythms of the modern world—its language and imagery, the tragic impulses of Greek drama. Despite his occasional references to mythological, religious or poetic subject matter, Bacon denied that he was affirming a traditional hierarchy, which placed history painting at the top, then portraits, landscape and finally still life. Agreeing that "as we are human beings, our greatest obsession is with ourselves," he suggested a different order, in which, as "things are so difficult, portraits come first." 11 In both the 1971 Self portrait and the 1976 Portrait of Michel Leiris, a strange and seductive ghostly likeness hovers, of calm and familiar features, behind the powerful thrusts and smears of paint. This uncanny remnant haunts the image like a memory just below the surface, but also works with the marks that have destroyed it to convey a likeness beyond that of mere "photographic" resemblance. The likeness incorporates physical stance, structure, movement, but there is also more at stake. Bacon talked of wanting to get at the essence of the thing, but he didn’t mean by that some transcendental, disembodied self: quite the reverse. It is rather that he wanted to grasp the impossible material whole, of the body in whose flesh our strongest sensations and passions are registered. But what of the many unidentified figures, often called Lying figure or Reclining figure? These are sometimes of uncertain gender, or appear androgynous. In the catalogue to the recent exhibition at the Hayward Gallery, David Sylvester makes the observation that in Triptych—Studies of the human body of 1970, the left hand figure is androgynous, while that on the right, despite its emphatic breasts, has a face that is very like Bacon’s own. This remarkable instance of entering or absorbing another’s body and even gender is linked by Sylvester to Bacon’s extraordinary capacity to switch between roles: "At moments he was one of the most feminine of men, at others one of the most masculine," and this leads him to Tiresias. In Eliot’s "The waste land," for Bacon the most resonant of poems, Tiresias, the "old man with wrinkled dugs" is the spectator, in whom "the two sexes meet":
"And I Tiresias have foresuffered all Enacted on this same divan or bed [...]" 12 The ambiguous boundary of the body, of the self and other is triumphantly transgressed in Bacon’s paintings. The transformation here enacted between bodies is also a consequence of pursuing, as Bacon said, "the suggestions within the image itself." The wrestling figures from Muybridge’s photographs, for instance, become coupling males. The process of alteration has an almost cinematic quality. Bacon described seeing "every image all the time in a shifting way and almost in shifting sequences," and comparisons could be made with the type of montage that is nowhere more powerfully achieved in film than in Dalí and Buñuel’s Un chien andalou. Bacon cannibalised photographs in a much more dramatic way than anyone in his lifetime realized. Salvaged from his studio are scores of newspaper and magazine photographs, plates from medical textbooks and other sources which were "worked over," sometimes violently erased, defaced, or collaged together, sometimes lines and marks added to pinpoint and exaggerate what had excited him in them. A news photograph of a cricketer, for instance, has had the top half of the body rubbed out, leaving the lower half of the body with legs encased in cricket pads, their tops curving like buttocks; this must be one source of the torsos in the early 80s paintings like Study of the human body 1982. These were in a sense his sketch pads, and what he did to them and how they relate to the paintings will be a complicated matter to resolve. What seems to be violent distortion in Bacon’s painting thus has several causes and effects. In the absence of the consoling religious myths and the loss of any notion of progressive modernity, Bacon put it for himself as a kind of internal dialectic: "Ah well, you can be optimistic and totally without hope. One’s basic nature is totally without hope, and yet one’s nervous system is made out of optimistic stuff." 1 12. ——, Francis Bacon: the human body, London: Hayward Gallery, 1998, p.38 13——, Interviews with Francis Bacon, op. cit
A PICKLED NOSE By ZINOVY ZINIK
Before Francis Bacon's portrait of Muriel Belcher was put up for sale, the auctioneers from Christie's arranged a private viewing for the press and regular patrons at the Colony Room. It was a clever idea, really, to bring the picture back to its birthplace. The late Muriel Belcher had owned Bacon's favorite watering hole (little water, much whiskey). The viewing was a cunning publicity stunt. Newspapers are constantly on the lookout for gossip, and Christie's people rightly recognized that a painting from Bacon's Belcher period, shown in the Colony, couldn't fail to attract attention. Muriel Belcher had arrived in London after the war, having run away from both her native Birmingham and authoritarian father, who was a prosperous Jewish impresario of Portuguese extraction. Muriel was accompanied by her lesbian lover, a Jamaican named Carmel, whose colonial origins may have influenced the naming of the club when it opened in 1948. Britain's then retrograde licensing laws forced pubs to shut their doors in the afternoon, so heavy-drinking Sohoites would be forced to move next door with their glasses to private establishments such as the Colony. In those days Francis Bacon was neither rich nor famous. He made up for this shortcoming with a wide variety of rich and famous friends whom he introduced to the Colony, which got him free drinks in perpetuity. Bacon called Muriel "mother," and Muriel reciprocated by referring to Bacon as her daughter. A close and cozy family, indeed. Soon, they were joined by the entire London school of painters—or, rather, the drinkers of that school. A love of booze was the only artistic thing they had in common. Soho is the very embodiment of all that is seedy and sensual, clandestine, illegal and brutally exhibitionist. It has long been the cognate of my tormented émigré soul. This square-mile magic island has for generations attracted to its shores all kinds of shipwrecked refugees and undesirables—French Huguenots and Spanish Jews, Italian anarchists and Marxist philosophers have all happily coexisted alongside the peddlers of sleaze and neighborhood nuns. Among this motley collection of outlandish types and sexual minorities, my displaced Muscovite-Londoner persona has always been perfectly at home. Within the magic island of Soho, the Colony Room is a separate state municipality, with its own borders, laws, and rituals, totems and taboos. Pretty much every drunk among the Soho diehards has a story to tell about the Colony, although many have never been inside. First, one has to find the entrance. This mysterious limen is squeezed between two nondescript restaurants (whose names and owners are constantly changing). The green door that leads to the Colony is usually camouflaged behind restaurant tables. This door opens onto a badly lit staircase, painted racing green. Climb two breakneck flights of stairs that pose mortal danger to life and limb, and one comes to another green door. Open it, and enter something very much like a theater set. Time has stood still for generations. The walls and ceiling are quite predictably green. To the eyes of an Irishman, green is both the color of shamrock and race tracks. For the English, it is probably most like a snooker table. I don't know what the symbolism of this green signifies for the Chinese, but in the minds of Russian alcoholics like myself, it is the spitting image of the Green Dragon of vodka delirium. But whoever you are, the moment you enter the room, you are lost to the outside world as if hijacked to the green woods of some enchanted forest. Every capital city in every civilization has a bar like this: a hidden entrance for the chosen few, a barroom crammed with dusty memorabilia, its row of tattered rickety stools taking up a third of the inevitably cramped room. The walls are plastered with photographs, paintings by "our great geniuses," old posters and pinups, framed newspaper cuttings referring to famous disturbances of the peace and public quarrels, old fan letters and postcards on the mantelpiece, pictures of "the inner circle" celebrating acts of outrageous behavior, crimes and misdemeanors, framed and unframed fragments of a glorious past—all of them like omens of a no-less exciting and scandalous future. The window box looks like the frame for a work of pop art: From its arch hangs Muriel's patent leather bag and her lacquered walking stick. Her pale, ravenlike features and piercing gaze look down on the drinkers from numerous photos. Long since dead, she still manages to dominate the room. In her day, she was notorious for cutting short any cant utterance or snobbish gesture, and drowning the sacrificial tippler in a torrent of obscenities of such force that he or she often didn't dare turn up again. Ever since the days of her fierce reign, the Colony Room has upheld its shock-tactic tradition with newcomers, as if testing their moral rectitude and spiritual resistance by subjecting them to all manner of verbal abuse. It is the Soho version of Darwinism. Anarchists may be egalitarian, but even they have their own passport systems, hierarchical orders, and seats of privilege, not to be sullied by riffraff. Having said this, the Colony Room crowd would never have anything to do with Democracy. Those accepted by the Colony Room never again feel lonely on this island. While the rest of England has fired of any general notion of human bondage, this enclave of incorrigible drunks, it seemed to me, managed to maintain a sense of belonging—to a tribal community, a secret society, or clandestine order of the chosen few. As a result, their sense of history has always been of a home-brew, samizdat variety, quickened with a taste of moonshine. Denizens of Soho---that separate nation—often express their sense of history through apocryphal accounts of drunken antics that eventually acquire the symbolic significance of state business. This was more so in the case at the Colony Club. Part and parcel of those chronicles was, of course, the Francis Bacon myth. This myth could only have been created amid the feverish atmosphere of Soho during the postwar years. During that period, some of Soho's habitues, nourished on a diet of undercooked Marx and raw Freud marinated in champagne, were discovering the Nietzschean abysses of the human spirit in a whiskey glass. Others, like the atheist and iconoclast Bacon, were trying to rescue man from his own depths—tearing apart the body, grabbing his genitals to pull himself out from the abyss of his spirit. Human anatomy has always played a major part in the Soho oral tradition. Every member of the Colony knows by heart the story of Bacon's fall down the stairs in the last throes of inebriation. Some stories say his eyeball popped out, but he shoved it back with a thumb. Others insist that it was not his eye but his nose that was put out of joint, but that he pushed it back into place with a single blow of his fist. He himself was so drunk that he couldn't remember whether it was his eye, nose, or right nut. Still, the details of the story matched the style and spirit of his paintings, disfigured bodies the color of raw ham in a nod to the origins of his name. (The rentboys of Soho called him "Eggs.") Incidentally, Bacon's favorite book was an illustrated manual entitled Diseases of the Mouth. To my mind, these shocking anatomical obsessions concealed a passion to prove that we are nothing but self-made machines, and his sole desire was to break us open—to see the mechanism and how it works. Like all idealistic materialists, Bacon was anxious to lay bare the human soul to show, as if in an anatomy lesson, how spiritual muscles make emotional tissues move. Bacon couldn't stand the sight of his own features. Those puffed-up cheeks made him look like a fat toad. The haunted expression of his eyes transformed the toad into a charming monster. He was one of those artists who spend their lives trying to discern their own image in alien things. Maybe homosexual cravings include the desire to see oneself in the mirror of another's eyes. When we came face-to-face for the first time (ahead of his Moscow exhibition), our hectic conversation, lubricated by a bottle of Famous Grouse, left me feeling that he wasn't talking to me but through me—to himself—as if he was reacting not to my words but to the echo of his own thoughts. I might just as well have stood up and walked away, leaving him with a tape recorder. I confused his defensiveness with the indifference of a dictator. Every artist is a despot of a kind, like all tyrants. Bacon was particularly sensitive regarding his image in the eyes of others. He seemed almost to have a mortal fear of being taken for someone he didn't want to be, and of being unmasked as someone he didn't suspect he was. Paradoxically, that Godlike terror of a clearly defined identity made a ferocious atheist of him. The person who believes in his own uniqueness cannot believe in the existence of an afterlife. The existence of an afterlife implies that your life will be reshaped all over again in a similar vein. That, in turn, means that your life in this world, as a work of art, was a flop. After all, how can a work of art be regarded as unique and perfect if it can be repeated somewhere else, re-created and emulated by someone else, even if by the hand of God? Bacon coaxed my own fear of being watched by cold and curious eyes. Yet as soon as the formal interview was over and the tape recorder switched off, his mood changed. I began speaking about my own idiosyncratic experiences as a Russian living in London, and witnessed the eighty-year-old tyrant with his childish tantrums transform into an inquisitive and clever child. He listened intently, laughed at every joke, and we quickly put away two-thirds of the Famous Grouse. The rest was polished off en route to the Colony Room, where we were to meet James Birch, who had organized Bacon's retrospective in Moscow. Birch was also known as "the Prince of Darkness" in Soho's nightlife. Birch was sensational in both roles. He was also the one who put me up for membership in the Colony. "It almost looks like Bacon could see the future of Ian's nose in Muriel's face," I declared boldly. Ten years had passed since my first (and last) conversation with Bacon. The portrait of Muriel was on an easel standing next to the bar. It was positioned so the picture's background matched the wall, where there hung an enlarged photo of the real Muriel staring defiantly down at her painted image. The original clearly disliked the bulbous growth on the copy's face, which looked like an old shoe. It was, in fact, a dead ringer for Ian Board's nose. Ian was Muriel's darling former barman. He had inherited the Colony Room, along with the unofficial title of Master of Ceremonies, or, better still, Master of the Unceremonious. Muriel had always used the Colony's chatterers as a multifaceted prompter, which gave her free rein to blurt out the most inventive obscenities. Some would say it was her own sophisticated way of entertaining her guests, rather than an outright humiliation, Ian, on the other hand, needed no prompting. He insulted the customers indiscriminately. During my first few years in London, I used to visit the Colony for a kind of shock therapy: After withstanding the terrors of Ian's unpredictable verbal abuse at the club, I could embrace my estranged and depressing London existence like a homecoming. It took me years to realize that Ian Board had ingested all the bile and bitterness circulating among Soho's old-timers and metabolized it into the foul-mouthed persona of tetchy punkdom. He used to sit on "Muriel's throne," a high stool situated not behind the bar but in front of it. It was tatty and worn-out, like the rest of the furniture at the club. Against the backdrop of the green-as-envy walls, Ian was the only spot of color. He used to dress like a flamboyant American beach bum, with his baseball cap, unthinkable jumpsuit pants, and a T-shirt. The tawdry colors matched the parrot in the toy cage by the window. But whereas the stuffed bird was quite dead, Ian was both alive and kicking—his customers, that is—and parroting their bawdy exchanges with horrible shrieks. Perhaps the most striking resemblance between Ian and the parrot was something that anatomy books call a beak and a nose, respectively. The bizarre colors of Ian's proboscis made his jumpsuits look drab. That boiled mush of a nose was the stuff of legend, purple and porous, like a rotting eggplant. Shift your eyes to avoid the horrible sight, and you might pick out one of the numerous photos of Ian on the walls. The progress from decadent youth to semi-invalid debauchery reveal the passing years measured out by his mutating nose. He must have possessed a strong masochistic streak to put up with its daily decay. The mirrors duplicated the catastrophic changes. I wonder if Ian's merciless stance toward himself caused his legendary impatience with others. "Hello, Miss Russia," he would blurt from beneath the peak of his cap, nostrils trembling (Ian's nose was a sensor for detecting newcomers). At such moments its scarlet colors reminded me of the Soviet flag. In fact, Ian had started to acknowledge my presence in the Colony only after a sharp exchange I had with Bacon on the subject of Eisenstein's Stalinist politics and his cinematic genius. Only then did Ian seem to realize that I was the only Soviet-born member of the Colony Room. Not as red as his nose, though. The nickname he invented for me—Miss Russia— contained the inevitable sexual innuendo. I wasn't the only one to suffer in this way. Even the Spectator's cartoonist, Michael Heath, was dubbed Hampstead Heath, as if he had something to do with that infamous hot spot of gay activity in London. No one came near Ian without being exposed as a queer, an easy lay, a bum, a coward, or a pervert. Part of the family, that is. It was my dream, wasn't it? To become one of the family. A dream fulfilled. So every time he called me Miss Russia, I swallowed the insult with a faint smile, Almost a year had passed since my last visit to the Colony, when we celebrated the anniversary of Ian's death. Drunken tears, shouts, hysterical laughter, songs sung out of tune. Now, the place was quieter. Otherwise, it was not much different. The crowd that came for the private viewing of Bacon's portrait gradually dispersed. Only the regulars were hanging on. Not unexpectedly, I was greeted by two familiar backs. One belonged to the bearded Malcolm, a producer of avant-garde and radical porn videos, and the other to the bulky Bill Greenberg, editor of the avant-garde and radical monthly journal Engagement. With his backside draped over the barstool, Greenberg looked like an exhibit from one of Malcolm's experimental porn shows, which, in turn, might have become the subject for an analytical review in Greenberg's radical magazine. Ostensibly dedicated to East—West dialogue during the Cold War, Engagement was subsidized by a number of the world Intelligence services (or so it was rumored), while its editor was engaged with Malcolm in the study of the human race, Eastern and Western, at nearby bars and parlors. The helix of their activities was a reflection of the local topography. Greenberg's offices were right next door to Malcolm's studio on Windmill Street. From time to time, respectable, bookish contributors to Greenberg's Engagement would absentmindedly get the wrong entrance. Afterward they would wonder why lining up to support freedom of expression had to make them party to the staging of alternative sex fests at their publisher's editorial offices. Greenberg was too busy to answer this burning question, because he spent most of his working hours with the Colony mob, smoking his anti-American Cuban cigars (evidently mandated by the name of our club). Copyright © 2001 Zinovy Zinik. All rights reserved. Context Books ISBN: 1-893956-04-0
The Post-Human Clay David Garcia's essay, originally published in Nettime, analyses Francis Bacon's paintings as forms of photography. To contextualise such painterly works thus, provides a useful context for understanding the photographic basis of other material arts.
Post-human Clay David Garcia's essay, originally published in Nettime, analyses Francis Bacon's paintings as forms of photography. To contextualise such painterly works thus, provides a useful context for understanding the photographic basis of other material arts. 'The active locus of science, portrayed in the past by stressing the two extremities, the mind and the world, has shifted to the middle, to the humble instruments, tools, visualization skills, writing practices, focussing techniques and what has been called "representation." Through all these efforts, the mediation has eaten up the two extremities: the representing mind and the represented world. The shift has had the enormous advantage of multiplying the connecting points between art history and the history of science......' Bruno Latour; How to Be Iconophilic in Art, Science and Religion. 1998 'I would like my pictures to look as if a human being had passed between them, like a snail, leaving a trail of human presence and memory trace of past events, as the snail leaves its slime.' Francis Bacon; catalogue notes, 1955 'Modern art aspires to the condition of photography' Susan Sontag (quoted from memory, I think from "Against Interpretation") In most reflections on the post-human, the work of Francis Bacon is seldom mentioned. This would be particularly true of postings on this list where insights provided by the visual arts into technological culture are often (as in the case of net-art) seen as necessarily embedded in the technologies themselves. The idea that a practice as archaic as painting might illuminate aspects of human transformation in and through technological media, might be regarded with suspicion. This is even more likely to be the case with an artist like Francis Bacon, a white, male, figurative painter whose important work was made in the 40s', 50s' (trailing off into the formulaic during the 60s', 70s' and 80s). He is all to easily mistaken for that familiar figure the 'brilliant English eccentric'. At best a hysterical version of continental European existentialism, which from the perspective of the visual arts, someone like Giacometti embodies with so much more "authenticity". To begin with there is just so much to dislike about Bacon. The stagy backdrops, in which his figures are trapped, appear contrived and in the worst sense theatrical. The writhing figures can seem histrionic, cheap bohemian thrills, to decorate the walls of the super rich with endless screaming popes. So why is it that his images continue to reach out beyond little England? Why is it that when most English artists who are rooted in the 40s' and 50s' now seem hopelessly dated, part of a literary age, does Bacons's work, with all its apparent weaknesses still feel urgent, contemporary, necessary? My proposition is that the answer can be found in the way he straddles the technological divide.. His real achievement lies not his explicit expressionism, but in the way his work reconnects us to the way photography has changed us. It reminds us, that the nature of photographic perception (hence our perception) is violent. Literally a violation. "...one's sense of appearance is assaulted all the time by photography and by film. So that when one looks at something, one is not looking at it directly but one is also looking at it through the assault that has already been made on one by photography and film........I think its the slight remove from fact which returns me onto fact more violently." (Bacon interview: 75) We no longer have any direct recollection of the merging of the camera's way of seeing with our own. It requires an act of historical imagination to reconnect us to a time when the brute facts of the photographic process were still fresh, not yet blurred by the processes of image manipulation. So we look back to moments when the photographic image was present but not ubiquitous, and if we are lucky we might have access to an imagination like Bacon's, when he began to paint seriously it was a moment when mass communication was redefining reality as itself. But the process was in its early stages and therefor more visible. Numbness in the face of mass, industrial scale mediation was still a generation away. The anaesthetised aesthetic must wait for Warhol. Although Bacon was in no way a pop artist he was fascinated, in a suspicious way, by Warhol, his mirror (mirror as in inverted reflection). Bacon's first and most enduring influence was Picasso, the violence of Picasso. The dismembering cruelty of Picasso. Unlike his fellow cubists Picasso exploited the discoveries of cubism to open up new ways of expressing the extremes of human sensation including tenderness. But only Duchamp's interpretation of Cubism matches Picasso's violence. It was the violence of Picasso that Bacon wanted to make his own, but he had none of Picasso's facility as a draughtsman. The salvation of Bacon, a self taught artist, lay in the fact that he couldn't draw. A late starter, although again like Warhol he was already successful in a more commercial field of art. Armed with his priceless arrogance he didn't have the patience to learn to draw from life (extreme impatience is one of the many unsung mothers of invention). So he took a short cut. From the outset his figures are drawn directly and shamelessly from photographs. But rather than simply using photographs as a reference or a substitute he made photography itself the subject. Photography's peculiarities, distortions and revelations; but above all the structural violence of the photographic was Bacon's discovery. He succeeded in transposing and amplifying the violence that drew him to Picasso, reinterpreting it from the perspective of photography; that aspect of photography that wrenches a moment out of the flow of time. But he did not transpose Picasso's warmth, he was wedded to the cold rhetoric of medical science (Bacon used medical photography as a continuous reference) it was a particularly contemporary objectifying violence he sought. J.G.Ballard's novels have a similar quality of medicalised pain. But in Ballard the connection of these sensations to the blurring of the boundaries between ourselves and our technologies is more conscious, more explicit. Although Bacon's subject was the rooted in the photographic he could never be mistaken for a photorealist but the comparison between his achievement and theirs is instructive. Unlike the photorealists he emphasised the materiality of his means, reminding us that photography's power lies not so much in optical verity but in the fact that it is based the physical. it is a material trace, a memory trace. It is as much a material record as a foot print (or a death mask) a photograph is a physical imprint of our shapes on light sensitive surfaces. It may not be our soul but it is indeed part of us snatched from the flow of time. The use of chance that is a key aspect of gestural painting amplifies this characteristic of photography and Bacons quest is somehow to use painting to replicate the photographic process. 'I would like my pictures to look as if a human being had passed between them, like a snail, leaving a trail of human presence and memory trace of past events, as the snail leaves its slime.' Bacon's carefully prepared stage settings suggest a painterly equivalent of the photographic plate, a trap or snare for the fleeting aspect of photographs. In the end it is this functional, questing, essaying aspect of Bacon's repetoir of mannerisms that make them bearable. "...the difference from direct recording through a camera is that as an artist you have to, in a sense, set a trap by which you hope to trap this living fact alive. How well can you set this trap? Where and what moment will it click?" (Interviews with Francis Bacon: David Sylvester 1975) I am aware of how much a short text like this leaves out about an artist as complex as Bacon. But that is the value of a list, that hybrid of private and public discourse. So perhaps our statements can be more extreme, less measured than in other more public contexts. I confess it was written out of frustration with a new biography of Bacon by David Sylvester. Sylvester's reputation as an art critic in England is considerable. It is partly based on his gift for befriending important artists, most notably Bacon and Giacometti. The aquisition of the Tate's important collection of Giacometti was greatly facilitated by this friendship. But most of all his reputation as the wise old owl of English art criticism rests on a justly famous series of extended interviews with Bacon and published in the 70s'. But once out of the company of lucid minds Sylvester's own prose invariably slides into pedantic descriptions, anecdotes and commonplaces occasionally lifted by quotations by the artists themselves. I hoped that his latest "Looking Back at Francis Bacon" would prove the exception but it continues to represent him (and it is true that Bacon himself sought this) as that cliché the painter of the human condition. On the contrary it is in Bacon's highly charged articulations of our transformation through a specific technology, that embody, most vividly, the post-human condition. David Garcia The State of Naratological Studies on Francis Baconand Notes Toward a New Theory.Cynthia Costanzo
Critical approaches and intellectual movements reverberated throughout Francis Bacon's long career, including biography, iconography, surrealism, existentialism, psychoanalysis, and poststructuralism. Considered chronologically, the ideas' applicability and utility are brought to bear against the paintings with particular attention to the issue of narration. Post World War II critics categorized Bacon's works as expressionistic or surreal and assumed an implicit narrative quality in Bacon's works. These early interpretations claimed that Bacon was telling "war stories." Criticism on Bacon regarding narration bifurcated with existentialism in the 1950's. Michael Leiris argued for the "absence" of narration in Bacon's paintings, changing the course of writing on Bacon by necessitating that other critics, likewise, explicitly examine their assumptions about narration. A major challenge to Leiris' argument arose from psychoanalytic approaches applied to Bacon's painting, particularly evident with Donald Kuspit. Kuspit invoked Bacon's own phrase: "the violence of representation," arguing that Bacon's project was to reinstill in modern art the possibility that pictorial signs could signify reality. Kuspit's emphasis on representation reopened the potential for narration in Bacon's paintings. A pivotal point occurred with Gilles Deleuze's poststructuralism in the 1960's. Deleuze critiqued the very system of representation relied upon by Kuspit and others for their psychoanalysis and narrative interpretations. Deleuze applied his critique in his 1981 homage, Francis Bacon: Logique de la sensation. Deleuze argued that Bacon avoided narration, a significant turn in Bacon criticism. After Deleuze articulated his view on the role (or lack thereof) for narration, based on his subversion of the structuralist paradigm of representation, subsequent critics necessarily contended with the interrelated issues of figuration, representation, and narration. Ernst Van Alphen's Francis Bacon: Loss of Self (1993) discounted previous analyses of Bacon's works and argued for a "narrative or perception." Although Deleuze, too, presumes, at least, a two-way interaction between the viewer and the painting, Van Alphen ultimately argues against the Deleuzian approach and asserts the importance of narrative. Contemporary scholars Dawn Ades and Andrew Forge, as well as Lawrence Gowing and Sam Hunter, all nod to Deleuze, if not directly supporting or refuting his theory, suggesting the current import of the narration question. Additionally, Bacon's posthumous biographers Daniel Farson and Andrew Sinclair acknowledge their critical stance with particular references to Deleuze. Based on the collective assessment of the main trajectories of scholarship on Bacon, the thesis concludes with points of departure for new inquiries into con's rich and enigmatic oeuvre.
Gorgeous slathers and oozes of paintGay gutter paintings by Francis Bacon are in-your-face
Francis Bacon: A Retrospective Exhibition
Retrospective exhibitions of the work of an artist are enormously valuable to the interested gallery-goer. You could wander the art museums and galleries of the world for years, seeing an artist's work - one piece here, a piece or two there - without ever getting a clear sense of the sweep of the artist's career, the way his art developed and changed. Depending on which works you chanced to see, you might get a distorted view of what the artist's oeuvre is really about.
(exhibit over - 1999) Our review of the later (2000) exhibition: Francis Bacon in Dublin Our review of the Bacon biographical film: Love is the Devil
other
books:
Becoming Bacon: Interview with actor Derek Jacobi Author/s: Jonathan Fryer This month sees the release of Love Is the Devil, a film about the painter Francis Bacon that doesn't attempt his biography but renders his disturbing vision with breathtaking visual poetry. Whether or not those who know Bacon's life and art from the inside concur with this depiction, it is a movie that raises more questions than it seeks to answer. At its heart is the actor Derek Jacobi, whose stunning performance captures Bacon's capacity to exist in parallel states of liberation and entrapment. If that's not a paradigm of modern art and modern life, what is? JONATHAN FRYER: Francis Bacon has been described as the most important figure in British painting since the Second World War - a genius, no less. What is it like to try to get into the mind frame of a genius? DEREK JACOBI: John Maybury, the writer-director of Love Is the Devil, hadn't written a script that dealt with that particular aspect. And, as an actor, I don't think you address the issue of "I am playing a genius" head-on like that, in the same way that you don't make moral judgements about the people you are trying to recreate. I once played Hitler [in the TV film Inside the Third Reich (1982)] and I had to play the man, not the monster. So when it came to Bacon I didn't think of myself as playing a genius. I just went for the person. JF: Bacon's art doesn't appear in the film, does it? DJ: We weren't allowed to show any of the original works. At the beginning, that might have been an obstacle, but, in fact, John made the artistic choice to try to make the film itself look like and feel like a Bacon painting. So each shot, each frame, each setup was consciously created and lit. We were placed in positions that suggested Bacon's paintings. But John certainly didn't want me to be seen recreating any of those paintings. JF: To what extent were you conscious of Bacon's work and life before you took on the role? DJ: Barely, I knew of the paintings; I'd seen some of them in galleries. But I really knew nothing about the man. I'd never met him, though I'd met people who had. His acquaintance was very wide. JF: Does that mean you used to hang out in Soho, where Bacon and many of his friends were based? DJ: No, although I was London born and bred. After [Cambridge] university, I went straight to Birmingham, where I stayed for three years. I didn't really come to London to live until 1963. Soho wasn't one of my haunts. I think you had to be a heavy drinker to really get to know Francis, and to be a member of [Muriel Belcher's club] the Colony Room - neither of which I was. JF: There is a quite startling physical resemblance between you in the film and Francis Bacon in real life - with that extraordinary round face that someone once memorably described as "a cherub with mumps." How much of that was makeup and how much did you blend into the part? DJ: It was a combination of things. I did identify with him after I'd studied his body language by watching television interviews and the like. Partly it was the makeup, particularly the hair. They darkened my hair and did it in that style he had, with that very characteristic little lick in the front. I was a stone heavier in those days, so I was a little more jowly than I am now. That helped me because Bacon had these great chipmunk jowls. We never wanted it to be an impersonation because I'm not a mimic. We were trying to present the spirit and essence of the man. I looked vaguely like him, and I moved vaguely like him. Once we got that, then we got on with the story that John had created, which is fiction. JF: Though it's largely based on fact, in that the central focus is on the relationship between Francis Bacon and one of his favorite models, his lover George Dyer, who was a small-time criminal. DJ: Absolutely. But John had to create what went on in private [between them]; that was the fictional part. Francis's [unkind] treatment of George in public was well-known. JF: How comfortable did you feel taking the role, given the sadomasochistic aspect of Bacon's relationship with George? DJ: I embraced it with open arms. It is way, way off my own center, my own persona. But an actor's juices start flowing when he's asked to use his imagination and asked to pretend. Then you can enter all those areas that don't come naturally to you but that you can recreate through the advice and help of other people, the script, and your own imagination. It was a thrilling journey for me. JF: Now you were born in East London - literally around the corner from where I live - and here you were playing Bacon, who was fascinated by the East End. In fact, it was almost a sexual turn-on for him. . . . DJ: Yes, indeed. Francis liked rough trade, and the East End provided that. And he also liked them with a tinge of criminality, too. JF: Playing Francis, did you find yourself sometimes thinking, Well, I wouldn't have done that! or did you just surrender to it? DJ: I did surrender to it - and I enjoyed it. I enjoyed his cruelty. I enjoyed being the center of attention at that bar, that feeling of power he must have felt he had, with all his disciples around him. I enjoyed that feeling of submission to George. And then I enjoyed the feeling of lacerating George in public with my tongue. JF: Your lifestyle is very different from Francis Bacon's. You have a reputation for being something of a loner. I gather you like nothing better than pottering about your garden or looking at your china collection, while Bacon, once he was outside his studio, was gregarious to an almost fatal degree. DJ: That was something else I enjoyed. And, of course, I was working with Daniel Craig, who plays George Dyer, and who would have got on terribly well with Francis Bacon because that's the sort of lifestyle that Dan leads. He's often up all night drinking, only gets two hours sleep. I've always had to have my eight hours. I'm not a great drinker, and I don't like parties. I'm a bit of a retiring flower. But with Dan at my elbow, it was something that, in the world of pretense, I could enjoy. JF: This is the second time you have played a notable gay character, the other being the celebrated mathematician and wartime code-breaker Alan Turing [in the play Breaking the Code]. Did you find any similarities between the two, or is one gay character just as different from another as heterosexual characters might be? DJ: Both in their own way, I suppose, were geniuses, but they were so totally different as human beings. Turing was characterized primarily by an enormous naivete. He was a child man - which could never be said of Francis. Turing lived very much in his head; Francis lived very much bodily. As you say: Gay, straight, curved, whatever, they were as different from each other as two human beings can possibly be. JF: On October 22 you turn sixty. Do you feel that this is the opening of a new era for you? DJ: In the last third, shall we say, of my professional life, having had a theater career and a television career, I'd like to start trying to build a movie career. And in that regard, playing Bacon ranks very high in importance and also difficulty because, as a film actor, I am still a learner. JF: The subject matter of Love Is the Devil is very different from most of your theatrical work. DJ: I've been long associated with costume drama, with Shakespeare, with, you know, the big cultural posh lot. This film is, in a sense, a contemporary piece set in the '60s. I'm hoping it will remind people - in a way that Alan Turing did - that I'm an actor who can play modern people, in trousers, and act as naturally as the other fellow - that I'm not a doublet-and-hose guy totally! COPYRIGHT 1998 Brant Publications, Inc.
|
|
|
|
British director John Maybury has been making experimental films and videos for over 20 years, yet his most famous work to date is a pop video, Sinead O'Connor's "Nothing Compare 2U" with its long, elegant takes of Sinead singing. That should change this week when Maybury's feature, "Love is The Devil" opens. The film covers 10 years in the life of British bad-boy painter, Francis Bacon. "Love Is the Devil" isn't a biopic about the painter of horror and the sublime, but a microscopic look at his relationship with a street thug named, George Dyer. Maybury chose to focus on their stormy relationship, as a window into Bacon's world. Unable to use Bacon's actual paintings, Maybury shot the entire film as if it was a Bacon painting. Images slide off the screen. Entire scenes are filmed through cocktail glasses. Ryuchi Sakamoto's minimalist, staccato soundtrack surfaces throughout Maybury's plot. Although "Love is The Devil" began as a low-budget BBC film, Maybury's success has gone far beyond its origins, with the film having been sold in over 25 territories to date. Strand Releasing is distributing the film in the United States, for what is rumored to be the most they have ever paid for a film. indieWIRE sat down with Maybury during a recent visit to New York. indieWIRE: The title, "Love is The Devil: Study for a Portrait" is complex and evocative. Where did it come from? John Maybury: Actually it was a title I had planned for a completely different project three years ago. I knew I didn't want to call the film, "Francis!" While I was writing the film, my decision early on was that it was secretly going to be the George Dyer story. Obviously it's not, but it is about the love affair. I also liked it cause it sounded like an old Marlene Dietrich line. (The sub-title) was simply taken from Bacon. All of his paintings are always called "study of something." The film is like a painting, but that has more to do with the structure of the film. It was deliberate to have fragments. Each scene is like a brush stroke and by the end of the film, you've got the complete composition. I know that sounds really pretentious, but hey, I am pretentious. iW: The opening sequence, which actually includes the beginning and the end of the film, could stand alone as an incredible short film. Did the two men actually meet while Dyer was trying to break into Bacon's apartment? Maybury: I tried to put the ending at the beginning. I didn't want it to be like a murder mystery or a suspense story. I wanted to take that element away. One of the first things you see is him dying. I also liked the idea of falling; like a fallen angel he drops into the space. It's a bit like Alice In Wonderland. In an earlier version of script, the first bit of dialogue I nicked straight from Alice In Wonderland. But in the end it just didn't quite work. There are conflicting stories. In one version, he did break into Bacon's studio. In fact during their relationship, he broke in several times. But I've also heard that Dyer saw Bacon in a pub with his friend and said, 'Oh you look like you're having fun. Can I buy you a drink.' That's not a very exciting beginning for a film. iW: "Love is The Devil" is an overwhelmingly visual film. What did the original script look like? Maybury: It was all clearly described, how the scenes would be treated and what the visual approach would be. It was more to help the cameraman and my producers. When it came time to start working on the visual side of things, they knew where I wanted to go. The budget was a little over 900,000 pounds [approx. 1.5 million dollars-ed.]. You're not really aware of that. If we had 3 million it wouldn't have looked any differently. Everyone would have been paid properly. The thing I'm really proud of is that you're never aware that it was that cheap to make. iW: The relationship between Bacon and Dyer is dramatic, to say the least. You show Bacon transferring his neurosis to his art, but Dyer is left stewing, with nowhere to put his. Maybury: He hasn't got anywhere, so he totally gave up. In the sexual arena, Bacon is the masochist and Dyer's the sadist. Psychologically, exactly the opposite is the case. As Dyer loses it more and more, Bacon sort of encourages it. iW: There have been a number of successful British films about gay artists, Carravagio, Joe Orton, Carrington and now Francis Bacon. Do the British like their gay artists once they're dead? Maybury: The thing about them is that they have amazing lives. It is almost a cliche, but it's only a cliche 'cause it's a truism. These people have all had extraordinary lives, Bacon in particular. This [film] is only a little bit. The rest is even more amazing. Ten years before George died, Bacon's previous lover died on the eve of his retrospective at the Tate Gallery. iW: What has the British reaction been to your unorthodox portrayal of Britain's most famous 20th Century artist? Maybury: Mostly fantastic. But there's enough bad reviews to keep the controversy going. You know it's not for everyone really. But it's like number 4 in the box office, which is above "Armageddon" and "The Horse Whisperer." For me, it's astonishing. iW: What about the "gay press?" I can imagine the queer thought-police not being very excited about the visceral nature of their relationship. Maybury: In Los Angeles, I showed it at Outfest and the California gay press were very, 'Why this very negative image of gay people?' Well, number one, this is a true story. And two, I don't buy into this positive imaging of gays nonsense. It's like I've lost so many friends to AIDS in the last 10 years; what have I got to be happy about? And I'm not a steroid muscle-mary or disco bunny. I have horrible depressions, which aren't about my sexuality. I'm thrilled to be a faggot. It's the best thing that ever happened to me. I actually find it offensive, that kind of politically correct nonsense. iW: What about the British gay community? Do they claim Francis Bacon as "one of their own?" Maybury: I don't think they have, 'cause in a way he's a bit too high brow. They're more into Kylie Minogue. It's interesting with Hockney, because he's only really become acceptable to the gay community when his work is sanitized and evened out. I think Bacon is too heavy for a lot of queens' taste. iW: In the press kit you say that, "maybe we shouldn't meet our idols." So we won't be disappointed, did you ever meet Bacon? Maybury: No, but I saw him once. I was terrified. I was 18 and at a party. In a weird kind of way, I've met him now through the research. I've been on this film for 4 years. iW: Were you disappointed with who you found? Maybury: I think I like him more now. Even though he's kind of an evil, old queen, I understand him.
Chances are, when asked this question you will settle on at least one of the two famous British greats by the name of Francis Bacon. The first one is a philosopher of the 16th century, proponent, among other things, of the empirical method (study based on observation) in scientific inquiry in a time when Galileo had to retract, in front of the Inquisition, that the Earth revolve around the Sun. A TimeLine Violent Emotions
But, in case you want a final word from Francis Bacon, David Sylvester is bringing you one -- so here's the late Francis Bacon, honest (supposedly - he has been known to stray from the truth once or twice) but evasive:
Copyright © 1999, The Detroit News.
Movie Club Bakersfield.com Love Is The Devil: Not rated Subtitled "Study for a Portrait of Francis Bacon," Maybury's film is another that reduces an artist's life to a camp soap opera, in which the central figure's so-called "genius" is a tormented talent that pushes and pulls him, with the results being both art and some horrendously bad
behaviour.
Maybury's approach to his material will seem revolutionary only to those who haven't seen -- or can't remember -- such Russell films as "Savage Messiah," "Mahler," "Lisztomania" and "The Music Lovers." In fact, "Love Is the Devil" works as a contrasting counterpart to "The Music Lovers," the 1971 film that depicted Tchaikovsky (Richard Chamberlain, no less) in a film-length frenzy over his homosexuality, stricken with guilt. In "Love Is the Devil," Francis Bacon (1909-1992) is in no less of a frenzy, but his is less self-punishing -- or so it seems. He inflicts pain on others, instead, and the undeclared but obvious message behind the film is that he does this because he's gay. Derek Jacobi plays the man as a person who brought even less heart to his relationships than he did to his art, but who found a place for negative passion in both. That quality brought some acclaim to the brutal and violent images that he committed to his canvases and, as in the case of most successes, it also left him with the feeling that he was right about every decision that he made. Validated by his work, he had an answer for everything and everyone -- and it was usually curt and cruel. Hanging out with his bitchy pseudo-friends at London's Colony Room in the late '60s and early '70s, the time frame for the film, Bacon was the self-proclaimed king of the vipers. His most convenient victim was his lover and muse, George Dyer (Daniel Craig), a small-time, blue-collar crook who would make his latest suicide attempt -- a regular occurrence that Bacon snidely pooh-poohed -- on the night that the great artist was enjoying a triumphant retrospective of his work as "the greatest living painter." It is 1971, and Bacon is the center of attention at the Grand Palais in Paris. Dyer isn't with him. He's cowering in a Parisian lavatory. That's how the film opens, flashing back to their relationship. When he isn't hanging out with his shallow friends or casually maligning the masochistic Dyer, Bacon can be seen primping narcissistically, brushing his teeth with bleach, dying his hair and applying makeup that makes him look less like a sexual predator than a ventriloquist's dummy. All of which makes you wonder about Dyer's sexual predilections, rather than Bacon's. Chicago Sun-Times review 'Love is the Devil'
It's 1964, and luckless thief George Dyer (Daniel Craig) is attempting to burgle an upscale townhouse. Instead, he crashes through a skylight and into a room full of hypnotic and dreadful images of head-on collisions of deformed flesh sketched in agonizing detail, from skewed perspectives, using brilliantly alien color combinations.
It's the studio of artist Francis Bacon (Derek Jacobi), "England's greatest living painter," who will make Dyer both his muse and his lover, rendering his image effectively immortal... even as Dyer himself sinks inexorably into a cross-addicted downward spiral, unable to keep up with the intellectual and emotional demands of membership in Bacon's upper-class demi-monde.
Dead since 1992, Bacon is probably best known for his horrific use of "found" images such as film stills, photographs of bodies in motion and paintings, including his screaming, chairbound Velasquez Pope. Fascinated with decay and disruption, Bacon would appropriate, then violently deconstruct, the bodies of his subjects from the inside out -- with much the same violent insight that Maybury brings to Bacon and Dyer's doomed relationship.
A masochist, Bacon let Dyer abuse him, but only in private, and only for his own pleasure. In public, Bacon took control -- "mastering" Dyer by virtue of his class, his money, his education, his forceful personality, his vicious tongue.
Forbidden to include any of Bacon's paintings in the film, Maybury was forced to imply the artist's world view through careful use of lighting and composition instead -- "using celluloid," as he puts it, "the way Bacon used paint." The result is a claustrophobic atmosphere of constant, restless nastiness -- a gleefully gross phantasmagoria of nicotine-stained, unhealthy-looking English freaks.
"On the other hand, we rather like people to be bad on our behalf, don't we? So there's a slightly sadistic rooting on our part for Francis to be a complete pig. Secretly, we all know Bacon's as much a victim as Dyer, though in a more complex way. So it's a bit like the mean-mouthed people in the Colony Room [an artist's bar Bacon hung around in]: if they didn't like you, on some level, they wouldn't go to the trouble of being so vile."
And by those standards, I suggest, Maybury must love his audience.
Bacon & Bataille by Peter Jones
Introduction In recent years critical attention has been focused on the hitherto neglected work, at least in Anglo-Saxon academic circles, of the renegade Surrealist Georges Bataille (1897-1962). In 1990, Stoekl noted that:
Much of the attention to Bataille’s work has been in relation to literature and critical theory, especially French post-structuralist thought, notably that of Derrida and Foucault. However, today “Bataille is no longer simply a footnote at best in the works of other writers, but a major theorist in his own right, whose concerns ran a gamut of disciplines such as literature, sociology, and philosophy. In the light of this recent interest in Bataille, it is timely to consider his influence on art practice. Bataille’s extensive writings on art (inseparable from his other concerns) are well known, e.g., his work on Goya, Manet, and Surrealism as well as Prehistoric and Primitive art. But Bataille’s influence on art practice has been little explored until late. A 1991 French exhibition3 based on Bataille’s last text, The Tears of Eros (1961), a combined illustrated history of eroticism and painting, traced Bataillean themes in the art of his time and ours. The exhibition featured work by such luminaries as Pablo Picasso and Alberto Giacometti, who were among Bataille’s close friends and collaborators. With this paper I want to redress the relative neglect of Bataille’s influence on art practice by looking at the work of an artist considered by many to be one of the most important painters of the 20th century, Francis Bacon (1909-1992). Bataille was familiar with Bacon’s work, regarding the painter as “among the most important of his generation.” Bacon’s work was featured in the 1991 French exhibition. Although Bacon was often reticent about his influences and sources, they were extensive and highly diverse, ranging from Greek tragedy to Velazquez, from T.S. Eliot to Eisenstein. Bacon’s voracity for source material is well known. He stated: “I’ve looked at everything,” adding, “I’m like a grinding machine. Everything I’ve seen has gone in and been ground up very fine.” In this paper I shall argue that Bataille was part of the grist for Bacon’s mill. In linking Bataille with Bacon, I also want to attempt to answer Dawn Ades’ call for the “closer examination” of the links between the two, and lay some of the groundwork for a more varied and richer reading of Bacon’s work. Surveying the literature on Bacon, one finds that much of the analysis is confined to seeing his painting as “reflecting” the horrors of the 20th century. Such analysis is often couched in a quasi-existentialism. An example of this is Grey Gowrie’s statement: “Francis Bacon has, more than any other painter, provided the age with an image, in Ezra Pound’s phrase, of its ‘accelerated grimace’. This (dominant) reading arguably results in the closure of Bacon’s work. In contrast, linking Bacon with Bataille reveals an artist concerned with a much wider range of themes. I will discuss the ties, affinities, and parallels between Bataille and Bacon, arguing that they not only shared similar attitudes, concerns, and preoccupations, but that Bataille was an influence on Bacon and that one can read Bataillean themes in his work. It is not my intention to suggest that Bacon directly illustrated Bataille, but that Bataille seriously informs Bacon’s art. The structure of this paper is as follows: first, socio-historical/cultural links between Bacon and Bataille will be established. Second, a summary of Bataille’s ideas pertinent to the discussion will be given, to assist in the exposition of the relation between the writer and painter. This is followed by a discussion of the affinities and parallels between the two and Bataillean themes in the work of Bacon.
Bacon, Bataille and Surrealism Here I want to establish the socio-historical/cultural link between Bacon and Bataille. I shall discuss it in relation to Surrealist discourse, common ground for both Bacon and Bataille. Bacon first came into contact with Surrealism, most notably in the form of Picasso’s series of biomorphic bathers, during his two year stay in Paris during the late 1920s. Bacon saw what is often regarded as Picasso’s quasi-Surrealist work at the Rosenberg galleries in 1928. The Picasso show marked a turning point in Bacon’s life. He recalled: “That’s when I first thought about painting,” adding “I was very much influenced by Picasso … I saw that exhibition at the end of the twenties. It had a huge effect on me.” The influence of Picasso’s biomorphic figures can be seen in protagonists of Bacon’s triptych Three Studies for Figures at the Base of a Crucifixion (1944). Bacon’s exposure to full-blooded Surrealism came with the 1936 International Surrealist Exhibition, organized by Herbert Read and Roland Penrose in London. The importance of this exhibition in regard to the introduction of Surrealism into British art discourses must be stressed. As Davis notes: the exhibition “provided the introduction on a large scale of continental Surrealism to the British Isles.” Despite a few exceptions such as Max Ernst, “Surrealism as a movement had never been witnessed in England before the International Exhibition of 1936.” Davis argues that the exhibition was “a liberating conceptual experience” for the young Bacon. Especially in terms of the willingness of exhibiting artists such as Hans Bellmer and Salvador Dali to “dislocate, distort and disfigure the figure or to invent grotesque biomorphic entities to supplant the human presence.” At the time Bacon’s work was considered by some critics as proto-surreal. It was viewed for possible inclusion in the London exhibition, but it was judged “insufficiently surreal” by Read and Penrose. Surrealism influenced Bacon in other ways. Bacon’s emphasis on the role of the unconscious, chance and accident in his art production has affinities with Surrealism, especially the Surrealist technique of automatism. Bacon stated: “I hope that chance and accident will work for me. I always think of myself not so much as a painter but as a medium for accident and chance.” He goes on: “the best things are likely to happen when the artist is out of control, conjuring new visions of reality from his subconscious.”reply to David Sylvester’s question as to the origins of this, Bacon answered, “those things come through from Surrealism.” The influence of Surrealism on Bacon is also apparent from his early use of an umbrella motif, a signifier of Surrealism ever since Lautréamont, as in Figure Study II (1945-46) and Painting (1946). We might also note Bacon’s interest in and extensive use of diverse photographic images as another link to the Surrealist discourse. Krauss argues that photography “is the great production of the movement.” Bacon states: “I find that photographs are very much more interesting than either abstract or figurative painting. I’ve always been haunted by them.” Although the influence of Surrealism on early Bacon is evident, his relationship to it was, as he himself remarked, “a little complicated.” While never showing any systematic commitment to Surrealist ideology, Bacon was interested in Surrealism’s iconoclastic intent. He remarked: “I’ve been influenced by what the movement represented in terms of revolt against the establishment, in politics, religion and the arts.” But it was Surrealism’s theoretical and literary aspects rather than Surrealist painting that really interested Bacon. He stated:
Bacon then, was not only conversant with (and assimilated) aspects of Surrealist art practice, but, more importantly, its theoretical and literary works. It is Bacon’s interest in the theoretical and textual productions of Surrealism that brings us to Bataille and Documents. Bataille was never really a card-carrying Surrealist. He worked on the margins of the movement in the early 1920s. By 1929, after various schisms within the Surrealist movement, he became the de facto leader of dissident and ex-Surrealists. This group included André Masson, Michel Leiris, Antonin Artaud and Raymond Queneau. Its locus was a glossy arts review called Documents (1929-30). Bataille was its editor-in-chief. A typical issue of Documents consisted of
The heterogeneous content and lay-out of the journal, which adopted the principle of collage, isolating, mixing and juxtaposing disparate images and texts, was a familiar Surrealist device. It is a strategy designed to subvert conventional hierarchies, categories and identities, and to produce strangeness and incongruity. Parallels can be seen between the type and layout of illustrations in Documents and Bacon’s own disparate collection of visual sources. Like those of Documents, Bacon’s images came from high art, newspapers, popular culture, history and science books, with the emphasis on the extreme and unusual. Peppiatt records that Bacon’s collection, pinned up in his studio in collage form, included among other things, images of “Goebbels, Velazquez’s Portrait of Innocent X, hippopotamuses, Christ Carrying the Cross by Grünewald, a man with a monkey and a crowd fleeing during the Russian Revolution.” Ades records that “Bacon possessed copies of Documents, and has talked specifically about the effect some of the illustrations reproduced in them had upon him, notably those of slaughterhouses.” However, the important thing for Bacon was the context of these images. As Ades notes, “It was not just the illustrations, but the whole context of ideas in which these illustrations were situated, that must have touched Bacon.” Despite being conceived as a collective endeavour and art review, albeit an unorthodox one, Documents became a vehicle for Bataille’s views. One of the journal’s co-founders complained: “The title you have chosen for this journal is hardly justified except in the sense that it gives us “Documents” on your state of mind.” An example of this is Bataille’s polemic against Breton’s movement. Bataille accused it of selling out to the art market and of “Icarian reflexes” with respect to all that is base, undesirable and excremental in society. For Bataille, all that is “base” had to be acknowledged and explored. In contrast to Breton’s idealism, for Bataille it is impossible to behave “other than a pig who rummages in manure and mud uprooting everything with his snout.” Through Documents, then, Bacon would have been fairly conversant with much of Bataille’s thought. Bacon’s awareness of Bataille’s work could also have been engendered or stimulated by a number of personal relationships. I am suggesting that Bacon was possibly made aware of Bataille’s work or had his knowledge of it argumented through his long and close friendships with Michel Leiris, Alberto Giacometti and Isabel Rawsthorne, all of whom knew Bataille. In 1924 Michel Leiris thought of Bataille as a kindred spirit. Leiris was associated with the Surrealist movement until the schisms of 1929, when he became part of the group of dissident Surrealists who centered around Bataille and Documents. Leiris became Bataille’s co-editor and a regular contributor. Later, Leiris, with Bataille and others, formed the College of Sociology (1937-39), which aimed to recover and study forms of the sacred in everyday life in the light of the Enlightenment and capitalist rationalization of the world. Leiris continued to associate with Bataille until the latter’s death in 1962. Bacon met Leiris in Paris in the 1960s, forming a close and long-standing friendship, painting several portraits of him such as Study for Portrait of Michel Leiris (1978), and illustrating Leiris’s work on bullfighting. One of Leiris’s texts for Documents, “Picasso’s Recent Canvases,” discussed the artist’s biomorphic bathers which so impressed Bacon. Both thought highly of Picasso and Giacometti, especially for their distortion of human forms. Bacon’s knowledge and admiration of Leiris and his work is clear. Talking in 1992, just before his death, Bacon stated:
Leiris in turn admired his art and has written on it extensively. Leiris regarded Bacon’s paintings as realist, representing “the human condition as it truly and peculiarly is today: man dispossessed of any durable paradise.” Bacon shared Leiris’s anti-idealism: “I remember looking at a dog-shit on the pavement … this is what life is like.” Alberto Giacometti was also part of the group of disaffected Surrealists that formed around Bataille and Documents. His work was featured in Documents. Leiris and Bataille both wrote on it, attracted by Giacometti’s use of Primitive art in such work as Spoon Women (1927), reflecting their anti-Western, ethnographic concerns. The significance of Bataille and Documents for Giacometti needs to be stressed. Bataille’s predilection for erotic and violent fantasies corresponded with Giacometti’s own, materialized in Woman With Her Throat Cut (1932). Giacometti associated with Bataille for many years, in 1947 illustrating Bataille’s Journal de Dianus (The Catechism of Dianus). As for Documents, Krauss notes that Giacometti retained a lifelong attachment to it, owning a full-set which he “carefully guarded during his entire lifetime.” The importance of Giacometti vis-à-vis Bacon must be noted. Ades states:
Bacon named Giacometti as “the greatest living influence on my work.” His main value at this time lay in his commitment to the representation of the human figure in face of the growing hegemony of Abstraction. Giacometti’s concern with the human figure encouraged English figurative artists such as Lucian Freud, Frank Auerbach and of course Bacon. Bacon stated: “Abstraction has never been enough for me. As a human being I’m more interested in the representation of people.” Giacometti’s other value pertained to questions of realism. He warned against exactitude, lifelike representation, “because on one hand it would seem too real or too great an illusion of the real, and then one would only be conscious of its immobility.” Too great a realism, then, tends to negate any sense of life in the figure. A necessary alteration or rather “distortion” or “injury” must be practiced to capture it. Bacon has talked in similar terms:
Bacon’s distortion of the human form brings us to Bataille, as shall later become evident. Finally, Bacon’s awareness of Bataille’s work could also have been augmented by his close relationship with the avant-garde groupie, Isabel Rawsthorne. In the 1930s Rawsthorne moved in Parisian avant-garde circles, being a highly sought after model and a mistress of, among others, Giacometti and Balthus. Bacon met Rawsthorne in Post-War London. According to Farson, he admired her for her intellect as well as her looks, which he painted in a series of portraits, the most notable perhaps being Portrait of Isabel Rawsthorne Standing in a Street in Soho (1967). In an interview Bacon names her as Bataille’s girlfriend. One can assume that Rawsthorne was au fait with Bataille’s work. Considering then, Bacon’s close, long term friendships, particularly with Leiris and Giacometti, and their mutual interests and similar preoccupations, it is highly probable that Bacon discussed Bataille with them. Fletcher records that Giacometti was “a compelling conversationalist … [who] avidly debated avant-garde ideas of art, literature and philosophy.” Bacon may have obtained his copies of Documents from them. I now want to turn to the affinities and parallels between Bacon and Bataille and the Bataillean themes in Bacon. They are readily discernible in his work. The affinities, parallels and themes will be discussed as separate topics, each contextualized by the relevant ideas of Bataille. However, their intertextuality must be stressed. Their formal compartmentalization is to facilitate the exposition of a complex, shifting set of discourses, which generally center around the body.
The Body For Bataille, the body, as a privileged site of order in bourgeois society, is a prime target. Bataille wrote: “It is still possible to take it out on the human body.” Contra the ordered body with its ideal form, the basis of orthodox notions of beauty and aesthetics since classical times and idealist notions of autonomy, unity and rational control, Bataille posits the “disordered body” marked by difference and physiological chaos. Where, according to Bataille,
Bataille’s disordered body is not just part of an anti-idealist/anti-humanist project. It also constitutes an heterogeneous element that, along with “otherness,” the unconscious and base/abject matter resists “the establishment of the homogeneity of the world.” For Bataille, the aim of Western philosophical, scientific, religious, social, economic, political and cultural discourses is the classification of all things, their reduction to productive utility and the assimilation of all differences. As he said, to put “a mathematical frock coat” on the universe. Anything that cannot be assimilated is excluded by these discourses. As Weiss notes: “The history of Western ontotheological tradition is the history of the disavowal of chaos, matter, the formless, the body proper” (my italics). Bataille argues for the “return of the repressed.” In my discussion of the Bataillean body, I shall draw on Mikhail Bakhtin’s concept of the “grotesque body,” used by him in his analysis of the representation of the body in the work of Rabelais. For Bakhtin, a new mode of representing the body came into being from the 15th century, with the rise of classicism and humanism, marking the emergence of what was consequently termed the classical, naturalist or modern body. According to Bakhtin, this discourse
This body corresponds to the body as represented by the discourses which aim for “the homogeneity of the world.” In contrast, Bakhtin posits the grotesque body which, as Taylor notes, offers a concise description of the Bataillean body. I want to extend it to the Baconian body. Bakhtin writes:
Bataille’s disorganized body, intertextual with the world, is exemplified by a passage in his pornographic novel, The Story of the Eye (1928):
That passage could serve as a description of scenes in Bacon’s work in which figures violently couple on beds, merging together. They defecate, vomit and are splashed with blood and semen. As Lands notes: [Bacon’s] favorite images were of men screaming, naked bodies, interlocked in throes that looked more like agony than bliss, figures sitting on toilets or vomiting in washbasins. See Triptych-May-June (1973), in which Bacon depicts the circumstances of his lover’s (George Dyer) death. Here Bacon reveals another (the ultimate) heterogeneous element—death. The Baconian body is an “open text.” The ideal of the body as an impenetrable façade, separate from the world, is countered by figures punctured by nails and syringes. In the Baconian body, the body’s boundaries are disrupted, violated. It is incomplete and fluid, transgressing its limits, leaching into others and the surrounding pictorial space. For Leiris, it is “on the point of over flowing or in a state of liquefaction,” as in Triptych-August (1972). The Baconian body corresponds to the Bataillean body, and as such constitutes a heterogeneous and hence transgressive element. As Kuspit argues: “It is too indecorous to belong to any reasonable order of things, too subjective and disorderly with its own instinctive energy to be brought under control.” It is also heterogeneous in another way, as it is often the site of homosexuality and sodomy, as in Two Figures (1953). As Weiss notes: “Sodomy … is an unproductive act, a wasteful expenditure of energy … whereby ‘natural’ sexual differentiation is denied in an act of sexual indifferentiation.” Its value is that it contests the system, the “natural” order of things. Bataille took Breton’s Surrealists to task over their timidity in this area in relation to the Marquis de Sade’s work. Breton’s homophobia is well documented. Bataille argued that sodomy was central to Sade’s work, “being emblematic of the libertine’s struggle against the natural order.” Bataille viewed sexuality in terms of a particular concept of eroticism, a form of non-productive expenditure—a modality of the heterogeneous. As homosexuality, in particular sodomy, constitutes a wasteful, unproductive act, it is especially erotic. As opposed to socially sanctioned sexual relations whose aim is reproduction, under the auspices of reason, homosexuality is “a perverse sexual activity.” The value of eroticism is that it is transgressive, rupturing social boundaries and norms. As Barthes notes: “the transgression of values … is the avowed principle of eroticism.” Eroticism for Bataille is linked to jouissance, “which is always designated as loss of self-control … [It] proceeds by breaking up a body’s unity, literally dislocating it,” releasing the subject momentarily from the tyranny of reason. He writes: “Anything that suggests erotic excess always implies disorder.” Bacon’s sodomizing, disordered bodies in a state of jouissance, are, as Leiris notes, “directly linked to eroticism, indeed rooted in it.” The Baconian body is transgressive in other ways. In the context of traditional art/aesthetic discourses, it challenges the normative codes of representation. According to Forge, Bacon’s work violated “every taboo that existed in English painting.” For example, Bacon often represented figures in the fetal position, the stance for defecation which as Davis notes, is the “extreme antithesis of traditional, classical poses of erect subjects.” Bacon was fully aware of the transgressive nature of his representations. He stated: “images can shatter the old order leaving nothing the same as before.” There is arguably a heterological aspect to Bacon’s style, in which it evades the orthodox and oppositional categories of abstract and figurative painting. Bacon regarded his work as a “tightrope walk between what is called figurative painting and abstraction.” Bacon wished to avoid the figurative because of its narrative connotations, and abstraction because it is merely “aesthetic, a fashion.” His work not only evades, but also disturbs the boundaries of the two categories of painting. Deleuze has coined the term “figural” in an attempt to categorize it. The blurring of boundaries and evasion of form has parallels in the medium Bacon used. He commented that oil painting “is such a fluid and curious medium. It breeds another form that the form you’re making can take.” In challenging normative codes of representation, the Baconian body challenges our narcissistic self-image. Bacon’s figures seemed to have regressed to a pre-“mirror-phase,” before the recognition of the self, with the body imagined as a unified totality, as in Portrait of George Dyer in a Mirror (1968). Like Bataille (and Lacan), Bacon shows the illusionary nature of our mastery over our bodies and challenges the discourses of the unitary and homogeneous Self. Russell’s remarks on Bacon’s work are pertinent here: What painting had never shown before is the disintegration of the social being which takes place when one is alone in a room which has no looking glass. We may feel at such times that the accepted hierarchy of our features is collapsing, and that we are by turns all teeth, all eye, all ear, all nose. The most striking feature of Bacon’s representation of the human form is its distortion. For Bacon, it is an unavoidable practice, part of a pictorial struggle against figuration, and central to his quest for a more realistic representation of reality. Leiris uses the word décalage, which can be translated as an “unavoidable alteration or displacement,” to describe Bacon’s practice. Distortion or injury of the human form is the very basis of art for Bataille. In his discussion on the Prehistoric art of the famous Lascaux caves, Bataille points to the unequal mode of representation of animals and men: As against most of the Lascaux animal figures, rather than a faithful, naturalistic imitation of appearance, … [in man] we have only the naïve and intelligible schema of form … awkward to the point of extreme and similar to children’s simplifications.“ This crude and distorting art has been reserved for the human figure.” Bataille concludes that it constitutes willful vandalism of the human form. This signifies a sadistic impulse behind art. Bataille writes: “Art … proceeds … by successive destructions. Thus insofar as it liberates instincts, these are sadistic.” Behind Bataille’s theorizing is an anti-humanist, anti-idealist project. Such art is essentially a record of automutilation. Citing Van Gogh’s severance of his ear, automutilation for Bataille is, as Hollier notes, “the pictorial act, par excellence. For painting is nothing if it does not attack the architecture of the human body.” Hollier states that “Bataille will always define painting as the defacement of the human figure.” This constitutes a refusal of self-duplication. In strict opposition to the classical/humanist idea that the narcissistic assertion of the human form was the original pictorial urge, Bataille sees modern art linked to Prehistoric art by this sadistic impulse: “Our modern art is … fashioned round a core of inner violence.” The modern art that Bataille respected was “art that rather quickly presented a process of … destruction, which has been no less painful to most people than would have been the sight of the … destruction of a cadaver.” There are parallels here with Bacon’s distortion of the human form. This is possibly what Bataille admired most in Bacon’s art. Bacon’s struggle against figuration and his creative process constitute a record of willful (auto)vandalism. He stated: “I have deliberately tried to twist myself … my paintings are … a record of this distortion.” Man-Animal Bataille’s interest in heterogeneous elements—all that repels, his heterology defined as “the science of what is completely other” — is not only an exploration of elements which resist “the homogeneity of the world.” It also constitutes a project to strip away ideological screens or veils, to expose the (bourgeois) hypocrisies which try to conceal and make palatable a basically meaningless and squalid existence. As a result, Bataille, as Breton commented, considered “the vilest, most discouraging and corrupted things in the world.” One such thing was the slaughterhouse. In a Documents text entitled “Abattoir,” Bataille links slaughterhouses and religion to tell us what we cannot stand the sight of, our proximity to animals, our dirty selves, exposing the hypocrisy and dishonesty laying at the heart of bourgeois society. Bataille writes: The slaughterhouse relates to religion in the sense that temples of times past … had two purposes, serving simultaneously for prayers and for slaughter. Nowadays the slaughterhouse is cursed and quarantined like a boat with cholera aboard … The victims of this curse are neither the butchers nor the animals, but those fine folk who have reached the point of not being able to stand their own unseemliness. Bacon held a similar view: “Well, of course we are all meat, we are all potential carcasses.” Meat is the common ground between men and animals. Bacon makes an explicit connection between sites of religious sacrifice, in this case the Crucifixion, a recurrent theme in his work, and slaughterhouses. In response to a series of slaughterhouse photographs, possibly those taken by Eli Lotar of the abattoir at La Villette, Paris, which accompanied Bataille’s “Abattoir” text, Bacon states: I’ve always been very moved by pictures about slaughterhouses and meat, and to me they belong very much to the whole thing of the Crucifixion. There’ve been extraordinary photographs which have been done of animals just being taken up before they were slaughtered; and of the smell of death … which to me is very, very, near this whole thing of the Crucifixion. Bacon also shared Bataille’s distaste for the hypocrisy of averting one’s eyes from the “baser” aspects of life: When you go into a butcher’s shop and see how beautiful meat can be and then you think about it, you can think of the whole horror of life, of one thing living off another. It’s like all those stupid things that are said about bull-fighting. People will eat meat and then complain about bull-fighting covered with furs. Bacon had a similar project to Bataille’s, in his aim to tear down ideological screens and expose the baser aspects of life. Bacon stated: “We nearly always live through screens—a screened existence … [With my work] I have from time to time been able to clear away one or two screens.” For Leiris, Bacon’s work is “demystified art, cleansed both of its religious halo and its moral dimension.” In Bacon’s art, according to Russell, “certain facts about human nature have been dragged round the dark side of reality and brought back into the light.” The intertextuality of man, meat, animals, slaughterhouse and Crucifixion is evident in Bacon’s work. In the 1946 and 1971 versions of Painting, the figure is framed by a carcass, as if in a matrix of meat. The semi-circular rail in the foreground links the figure to the meat, recalling Bacon’s statement “we are all meat.” In the backgrounds of these works, a hung, spread carcass is depicted, evoking a Crucifixion. In the right-hand panel of Bacon’s Three Studies for a Crucifixion (1962), the flesh and exposed rib cage and vertebrae of the inverted figure/carcass make the connections explicit. The stress on man’s proximity to animals was part of Bataille’s continual attack on man’s idealism. Animality constitutes an heterogeneous element. Bataille writes: We cling tenaciously to the dissimilarities that set us apart from the animal. Anything that recalls the animality subsisting in us, appalls us unfailingly and, quite like a prohibition, makes us recoil in horror. Bataille’s intention was to release the repressed beast in man. He wrote: “There is in each man, an animal shut up in a prison like a convict … if one cracks the [prison] door the animal tears out like a convict finding an exit.” Although this should not be seen as the “lowering” of man to beast, Bataille’s (proto-deconstructionalist) intention was to subvert hierarchies and traditional oppositional terms, where one term is privileged over another, e.g., high/low, man/animal. But without replacing them with new ones or resolving them into new unities. A deliberate dwelling upon man’s proximity to animals is a major theme in Bacon’s work, comparable to Bataille’s intention to decenter “noble” man, while avoiding privileging man or beast. Bacon’s similar interest in man and animals is clear. Peppiatt noted that Bacon’s photographic sources, “although varied, they are mostly of human beings and animals.” Bacon states: “I look at animal photographs all the time … animal movement and human movement are continually linked in my imagery.” Russell records that during a trip to Africa in the early 1950s, Bacon was fascinated with the behavior of wild animals because of “the analogies which it suggested with human behavior.” Figures in Bacon’s work often exhibit animal features, such as the simian face of the reclining figure in Study of Nude with Figure in a Mirror (1969). As Bakhtin notes, a feature of the grotesque body is “the combination of human and animal traits. Deleuze argues that: Instead of asserting formal correspondences, Bacon’s painting creates a zone of imperceptibility, of ambiguity between man and animal … the stress is on the qualities common to both man and animal. Furthermore Bacon’s figures and animals share common characteristics and environments, perched on frames in cage-like interiors in Study for Crouching Nude (1952) and Chimpanzee (1955) or crouched in open grasslands as in Man Kneeling in Grass (1952) and Study of a Baboon (1953) with its wide open jaw suggesting a link with the screaming Popes which preceded it. The decentering of “noble” man and the subversive foregrounding of animality can be read from Man with Dog (1953). In it man’s top “noble” half, his head, locus of reason and expression is sharply obliterated. All that remains of the man is a hazy outline of legs and feet. The figure is linked by a chain to a somewhat blurred dog in the foreground. The chain suggests an unbreakable bond between the two. The man-animal theme is also evident when we examine perhaps the most important part of the Bataillean/Baconian body, the mouth.
The Mouth Bakhtin writes: “The most important of all human features for the grotesque [body] is the mouth. It dominates all else.” One entry in the Documents team’s parodic Critical Dictionary is Bataille’s “La Bouche.” It is accompanied by Jacques-André Boiffard’s photograph Bouche (Mouth), of a wide open mouth, wet with saliva. It functions to add further layers of suggestiveness to Bataille’s text, hence aiding the dictionary’s subversive aim of displacing words from any absolute meaning. In his text Bataille discusses the fact that through the mouth man’s greatest experiences of pleasure or pain are physiologically expressed, thus revealing our proximity to animals. The text is an attack on man’s “idealist deception” of his supposed separateness from animals. The mouth, normally the locus for the emission of language heralding the human, serves in extreme moments as an orifice emitting bestial cries. Bataille wrote: On important occasions human life is still bestially concentrated in the mouth: rage makes men grind their teeth, while terror and atrocious suffering turn the mouth into an organ of rending screams. On this subject it is easy to observe that the overwhelmed individual throws back his head while frenetically stretching his neck in such a way that the mouth becomes, as much as possible, an extension of the spinal column, in other words, in the position it normally occupies in the constitution of animals. In his analysis of Bacon, Davis argues that the open mouth “becomes an obsession in his work in the 40s and early 50s.”94 Indeed, in much of Bacon’s work from this period, the mouth stretched in a cry or scream was often the most prominent feature of his heads and figures. As Davis notes, “the theme or subject of the scream, which entered Bacon’s imagery with the Tate painting of 1944, dominated his work for the next ten years.” Head I (1948), Head VI (1949) and the famous Study after Velazquez’ s Portrait of Pope Innocent X (1953) are prominent examples. Bacon has confirmed some of the sources for this work, for example, the screaming nanny from the Odessa steps sequence of Eisenstein’s Battleship Potemkin (1925). He has also spoken of his fascination with a “book which had beautiful hand-colored plates of diseases of the mouth; they fascinated me, I was obsessed by them.” I want to suggest another source: Bataille’s aforementioned text “La Bouche” and its accompanying photograph, Bouche. Going further, some of the features of Bacon’s heads and figures, the open mouths, the animal-like extended necks and the concern with man’s animal characteristics, also correspond to Bataille’s text. In Head I (1948), the head is thrown back, as in a spasm of pain or pleasure. The mouth is open and nearly vertical, suggesting Bataille’s extension of the spinal column. The neck and cheek bulge evoking the moment before the eruption of a bestial cry. In Kuspit’s reading of Bacon’s screaming mouth, we can see its relation to Bataille. He writes: Bacon’s great achievement with the screaming mouth is to turn it from being an abstract, formal device—an emblem of suffering—accompanying tragic scenes … to a highly charged concrete space involuntarily ejaculating feeling into the world. [In Bacon’s scream] feeling dominates fact … formal control is released … the sense of an appropriate relationship between the cause of the scream and effect is stretched to breaking point. For Davis, Bacon’s work from the late 40s to the early 50s represents “a stuttering progression from primeval skull to papal portrait.” But the progression is not evolutionary, Bacon reveals the animality present even in the man set highest above his fellow men, Christ’s representative on earth. This is surely in the Bataillean spirit. Krauss writes: In the anatomical geography of Bataille’s thought the vertical axis emblematizes man’s pretensions toward the elevated, the spiritual, the ideal: his claim that the uprightness separating him biologically from the bestial distinguishes him ethically as well. Bataille, of course does not believe this distinction. For him, man’s true nature is “grounded” in the horizontal axis which signifies animality and base material existence. Bataille makes this point with his definition of the big toe as “the most human part of the human body.” It is in direct contact with the dirt of the earth as opposed to the erroneous transcendentalism of the head. In “La Bouche,” Bataille conducts an axial rotation of man, from the vertical to the horizontal. Krauss notes that: [Bataille] contrasts the mouth/eye axis of the human face with the mouth/anus axis of the four-legged animal. The first, linked to man’s verticality and his possession of speech, defines the mouth in terms of man’s expressive powers. The second, a function of the animal’s horizontality, understands the mouth as the leading element in the system of catching … and ingesting prey, for which the anus is the terminal point. But, beyond this simple polarity, to insist that at its greatest moments of pleasure or pain the human mouth’s expression is not spiritual, but animal, is to reorganize the orientation of the human structure and conceptually to rotate the axis of loftiness onto the axis of material existence. The axial rotation of the human form is found in Bacon’s work. In Figure Study II (1946), the figure’s straight, horizontal back suggests the animal axis. Along with screaming mouths and abnormally extended necks, it is also evident in the Furies of Three Studies for Figures at the Base of a Crucifixion (1944). They correspond to Bataille’s definition of man as “a tube with two orifices, anal and buccal.” Finally, Three Studies of the Human Head (1953), can be seen as representing something akin to a sequence of cinematic stills showing the process. First, the extreme condition of the subject, then, the bestial scream and finally, the “fall” to the horizontal, to animality and humanity “proper.” Horror-Abjection Here, I want to draw a parallel between Bataille and Bacon, using Julia Kristeva’s notion of horror-abjection. It is not my intention to suggest that Bacon illustrated Kristeva, although it is possible he was familiar with her work. I want to bring Kristeva to bear on Bacon to suggest a fresh reading of his work and to align it with some of Bataille’s concerns. First, I will briefly outline Kristeva’s notion of horror-abjection. According to Kristeva, the construction of a unified, independent subject is founded on the exclusion and disavowal of what is considered by the individual and society to be unclean and disorderly. These are essentially elements of the subject’s corporeal existence. They become the “abject.” There are parallels here with Bataille’s heterogeneous elements. Allied to this process is the delimitation of the “clean and proper” social body. However, as Grosz notes, Kristeva argues that “what is excluded can in fact never be excluded, but hovers at the edges or borders of our existence,” threatening the subject’s precarious unity and identity. “The impossibility of excluding these threatening elements provokes a particular response in the subject: abjection.” The abject demonstrates the subject’s disavowed relations to corporality, to animality and death. Although culturally variable, one category of the abject against which social taboos are erected is bodily fluids and waste. They evoke disgust and horror. The horror results from our inability to accept our materiality and realization of the impossibility of maintaining a hard, fixed distinction between clean and unclean bodies. For Kristeva, religious, moral and rational discourses, along with most of the arts, repress and sublimate the abject and individual’s sense of abjection. As Kristeva puts it: “[the] religious, moral, and ideological codes on which rest the sleep of individuals and the breathing spells of society. Such codes are abjection’s purification and repression.”105 This refusal to confront abjection means that our ability to understand and cope with the abject and horror is diminished. As a result, we live, Kristeva writes, “in times of dreary crisis.” However, for her, avant-garde literature, notably that of Bataille, and by extension all esoteric art forms, can reveal horror, and thus help us to come to terms with it. She writes: “literature may also involve … an unveiling of the abject: an elaboration … a hollowing out of abjection.” Such art does this in two ways. First, by “speaking of horror,” by representing it. As Lechte notes: To face horror, to look at it and thus avoid the lie, is to render it in language or in some symbolic form; it is to utter it, and therefore communicate it, even if this be only to oneself. This is what Bataille aimed to do in such texts as The Story of the Eye, with its emphasis on horror and the abject. Lechte states: “To read Bataille is to be confronted by … horror.” Bataille noted our propensity to flee from the abject, our “bad faith.” He writes: The mainspring of human activity is generally the desire to reach the point farthest from … [that] which is rotten, dirty and impure. This distressing inclination may play a greater part in our assertion of moral principles than our reflexes. Our assertions are no doubt veiled. Great words give positive sense to a negative attitude. Prefiguring Kristeva, for Bataille, the result of this is that abject elements are excluded, but not negated. They are always on the margins, threatening the subject. Bataille continues: “The constant recurrence of abominated elements … exists … in normal conditions.” Again foreshadowing Kristeva, Bataille argues for the unveiling of the abject. So we can attempt to come to terms with it. This is the role of transgressive avant-garde art. It attacks normative signifying practices that are part of society’s masking of abjection. Bataille writes: We must still revive them voluntarily [the abject]—in a way which corresponds precisely to our needs. It is to this purpose that we put the arts: they manage … to arouse in us the highest possible degree of anxiety. The arts—or at least some of the arts—incessantly evoke these derangements, these lacerations, this decline which our entire activity endeavors to avoid. But it is not only what is represented, but perhaps more importantly how it is represented. For Kristeva (and Bataille) avant-garde art, by its radical mode of representation, subverts and disrupts the religious, moral and rational discourses which veil the abject. These discourses are signified by normative codes of representation, such as the discourse of the “ordered body,” that is the clean, sealed and unified body, manifest in classical and naturalist representations of the body. Bacon’s painting can be seen as such an avant-garde art. We have already noted his aim to clear away ideological screens which exclude that which is unseemly. Bacon’s art reveals the abject, confronts horror. For Deleuze, Bacon represents “horror or abjection.” And not only because of what is represented—scenes of horror, bodily fluids, excrement, death, and homosexuality (Kristeva regards sexual difference as a form of the abject)—but also because of how it is represented. As we have noted, Bacon’s style transgressed and disrupted the normative codes of representation in relation to the human form. To quote Forge again, Bacon violated “every taboo that existed in English painting.” Architecture and Corporality Hollier states that Bataille’s work is marked by the use of architectural metaphors. In Bataille’s writing, architecture signifies system and edifice builders, and as such those discourses that aim for the “homogeneity of the world.” According to Hollier, “Architecture under these conditions is the archistructure.” Architecture also means the building of facades which veil unseemly things, heterological elements. Bataille, as Hollier notes, is against architecture. In his text “Architecture,” published in Documents in 1929, Bataille regards architecture as a symbol of a repressive and authoritarian society. He writes: Architecture is the expression of the true nature of society, as physiognomy is the expression of the true nature of individuals …. (But) only society’s ideal nature—that of authoritative command and prohibition—expresses itself in actual architectural constructions. Not only is architecture a symbol of social order and authoritarian hierarchies, but also it imposes them, acting in complicity with society’s ruling class. “Great monuments,” says Bataille, rise up like dams, opposing a logic of majesty and authority to all unquiet elements; it is in the form of cathedrals and palaces that church and state speak to and impose silence upon the crowds. Bataille goes on to argue that the presence of ordered architectural forms in other areas of life, such as art, signifies a desire for authority. Bataille writes: “whenever we find architectural construction … whether it be in physiognomy, dress, music, or painting, we can infer a prevailing taste for … authority.” I want to suggest that Bataille’s idea of architectural form as a repressive structure has parallels in Bacon’s work. Bacon’s isolated figures are set within finitely bounded areas, usually enclosed indoor spaces. In these “rooms,” figures are often placed within skeletal linear cubes. Although in part a formal device for spatial articulation and the enhancement of figures, such cubes also constrain or imprison the figures, serving to bind them to the prison of the canvas. Limbs and protuberances of figures project through the skeletal linear cubes; bodies spill out of them as if attempting to escape confinement, as in Three Studies of Lucian Freud (1969). Bacon’s figures are also sometimes held by tubular frames, with semi-circular rails placed in the foreground of many works, thus confining the figure and excluding the viewer. The brushed vertical lines most evident in the Pope paintings have a similar effect, suggesting prison bars, as in Study for a Crouching Nude (1952) and Study after Velazquez’s Portrait of Pope Innocent X (1953). Much of this relates to Bacon’s early work as a designer of Bauhaus-type furniture. He stated: “The tubes do come from my own metal furniture.” It also relates to Giacometti’s “cage compositions” with their imprisoned figures, such as Palace at 4 a.m. (1932), which Bacon would have seen at the 1936 International Surrealist Exhibition in London. Bacon’s use of the crucifix can also be regarded as the constraint of the figure by an architectural form, like the locked door that is a recurrent motif in his later work. In these works figures attempt to escape from locked rooms, as in Painting (1978). Bacon’s figures are also constrained by the formal elements of the work. The large flat areas of color of the backgrounds are often sharply delimited by circular contours. This is suggestive of an encompassing movement. Deleuze argues: In many paintings, the expanse of color is quite precisely involved in a movement that turns it into a cylinder: it wraps itself around the contour, around the place; it envelops and imprisons the figure. Moreover, a constraining and repressive Bataillean architecture is also suggested by the architectonic nature of the material vehicle of Bacon’s work. Bacon’s paintings, following his wishes, are usually encased in heavy frames and glass. Bacon has referred to this as an “armature.” Kuspit argues: Bacon has for some time insisted that his pictures be hermetically sealed …—finishing them off, packaging them, as it were—shows how determined he is to show the conflict between hysteria and its repression. Bacon’s frequent use of the triptych also suggests containment and repression. In its traditional form, the wings of a triptych close to cover the work. Later in “Architecture,” Bataille goes on to connect human form with architecture in order to denounce the teleological discourses which anthropomorphize architecture and attempt to reduce the formation of man to architectural order, or to put "a mathematical frock coat” on man. That is to rationalize, homogenize and thus imprison man. Bataille writes: [The] mathematical order imposed on stone is really the culmination of the evolution of earthly forms, whose direction is indicated within the biological order by the passage from the simian to the human form, the latter already displaying all the elements of architecture. Man would seem to represent merely an intermediary stage within the morphological development between monkey and building. From the very outset, in any case, the human and architectural orders make common cause, the latter being only the development of the former. Hollier outlines the implications of this: If the prison is a generic form of architecture this is primarily because man’s own form is his first prison. In other words, it is not possible simply to oppose the prison to free the man … the only way for man to escape the architectural chain-gang is to escape his form. That is, man must rebel against his own form, against the human figure. Here the body, especially the skeleton, constitutes a constraining “corporeal architecture.” The idea of man rebelling against his own form is symbolized by Bataille’s mythical figure of Acéphale. Weiss notes that: Acéphale is a contestation of the Platonic body politic, where reason, seated in the head, rules the lower spirited and appetitive forces of the body. It is also a condemnation of the ideal form and perfect proportions of the human figure as a measure of all things, celebrated since the classic age of Greece. Escape here, then, is from the classical/humanist conception of the body as an ordered physical and psychic “architecture.” Represented headless, the violent alteration of the human form in Acéphale signifies the refusal of identification with and adoration of the “ordered body.” Cephalic man is decapitated in an act of automutilation symbolized by Acéphale’s sword. For Bataille, “Man will escape from his head as the condemned man escapes from his prison.” Acéphale is the “pure body, irreducible to idealizing, intellectual operations,” a heterological element. Rebellion against the ordered and repressive human form was central in the emergence of modern painting. For Bataille, classical and academic painting was under the control of architecture. It was, he writes, “characterized by a sort of concealed architectural skeleton,” representing a petrified social order. By contrast, modern painting’s dissonant form and structure are “distinctly at odds with social stability.” Rebellion against the human form is represented by modern painting’s “defacement” of the human figure. Bataille writes: “the path traced by painters opens up toward bestial monstrosity, as if there were no other way of escaping the architectural straitjacket.” There are parallels here with Bacon’s rejection of academic conventions and defacement of the human figure. He was interested in the architecture of the body in order to subvert it. This is exemplified by his passion for X-ray photographs, and for the work of Degas. He stated: I’ve always had a book that’s interested me very much called Positioning in Radiography … showing the positioning of the body for the X-ray photographs to be taken, and also the X-rays themselves. In Degas, Bacon saw art’s ability to show the architecture of the body and its vulnerability to distortion. In a conversation with David Sylvester, Bacon refers to a Degas pastel of a woman bathing: You will find at the very top of the spine that the spine almost comes out of the skin altogether … this gives it such grip and a twist that you’re more conscious of the vulnerability of the rest of the body than if he had drawn the spine naturally up to the neck. He breaks it so that this thing seems to protrude from the flesh. Bacon’s figures seem to be trying to escape the constraining architecture of the body. In numerous works figures are twisted and contorted with the skeleton protruding out of the flesh, exposing the architecture of the body, as in the right-hand panel of Three Studies for a Crucifixion (1962). Bacon could have been aware of Bataille’s idea of the body’s rebellion against its own form, through his relationship with Leiris. Leiris makes an analogy between Bacon’s figures and the mythic Celtic warrior Cuchulain, whose body went into convulsions in the heat of battle, resulting in the contortion of his limbs and features. They were so great, Leiris notes, that Cuchulain “twisted around in his skin so he was literally back to front.” Tauromachy and the Eye For Bataille, the aficionado, tauromachy is a polysemic sign. It signifies: mythology; the sacred; the Mithraic bull cult (the repressed other and one-time serious rival of Christianity); death; sacrifice; slaughterhouses; and heliocentrism with an ambivalent sun. Some of these complex associations were suggested by Bataille in his text “Rotten Sun”: The Mithraic cult of the sun led to a very widespread religious practice: people stripped in a kind of pit that was covered with a wooden scaffold, on which a priest slashed the throat of a bull; thus they were suddenly doused with hot blood, to the accompaniment of the bull’s boisterous struggle and bellowing—a simple way of reaping the moral benefits of the blinding sun. The value of myths for Bataille is that they not only give glimpses of the sacred, but also represent unassimilable elements. Myths cannot be reduced to rational, conceptual schemes. In fact they threaten such discourses. Bataille writes: “the fact that reason denies any valid content in a mythological series is the condition of its most significant value.” Another of tauromachy’s values is that it reveals what is normally repressed in bourgeois society—death. Bataille writes: “Death’s theatrical entrance in the midst of celebration, in the sunshine, seemed somehow obvious, expected, intolerable.” Bacon talked in similar terms about tauromachy, its mythic and mortal aspects, all under the glare of an ambivalent sun: When you have seen one, it remains in your mind forever. It takes you back … to very ancient times—right back to Mycenae. It’s about death. But it’s about death in the sunlight, and for me that does conjure up all kinds of images. I want to align Bacon’s interest in tauromachy with a Bataillean and Surrealist tauromachy/eye discourse. For Bataille, “the eye appeared to me to be definitively linked to bullfighting images.” Bacon began a series of pictures on the theme of tauromachy in the late 1960s. Study for Bullfight No. 1 (1969) is particularly exemplary. He also produced a number of lithographs to illustrate one of Leiris’s books on the subject. In fact much of Bacon’s work can be seen to have connotations of tauromachy. His curved interiors and struggling figures often suggest the corrida. For Deleuze, Bacon’s distorted figures are engaged in “an internalized bullfight.” It is worth noting here that there are also connotations of the man-animal theme. This is perhaps another factor which accounts for Bacon’s interest in the subject. During “the pass,” a point of intimate contact, there is a temporary convergence of or fusion between man and bull, like Deleuze’s zone of indiscernibility between man and animal, symbolizing the momentary unison of man with his animal self. Bacon returned to the theme of tauromachy nearly twenty years later with Painting, Bull (1987). In this work a lone bull with bloodied horns is reflected in a concave mirror. The curved composition suggests the bullfighting arena. Above the bull on the edge of an indistinct form, within a pink smear, is a precisely delineated hole, circled in white. Although ambiguous, perhaps representing a bullet hole or orifice, I think it represents an eye, and relates to the Bataillean and Surrealist obsession with the eye and its enucleation. Bacon’s Painting, Bull was influenced by and perhaps alludes to the chapter “Granero’s Eye” in Bataille’s novel The Story of the Eye, where the matador Granero has his right eye put out by the bull’s horn. Bataille writes: Granero was thrown back by the bull and wedged against the balustrade; the horns struck three times at full speed; at the third blow, one horn plunged into the right eye … men instantly rushed over to haul away Granero’s body, the right eye dangling from the head. The theme of an enucleated or mutilated eye is a feature of many of Bacon’s works. Figures and heads have ocular injuries, eyes missing with bare sockets shown, for example Self Portrait with Injured Eye (1972). The theme of the enucleated or mutilated eye is also evident in other works which Bacon was familiar with and which can be seen as a trope of the Bataillean/Surrealist eye discourse. Bacon often referred to the deep impression made on him by the infamous opening sequence of Buñuel’s Un Chien Andalou (1928), where a razor slices through an opened eye. One might also note here the screaming nanny with her shattered glasses and bleeding right eye in Battleship Potemkin. Both films were admired by Bataille. He refers explicitly to Buñuel’s razor sequence. The theme occurs as a childhood game called “eyes put out” in Leiris’s text L’Âge d’Homme, which Bacon knew and admired. It also occurs in Giacometti’s Point to Eye (1932), where a long, pointed form (a bull’s horn?) threatens the eye of a tiny head. Giacometti’s Suspended Ball (1932), with its crescent form cleaving a sphere, also suggests this theme. Linking Bataille with Bacon, for many one of the most important painters of the 20th century, reveals the importance of Bataille’s influence on art practice. It also engenders a more varied and richer reading of Bacon’s work, countering the closure of it by (the dominant) quasi-existentialist/horror readings. It reveals a more “radical” artist, concerned not only with challenging and transgressing the normative codes of representation, but also the idealist/humanist discourses of the body and the subject. The conjunction of Bataille and Bacon perhaps also enables us to assign a more “positive” role to Bacon’s work. For rather than providing our age with an image of its “accelerated grimace,” Bacon, as Deleuze argues, in the very act of ‘representing’ horror, mutilation, prosthesis, ruin … his figures are indominable through their insistence and presence. He has given a new and immediate power of laughter to the living. Something Bataille would have approved of. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Written and curated by Emmanuel Cooper.
The death of Francis Bacon at the age of 82 in 1992 stands as a significant moment, a turning point, in our understanding not only of the concept of queer, but of how artists felt able to operate if they were to be both true to themselves yet find a measure of acceptance in a society by and large hostile to homosexual expression. Margaret Thatcher, Tory Prime Minister, reflected a popular view when in reference to Francis Bacon she described him as "that artist who paints those horrible pictures." A well known philistine - Thatcher's artistic interests seem to be limited to collecting pretty ceramic figurines - the remark could be read as referring to both Bacon's often violent style of painting and to his usual subject of the interaction between two men, which in Bacon's view was neither affectionate nor relaxed but turbulent and traumatic. In terms of critical writing about his work, Bacon's death signaled the end of the traditional school of politeness, and the start of a new, fresher appraisal. To all intents and purposes Bacon often appeared like a latter day Edwardian gentleman. As a young man he was handsome and despite what is reported to be a heavy social life of drink, he retained (and tinted) his hair and striking looks. Invariably in public Bacon the bachelor was smartly dressed, appearing wealthy, debonair and vaguely aristocratic; he was fond of booze, food, gambling and sex. His success as an artist enabled him to lead a privileged, and despite massive publicity in recent years, a remarkably private life. The media, public and friends conspired with the artist to ensure a veil of secrecy was cast over the stormy events of his life, and on any specific queer reading of his work. Anxiety of Analysis Bacon's death was a significant moment, a turning point, the end of a convention in which respected writers and experts on Bacon's work such as Michel Leris and David Sylvester felt able at last to address major issues around his work and life. Hitherto the life of this highly acclaimed artist was discreetly passed over in favour of the discussion of form, use of colour, historical precedents and such like. On his death the floodwaters, pent up for years, broke, and a spate of obituaries, and biographies were only too ready to give graphic, often explicit details of his life and loves of which there had previously been little more than hints and nods. Discussion of Bacon's life - and death - is important not only because of the queerness of his art in subverting and making the fact of homosexual desire a real if often highly coded presence in art, but because of the often fabulous claims made for his status. In his tribute to Bacon after the artist's death, Grey Gore, later a respected Chairman of the Arts Council, described Bacon as "the greatest living painter and greatest British painter since Turner," a view endorsed by many critics, artists and writers. Nicholas Serota, Director of the Tate Gallery, though more circumspect, was still fulsome in his praise, saying "Bacon was not only the greatest British painter of his generation, but also recognized as one of the outstanding post-war artists." More recently such extravagant praise has become more muted. The catalogue for the latest exhibition of Bacon's oeuvre of works on paper (Tate Gallery, London, February 1999) describes Bacon as "one of the most important painters of the figure in the second half of the twentieth century" -- a far more modest though not unsubstantial claim. Within the art world glowing praise is rarely offered lightly, and seems even more surprising given that in many ways Bacon was an old fashioned and very conventional easel painter. Although Bacon preferred to work on the back of the canvas because he liked its raw, untreated surface (and I also suspect because it carried a frisson of difference), he used the traditional materials and form of the artist, working in oils. His insistence on expensive gilt frames gave the work status, suggested worth and the conventional - all important facets of combining subversion with respectability. Bacon also liked to have his paintings shown under glass, which whether intentional or not, often resulted in the viewer's own reflection being mirrored in the image and thus involved in the action portrayed. Almost as significant as the presentation of Bacon's work was his use of academic composition. Generally he restricted himself to a limited range of colors with black and red predominating (maybe a hang over from his days as an interior designer in the 1930's), with the paint often being used to suggest form as much through line as solid color. The figurative compositions, however widely interpreted, meant that Bacon resisted abstraction, drawing for ideas on artists as diverse as Valesquez, Van Gogh and Picasso, often for their bold, confrontational choice of subject matter. As the artist aged so respect for his work increased. Prices for his paintings rose dramatically, prompting many critics to devote many column inches to his work and his often enigmatic utterances, leaving journalists to focus on his dissolute but exciting life of drinking and gambling rather than his affairs with men. Press attention increased as he approached his 80th birthday. Bacon showed little reluctance to be photographed, invariably appearing in a smart leather bomber jacket and posed, like the phoenix, amongst the piles of detritus in his studio, or in his favourite Soho drinking hole, the Colony Club. Melvyn Bragg's now infamous South Bank Show, broadcast on British television in 1985 did eventually make Bacon's sexual interests clear if viewers were paying attention when the artist pointed out that as far as models went his taste lay in the direction of his own sex. While in later life Bacon generally claimed that his sexuality was public knowledge, and that it was no secret, the press had severe problems dealing with his private/public life; some journalists even managed to come up with conflicting views in the same article. The greatest difficulties have been over the exact nature of Bacon's 'private life,' and the extent to which he had, or had not gone public about his homosexuality, and the 'content' of his art. Caroline Lees, reporting on the beneficiary of Bacon's will, claimed that Bacon "made no secret of his homosexuality," while adding in the same article that "the artist's reluctance to have his personal affairs discussed in public was legendary." She presumably did not see the two statements as contradiction. In a report on his death the Daily Telegram described Bacon dismissively as "the homosexual artist," an identification in terms of sexuality they would never dreamt of running before his death. Homosexuality lay at the heart of the enigma about Bacon. While his sexual preferences were a fact well known within the art world and a small coterie of friends and acquaintances with whom he drank and gambled, it was not placed within the public domain until Bacon was well into his 70s, and even then in such understated ways that would be easy to miss. There seems to be two aspects to this decision. One was Bacon's own contradictory attitude towards talking about his work. "If you talk about it, why paint it," was a favorite diverting device; if that did not seem sufficient, he often presented a fatalistic view, saying "We live, we die, and that is all." The other aspect was Bacon's own attitude towards, and understanding of, his homosexuality. Two of his often told anecdotes were about his childhood and homosexual adventures as a youth in Ireland. Eventually he was banished from his home by his brutish father (who also had him beaten) after being caught dressing in his mother's clothes, and also discovered having sex with the grooms who managed his father's stable. Apart form these melodramatic incidents, Bacon said little in public about his sexuality, and the obituary notices had few direct quotations from the artist on the subject. In his obituary in The Guardian, Lord Gowrie wrote: He told me that he (Bacon) had come to the view that homosexuality was an affliction, that it had turned him, at one point in his life, into a crook. The crookishness, not the sex, was a source of shame and if he talked at all, it was his nature to tell everything. We both liked Proust and agreed that the beginning of Cities of the Plain [note 2] said all that needed to be said about being homosexual. In an interview in 1991 with art critic Richard Cork shortly before his death, Bacon was more blunt and direct about his sexuality, when, commenting on the public reception of his work in this country, said Oh they don't like my work here at all. Maybe it's the savagery they find in it, or maybe it's the homosexuality which I suppose is in my work. I don't go about shouting that I'm gay but AIDS has made it all much worse. People are very, very odd about it. As important as Bacon's own ambiguity towards discussing his work was the difficulty the art establishment had in acknowledging Bacon's subject matter. This was partly because critics did not want to see what was implied by the work, and partly because, just as in the work of David Hockney, they did not have an established language to use. Modernist orthodoxy had put forward the view that to be meaningful art had to be abstract, that it should avoid depicting particular events or people, but had to seek out some essence which could be conveyed as much spiritually as literally. Clearly Bacon's work presented a dilemma. It was self-evidently about particular events depicted with violence and passion, and while the emotional impact of the work could be acknowledged, the specific subject matter was more problematical. Peter Lennon could only hint at Bacon's subject matter saying "what painters and poets do for you is unlock the valves of sensation and bring you nearer to a kind of reality." It was not a reality Lennon chose to identify. Nor was this acknowledged by Michel Leris, the distinguished chronicler of Bacon's work, who comments that Bacon's 'searing' paintings express the human condition as it truly and peculiarly is today; man dispossessed of any durable paradise." [note 3] For the painter R. J. Kitaj, such generalizations would not do. Quoting Picasso, he wrote that "It is not sufficient to know an artist's work. It is also necessary to know when he did them, why, how, under what circumstances," adding "Bacon might not agree with that, but I do." Ironically perhaps, Picasso was one of the few artists whose work Bacon openly admired, and like Picasso he invariably worked from memories of people (or photographs) rather than from actual life. 'Why, how and under what circumstances,' are aspects of Bacon's work which have been thoroughly raked over in the flood of biographies and articles published since the artist's death, though none have been incisive about the artist's close involvement with his subject matter. For Bacon's retrospective at the Tate Gallery in London in 1989, he collaborated in the preparation of a commentary on each painting, giving background information and any relevant autobiographical details. In the event, the artist withdrew this material at the last moment and sadly the commentary has never been issued. Deprived of, or choosing not to acknowledge the 'facts' which inform particular pieces of Bacon's art, critics have been only too ready to fall back on generalities which reinforce the mystery and mysticism of the work, rather than offering any real analysis of it. For example, Brian Morton, writing in The Times Educational Supplement said that his painting "communicates a tremendous physicality, both of paint and its image," and that "much of his work has had to do with the uneasy relationship between the physical body and the spiritual nature," while the plastic qualities of paint are "thoroughly humane and wholly sympathetic." A convenient ploy to suggest that this is all there is in Bacon's work, which, under a veneer of art historical generalizations, subverts a closer discussion of the sort of tremendous physicality, with which the artist grappled. The late Peter Fuller, always a controversial critic, had little sympathy with Bacon's subject matter which he slightingly parodies as "lonely figures still throwing up in lavatory bowls beneath naked light bulbs, (who) occasionally...hunch together on couches for some barbarous act of congress, or be sprawled disgorging their abdomens." Nor did Fuller admire Bacon's use of paint, saying that he "applied pigment as if he hated the stuff, dragging it across the raw, unsized canvas which drains it of beauty and of all semblance of life." Lest we feel the homophobic boot is not well and truly slammed home he added, "Bacon's technical inadequacies seem to me to be inseparable from his spiritual dereliction." Fuller's rejection of Bacon's art and, I suspect, all that Bacon stood for, was a view not shared by other critics. More problematic is how Bacon, and the critics, regarded Bacon's homosexuality. At least the art critic Tim Hilton acknowledged the sexual dimension of Bacon's art, writing in purple prose that "Bacon's art is about risk, catastrophe, murder and an abandoned but private sexuality." Cautiously, he made no attempt to identify what the 'private sexuality' referred to. Richard Cork was less ambiguous, writing grandly "With characteristic honesty, Bacon has never made any attempt to hide his homosexuality. Some of his finest and most erotic paintings depict male figures embracing and making love," something of an understatement for the energetic and often violent actions pictured. Queer Francis Bacon was a queer artist in the old fashioned sense when queer was a term of abuse, a recognition and disapproval by society of divergent sexual tastes. In his own words he was not gay - he disliked the word - and preferred to be labeled queer. There is little indication to suggest that he was touched by the ideas and concepts of gay liberation, but rather that the movement brought an unwelcome intrusion in what he regarded as his private life. At the time of the Stonewall riots in 1969, he was nearly 60 and his lifestyle was resolutely pre-liberationist in style and attitude. To change this would have involved great effort on his part. 'Going public,' would not have seemed the thing to do at a time when his international reputation was well established. Yet by the late sixties Bacon had completed some of his queerest paintings. The relatively straightforward image Study from the Human Body, (fig 1) of a naked man behind a transparent curtain is sensuous and enticing, offering a glimpse of some quiet, personal moment. Contrast the intense privacy of this Study, with a number of paintings depicting two men on a bed, such as Two Figures, 1953, (fig 2) which is based on a photographic study of wrestlers by Eadweard Muybridge. Surrounded by a cage-like structure that both protects and entraps, the two naked figures who appear more male than female, grapple and engage, thrown into sharp silhouette by the whiteness of the sheets and the darkness of the background. The exact nature of their physical closeness may be enigmatic, possibly part of a struggle, perhaps an expression of sexual desire, but the intimacy and vulnerability remains undisputed. It, and such later images such as Three Studies of Figures on Beds, 1972, (fig 7) are very queer paintings. There is a similar ambiguity in Two Figures in the Grass, (fig 3) carried out a year later. Here the two naked bodies, again more male than female, are engaged in some intimate activity, some wild abandon in which decorum and pose are far less significant than energy and emotion. Whatever they are doing they are doing it with great passion and involvement. The grass suggests an outdoor pursuit, but the caging and framing could just as easily be inside some sort of cage - suggesting animal-like behavior. Nature is also a powerful component in the composition Figures in a Landscape, 1956/57 (fig 4). Here it is difficult to see exactly what the involvement is between the two figures, but the sense of interaction is powerfully expressed. As much as any artist and more so than most, Bacon poured his emotions and feelings into his art, often basing them on specific incidents in his life. His love affairs were often stormy, and frequently ended in violence. One of his former lovers, Peter Lacey, an ex RAF pilot who played the piano in Dean's Bar, Tangier, died on the opening day of Bacon's 1962 Tate Gallery show. Undeterred, Bacon attended the opening and publicly at least acted as though nothing untoward had happened. There was a similar catastrophe some 10 years later when Lacey's successor, George Dyer, also died a violent death at his own hand on the day of Bacon's larger and even more important retrospective which opened at the Grand Palais in Paris in 1971. While Bacon, the urbane and ultra-cool artist, acted out his part, his paintings continue to offer some idea of his inner turmoil and anger. His paintings of Dyer regularly present his lover as twisted, distorted and virtually disembodied. The Portrait of George Dyer in a Mirror, 1967-68 (fig 6) shows Dyer sitting in what looks like a swivel office chair, his disembodied face, split down the center, reflected in a lectern-like stand. On the painting are two splurges of white paint splashed across the surface reminiscent of semen defacing the image. Whether indicative of the sexual dimension of their relationship, or of the need to assert a particular personal expression of possession, even in an image, it was Bacon going public on a profound and deeply important aspect of his emotional life. Bacon could almost have said, as his acknowledged mentor Picasso had claimed some time before, "My work is like a diary. To understand it, you have to see how it mirrors my life." Without any precise commentary by Bacon to point us in the right direction we need to have to relate the events in the artist's life with the scenes he creates in his compositions. In some there is a suggestion of the body twisted and tortured, a dream-like state in which the reality of the flesh and the odder corners of the imagination seem to have full sway. In Triptych, 1973 (fig 8) there is an element of self-portraiture, of a figure looking critically at himself, at who and what he is. Although such powerful paintings are highly personal, they suggest a great deal about the 'human condition' in general. Observing the figure as it sleeps such as in Sleeping Figure, 1974 (fig 9) imbues the viewer with some of the power of the artist. We can observe without being seen, we can scrutinize the body, note it's form with an admiring or critical eye, secure in the knowledge of anonymity. Certainly
the starting point for any real assessment of Bacon's queer art - art
which for all it's establishment form, continued to explore deviant,
highly personal and transgressive emotions - is the work itself and a
knowledge of his life. But such work is only effective if it succeeds
not only in communicating the artist's own feelings and emotions, but in
conveying a meaning to which we all can relate, and to recognize the sort
of language being used. However reticent Bacon was in disclosing the
specific subject of his work, he was totally uncompromising when he came
to putting it on canvas. It is there to be seen, and from it we get not
only an indication of the turbulent emotional life of the artist, but more
importantly an insight into our troubled times. "Queer Francis," is based on "Queer Spectacles," which appeared in Outlooks: Lesbian and Gay Sexualities and Visual Cultures, edited by Peter Horne and Reina Lewis, Routledge, London and New York, 1996. [1] The first biography was by Daniel Farson, a long-standing friend of Bacon's, The Gilded Gutter Life of Francis Bacon, Century, London 1993 which drew on his friendship with the artist and his intimate knowledge of Soho. Andrew Sinclair's Francis Bacon: His Life and Violent Times (Sinclair-Stevenson, London 1993) is a more serious and detached study. [return to essay] [2] Marcel Proust Remembrance of Things Past: Cities of the Plain Trans C. K. Scott Montcrief and Terence Kilmartin, Vol. II, Penguin, London 1983 pp623-656. This incident describes a casual sexual meeting between M de Charlus 'whose ideal is manly precisely because (his) temperament is feminine,' and Jupien, a tailor. The 'objective' account identifies the sort of sexual signals involved and the (often) crossing of social boundaries. Proust goes on to identify different sorts of homosexual liaisons, though the overall picture is distanced and objectified. [return to essay] Michel Leris Bacon Phaiden quoted in Peter Lennon The Times 15/9/83. [return to essay] List of Illustrations
Bacon
discussion group | other
exhibitions | home
| top
|
| Influence
and Inspiration:
Francis Bacon's Use of Photography APERTURE, Fall 1996
|
||
|
|
||
The Body as Flesh: Theological and Medical Discourses
Professor Bryan Turner
Dean of the Faculty of Arts at Deakin University. He has published widely on social theory and made fundamental contributions to the sociological study of citizenship, religion and the body.
Art, Medicine & Body Conference, Perth, August 1996.
I will move forward into some twentieth century images of the human body. Francis Bacon's work, I think, is interesting for today's paper on the whole idea of fleshliness. A lot of people have commented on Francis Bacon's own name as an interesting statement about the human body. You probably know that many of Francis Bacon's works were influenced by his fascination, as a younger man, with medical pictures of pathology of the mouth. As we will see in some of the later slides I will show, [there is] an emphasis on the mouth in many of Bacon's works. He is, as you probably know, also very much influenced by the whole problem of war, violence, and terror in contemporary society.
This relates more to what I want to say in the second paper, but the body raises acute issues of what the self is, and I think in Bacon's portraits, what we are getting is a reflection on how the face relates to the notion of self in human society. . . . These are probably quite well known slides of Bacon that you will be familiar with. I want to get to the one called Painting 1946, which is the thing that I am going to concentrate on. It has got all the characteristic signs, so to speak, of a Bacon painting. There is the cage, or the frame that the body is located in; there are bits of butchered meat in various parts of the painting; we have got at the back a side of beef, yet again, which to me sends out signals about Rembrandt and Soutine and Goya and the whole western history of the body as flesh, the body as meat. Again, it raises important questions about relationships with nature and society, but also important questions about animal flesh and human beings, and the fact that human beings, in so far as they are carnivorous, share a community, a company, with animals through the consumption of meat. In the background, there is either a side of beef, or a crucifixion scene. Then there is a characteristic umbrella-or at least I read it as an umbrella-over the head, and in some of the interpretations of this painting that I have read, this head is partly based upon images of Mussolini. Here again, I think the mouth [is] the orifice which is connected to the beating and the destruction, with the consumption of meat, but also that organ which is characteristically human, namely the organ of speech and communication, an organ closely associated with sexuality and love, kissing and touching of lips, but also biting and violence. The fascination with the mouth and the fragmentation of the body into different parts-again, following both earlier talks-I think is quite interesting. The human mouth, again, is totally ambiguous, apart from the hand, probably one of the most expressive parts of the body. We shake hands, we spit on our hands, we clasp hands-another way of bonding, of course, is kissing and communicating through the mouth. So, [like] a lot of writing about deconstructionist methodologies-in one of the earlier papers, Alan was talking about the idea of language and body going together-I would say speech and communication and embodiment [are] very fundamental to much of what Francis Bacon is trying to say here.
SHEDDING LIGHT FOR THE MATTER: THE
GLARE
By Barb Bolt
Secrets are discoverable, they say, bones, mistakes, the passage of
blood through the body. And is it not the case that this unveiling as it
were, this great moment of truth has a luminous quality that circulates
such that knowledge claims a moral category and sets itself the task of
"shedding light on the matter"?
(Wilson, 1997:3)
We still like to shed light on the matter, such is our belief that light
reveals, unveils, illuminates, makes perceptible, renders legible our
relation to the world in which we live. In the heliophilia of
enlightenment thinking, the relationship between light and knowledge is
assumed and it is through vision that this nexus is achieved.
Cathryn Vasseleu elaborates the basis of this nexus :
1. Light is the source of universal knowledge,
2. Light serves as a common end; as an objective to be universally
achieved,
3. light is a dazzling, inchoate medium, which once rendered legible,
forms the basis of the language of subjectivity ( Vasseleu, unpublished
Ph.D thesis, 1994:176)
Not surprisingly, the photological tenents of western philosophy also
underpin western forms of visual representation:
1. Form is revealed though the light that falls on objects
2. Light creates a unified vision of the world
3. Light is used to render form legible
In this conception:
LIGHT = FORM = KNOWLEDGE = SUBJECT
subtext
DARK = MATTER = UNKNOWN = OTHER
It is through representational practices that matter becomes
transformed; matter attains a legible form.
The philosophical task of unpacking the assumed relationship between
light and knowledge have hinged on refiguring the facts of the matter.
In Francis Bacon’s work, for example, the ‘matters of fact’ are,
according to Parveen Adams, ‘nothing less than sensations that act
directly on the nervous system’ (Adams 1993:53). For theorists such as
Maurice Merleau-Ponty, Emmanuel Levinas, Luce Irigiray, Jacques Derrida,
Martin Heiddeger and Donna Haraway concern with the ‘facts of the
matter’ have involved developing a new genealogy of light: a genealogy
that arises in the matter.
The contribution of this paper to this debate is limited and situated.
It is concerned with the experience of light and how in a particular
Australian context, that of Western Australia, the experience of light
necessitates a reconsideration of the photological underpinnings of
representational practices. Visual practice may be inconceivable without
a consideration of light, but I will argue it is equally
‘inconceivable’ to practice in the 'glare' of the Australian sun.
Too much light on matter sheds no light on the matter. In this paper, I
suggest that the 'glare' produces a massive movement of
deterritorialization which reconfigures the relationship between light
and matter.
Heliophilia, or the worship of the sun and the Australian light has
mythical status. In a forum on regionalism and the arts in Western
Australia local artist Andrew Gaynor suggested:
The constant worship of sunlight and good weather so marks discussion
about Perth. This constant worship is perceived as one of the problems
of the way visual artists deal with Perth and Western Australia; so it
would seem that everyone is permanently on holidays enjoying such warm
and lovely weather. (Gaynor on Arts Today, ABC Radio July 1996)
He continued:
But the point was raised that it seems strange for Perth artists to
produce dark and gloomy art, or dare I say thought provoking art.
Couldn't it be seen as a manifestation of the frustration of these
artists who are dealing with weightier issues in the face of constant
warm fuzzies. (Gaynor on Arts Today, ABC Radio July 1996)
Andrew Gaynor was responding to an argument that I had made about the
proliferation of the 'dark' in artistic practice even in the face of the
'bleaching' out produced by the intensity of the Australian light. It
struck me then (and still does now) that Australian art practice
continues to operate under European notions of light and within a
European aesthetic.
And Vision, being the prerogative of Kings, Captains,
cartographers,scientists and priests (as well as visual artists ),
it is not surely just and right that the Discoverable should inhabit a
space of perpetual darkness, - silent, inert, suspended in the amniotic
fluid of blind possibility, waiting, waiting for the surgeon with his
knife...(Wilson,1997:3, italics mine )
The avant garde project in Australia, as elsewhere, is concerned with
the sublime imperative of delving into the dark, the unknown and the
unconscious, and of transforming matter into form. In this context
light/dark, form/matter remain as binaries and it is the prerogative of
the artist to present the unrepresentable; in short to shed light on the
matter.
According to this logic, light already being known and knowable, is
considered frivolous, the site of “warm fuzzies” and no more. I
argue that it is precisely the 'warm fuzzies' that become the site/sight
for refiguring visual/philosophical practices.
My position has emerged from a sustained period of participant
observation; of sitting under the sun trying to make landscape
paintings. I have many more freckles, suspicious sunspots, pterygiums
and deeply furrowed weather beaten skin to show for it... and a few
paintings.
In 1987, halfway through my visual arts degree, I went to Kalgoorlie to
teach. Kalgoorlie, a goldmining town about 700 kilometres east of Perth,
is located in marginal desert country. Cloudless skies, low humidity,
red earth, low scrubby vegetation, open mine pits and depthless mine
shafts characterize the region. In winter temperatures plummet to below
freezing, whilst in summer, temperatures hover around 40 degrees celcius.
There is little in between.
I had been making landscape painting before I went to Kalgoorlie, but in
the Goldfields, there was nothing to grasp hold of, no-thing to pin
down.
1. The 'glare' was so intense that no-thing at all was revealed
2. The landscape was so fractured and messy that no form emerged
3. It was impossible to use light to render form legible.
The 'rules' of perspective didn't work either;
4. The horizon remained but objects didn't get smaller in the distance.
5. distant objects didn't become more greyed out and diminish in
sharpness
and chiascuro in the distance. In fact, because of the lack of moisture
in the
air, the distance often seemed more defined than the foreground, the
colour appeared stronger so that the background jumped over the
foreground.
It struck me that in a place where blinds are constantly drawn against
the light, where people cover their windows with silver foil to keep out
the light and heat, where the sun's glare blinds and where sunglasses
serve a functional rather than a cosmetic purpose, it was time to
rethink the relationship between light and form; light and knowledge,
In the 'blind' light of the glare, light can no longer be assumed to
equal form and knowledge. Light itself becomes unthematized,
deterritorialized. In the 'glare', as Paul Carter points out,
"there is no point of access for the classifying eye" (Carter,
1996:219). The "glare" takes apart the enlightenment
triangulation of light, knowledge and form. In fact light becomes
implicated bodily, in the facts of the matter. My pterygiums and
sunbeaten skin, my mother and father's melanomas' and the incidence of
glaucoma implicate the sun in a very different set of processes. From my
optic, light can no longer be postulated as the catalyst that joins
objects whilst itself remaining unbent and unimplicated and in this, it
is no longer useful to speak of "shedding light on the
matter". (Carter, 1996:221) How then can we rethink the
relationship between light and matter? Perhaps the 'fuzziness' that
Andrew Gaynor spoke of can be recast in a more Harawayan way; as the
diffraction of light through matter, a process that implicates both
light and matter in the signifying practices. From this view, we can
speak of embodied situated knowledges.
Dictionary definitions of 'glare' provide two contradictory working
meanings: "fierce or fixed look" and an "oppressive
light; tawdry brilliance" (The Pocket Oxford Dictionary 1978:366).
In the former sense, glare fixes, in the latter, it undoes fixity. The
contradictory nature of the 'glare' becomes a useful device for
unpacking the assumed relationship between light and knowledge and as
such I propose to activate this contradiction as an adjunct to Deleuze
and Guattari's notion of faciality. Like the black hole/white wall of
faciality, the glare can fix and pin down. On the other hand, the
dazzling glare of the Australian light offers no point of access to the
classifying eye. In the intensity of the glare, the plane of
organization is ruptured, creating a massive deterritorialization.
In their theorization of faciality and facialization, Deleuze and
Guattari postulate a correlation between the face and the landscape that
is useful in my elaboration of the glare:
Face and landscape manuals formed a pedagogy, a strict discipline,
and were an inspiration to the arts as much as the arts were an
inspiration to them. Architecture positions its ensembles - houses,
towns or cities, monuments or factories - to function like faces in the
landscape they transform. Painting takes up the same movement,
but also reverses it, positioning a landscape as a face, treating one
like the other: "treatise on the face and the landscape”. (Deleuze
and Guattari 1987:172)
It is much harder to sit under the sun and map the ground anew than to
resort to the treatise of one's training. In the glare of the sun's
light, different strategies for mapping are required. I want to present
a different sort of mapping, a mapping that involves the body in
movement through space and time and in relation to place.
In Kalgoorlie it was strategically necessary to keep one's hat on and
one's head down to avoid the glare, to prevent oneself falling down a
mineshaft and to avoid stepping on broken glass and other more lively
ground creatures. It was also necessary in order to find paths others
had trekked before. One always kept one's eyes to the ground. The
gesture of hanging one's head (and this includes the political action of
hanging one's head in shame), is the reverse of what Carter suggests
happened to Aboriginal people with the coming of (en)light(enment).
The induction of Aboriginal people into enlightenment ways of seeing the
land involved a fundamental shift in looking. The action jerked the head
upwards through ninety degrees, shifting the eyes from the ground to the
horizon of linear perspective. In this action, Carter argues, the the
horizon came into view and seeing was divorced from the dance (Carter
1996:51).
Paul Carter sees this re-orientation as a shift from methektic trace to
representational image. Re/presentation suggests that an image only
stands in for objects, events and concepts. Methexis, on the other hand
is a "non representational principle...an act of concurrent actual
production, a pattern danced on the ground" (Carter 1996:84). Thus,
Carter’s interpretation, albeit a European one, is as follows:
the 'dot' of the traditional Central Australian dot-and-circle
painting...
grows from the fact that the dots are a physical trace of the jabbing
hand, as palpably imprinting the surface as the euro's foot marks the
ground. They are not the representation of ideas. (Carter 1996:66)
The 'dot' as John Welchman suggests, is " a trace of/on the
ceremonial site; a granular magnification of the original sand support;
and a daub on the surface of the body" (Welchman 1996:257). Viewed
at a distance, the dot matrix creates an oscillation, a pulsation. Under
very close scrutiny, each dot is still palpable, a mark in the process
of becoming. Viewed methektically, the dot doesn't become a sign that
stands in for something, rather it is performative. The 'dot' matrix is
a deictic marker, a trace of the labour of the performance, not just of
one person, but often of many. Paul Carter’s position is supported by
Yamatji artist, Julie Dowling’s, observation when speaking of the
Balgo women painters:
as the girls were doing it they were singing a song about it (and)
they were doing the actions with it...Each step means there's
another step to go on and this part of the country is this part
`of the picture so that as you are acting out the dot, dot, dot, dot,
dot; even the action in itself is quite rhythmical, but when you
bring that into connection with the heartbeat and also I'm telling
a story now; this dot connects with this dot; this story is about
this...the whole connection with the land comes from the process
up... (interview with Julie Dowling, April 1997)
This explanation suggests meaning is constituted in the performance.
Meaning is not arbitrary nor is it ever deferred; rather it emerges from
actions and the interplay between country, cultural knowledges and
materially constituted bodies, both individual and collective. Methexis
shifts the terms in the economy of representation. Images don't just
stand in for or signify concepts/ideas/things, nor are images just signs
that ceaselessly circulate. Knowlege production is embodied and locally
situated. In Aboriginal painting practices this linking of country,
knowledges and bodies is profoundly developed. In contemporary
non-Aboriginal visual practices this connection is yet to be realized or
actualized. Theorizing the glare and linking it to methexis provides me
with the opportunity the rethink what it means to make work in the
Australian context.
Maurice Merleau-Ponty's notion of the chiasma is useful for a further
elaboration of the implications of situated knowledges in rethinking (en)light(enment.
In the chiasmic intertwining between the cultural and the carnal,
Merleau-Ponty problematizes the enlightenment quadrangle: light = form =
knowledge = subjectivity. Through the subordination of "natural
light" to a carnally constituted light, Merleau-Ponty admits matter
into the equation. In speaking of Merleau-Ponty's carnal light, Cathryn
Vasseleu suggests that for Merleau-Ponty it is:
(d)efinable neither as a concept nor object, but within the language
of sensibility, any notion of the body is produced by the light or
perception which dawns through it (Vasseleu 1994:164)
In the context of the "glare", I want to turn up the heat on
Merleau Ponty's chiasma. Whilst for Merleau Ponty the chiasma is
indivisible, I would suggest it is infinitely mobile and in this
mobility, coherence dissolves. In the 'glare' of the performance, in the
heat of the moment 1., I would argue that the chiasma becomes molecular.
In the moving sensate body, vision is tied to the beat, pulse and rhythm
of the body and Rosalind Krauss suggests that this pulse has "the
power to decompose and dissolve the very coherence of forms on which
visuality may be thought to depend" (Krauss, 1988:51).
What is critical to this discussion, is that performance is "an act
of concurrent production" through which embodied knowledge is
produced (Carter, 1994:84). Meanings emerge in the facts of the matter.
Rather than meaning being revealed or clarified, it is through
performance that social meanings are produced. This is methexis in
operation. In this schema, the terms of the economy of representaton
shift. Images don't just stand in for or signify concepts, ideas or
things, nor are images signs that ceaselessly circulate; rather, meaning
is produced as an embodied situated event. Imaging produces reality.
At one level, the proposition that methexis creates real effects, could
be seen to come close to Baudrillard's notion of simulacrum. Simulacra
produce reality. The difference, however is quite critical. For
Baudrillard, the subject has no agency to resist the effects of the
production of reality by signs. In the hyper-reality of mimicry, the
similar produces the similar. The mimesis of methexis, however, is
productive. In methexis, the interplay between country, bodies and
language produces a veritable production. Mimicry is no longer the
reproduction of the same; mimesis is no longer a copy and representation
no longer sheds light on the matter. Michael Taussig, in quoting Walter
Benjamin, has suggested that, "mimesis is the art of becoming
something else, of becoming other"
(Taussig 1994:36).
My argument so far is this: that instead of shedding light on the
matter, the sun's 'glare' works to pulverize the sign and allows for a
veritable production which transforms rather than reproduces the same.
In this I am arguing for a different conception of the sign function, a
conception whereby:
1. signs don't just represent their object (classical)
2. signs doesn't just stand in for or signify concepts (Saussurian
semiology)
3. signs don't just ceaselessly circulate, sign giving way to sign (Derridean
differance)
nor
4. in the hyppereal of simulacra does the similar produce the similar.
Rather, in this conception, performance produces signification and
signification in turn has real effects. It is in the chiasma between
country, cultural knowledges and materially constituted bodies, that
poeisis makes anew. Sign production is a methektic production involving
the interplay of bodies and language. It is the becoming sign of the
matter.
In conclusion then, I would argue that to think methektically is to
think quite differently about the potential of visual practices. It
involves thinking with the body, through matter. In the heat and the
glare of the Australian light, I have suggested a very specific critique
can be launched against enlightenment vision. In this view, visual art
practice is not concerned with shedding light on the matter, but is a
becoming sign of the matter. I believe that such an position implicates
artistic practices in an ethical and ecological matrix and contributes
to a different conception of visual practice and visual aesthetics. I am
arguing for a shift from visual aesthetics (form) to visual ethics
(matter) and in doing so, I believe it does matter how I practice.
1. Working in the heat of the moment relates to the notion of working
hot. The term 'working hot' is derived from Mary Fallon's novel Working
Hot. Carolyn Chisholm, in her analysis of Working Hot , argues that
Mary Fallon's writing produces a lingual performativity, whereby
language mimes the motions of the body. Chisholm suggests that by
"imitating excessively the 'pantomime of carnal acts between
bodies, language (can) exceed its own structures in a radical verbal
performativity" (Chisholm 1995:20). In other words, there is the
potential for utterances to perform, rather than stand in for the
object. If working hot creates the potential for utterances to perform
rather than represent their object, then I would argue that working hot
has affinities with Paul Carter's elaboration of the notion of methexis.
| Portrait
of the week No 96
Bacon's Study for
Portrait II - after the Life Mask of William Blake (1955)
Jonathan
Jones
Artist: Francis Bacon (1910-92), who once described his art as an attempt "to unlock the valves of feeling". To do this, he tore apart conventions of modern and traditional art, walking a tightrope between the figurative image and abstraction, returning to the early years of modern art and the example of his hero Vincent van Gogh. Bacon was a romantic - and also a reader. A more studious figure than Bacon the Soho low-lifer was revealed last year by the installation of his studio as an exhibit at the Hugh Lane Gallery in Dublin. In addition to well-thumbed volumes of Heidegger, Lacan, Freud, Joyce, Chaucer and Aeschylus, there is his copy of the life-mask of William Blake. Subject: William Blake (1757- 1827), author of The Marriage of Heaven and Hell, engraver of The Ancient of Days. By his old age, when he had his life-mask taken, Blake was a cult figure among a small circle of Romantics. In September 1823, he let the sculptor James Deville immerse his head in plaster, with only a straw to breath through as it solidified. Before photography, masks from moulds of living and recently dead faces were the most accurate way of preserving someone's appearance. Deville probably learned the technique from his master, the sculptor Joseph Nollekens. Deville practised phrenology - reading character from the size and shape of the skull, as devised by J Spurzheim. Blake seems to have read Spurzheim, too. His drawing of the man who taught him painting in his dreams (c1819-20) resembles a phrenology diagram. Deville built up a collection of casts and wished to include Blake's "as representative of the imaginative faculty". Because of phrenology, we have a quasi-photographic image of an artist who has become infinitely more famous since his death. Distinguishing features: Blake is a pale film in the dark, a flayed face, features compressed like those of a bank robber with a stocking over his head. The features are brutally crushed, there and not there, eyes pressed shut, one eyebrow oddly raised, the lips pushed in. Although skin is vividly suggested in the sickening pink of the brow and cheek, this is not the outward man. White mist flows up the cheek and over the broad skull, dematerialising the flesh. It's as if we are looking underneath the surface of skin at the ghostly presence of the man within. This is a portrait not of the flesh, but of the spirit. Bacon made a series of paintings of Blake's life-mask in the mid-1950s. The title, however, is generalised: "Study for Portrait" suggests this is an attempt to get at the essence of what a portrait is. Bacon kept his own copy of Blake's life-mask next to treasured personal photographs. His painting feels as if it were based on a photograph. Bacon stresses the similarity of life-casting to photography, in order to reveal the deathliness and violence of both in rendering brute fact. His painting, however, apprehends something beneath the visible skin: an inner self, suffering in absolute isolation. This is a passionate and finally mysterious tribute from one great London artist to another. Inspirations and influences: There are models for this intense communion with a dead artist in Blake's work. Blake portrayed, from life, the spirits who visited him. Blake's spirit portraits include John Milton, and The Ghost of a Flea (c1819-20). There's a similarity between Bacon's Blake and Blake's Flea in their fleshy, monstrous intensity, the authority of a vision seen in darkness. Where is it? Tate Britain, London SW1 (020-7887 8008).
|
![]() |
Francis Bacon Exhibition Information
Francis Bacon was born in Dublin in 1909 and died in London in 1992. Acknowledged as one of the greatest artists of the twentieth century. Grew up in County Kildare until the age of 16. Worked and lived in London.
From 1961 until his death in 1992, 7 Reece Mews in South Kensington, London was the centre of Francis Bacon's working life.
Size of the
Studio :
The small studio measures 4 metres by 8 metres.
John Edwards
:
After Bacon's death John Edwards, his life long companion and heir concluded
that his studio should be preserved in an appropriate location where it could be
on public view. When he decided to donate it to the Hugh Lane Gallery, the
Gallery brought at once together the necessary expertise to excavate the studio
and bring the contents to Dublin. As John Edwards said "A little corner of
South Kensington moved to Ireland, his birthplace. Thousands of papers, books,
photos, rotted curtains - all in Dublin. I think it should have made him roar
with laughter."
Database of
contents :
Specially designed computerised database. With 7,500 entries this is now the
most comprehensive documentary archives of any artist, living or dead.
Drawings:
The discovery of over seventy drawings finally buries the idea that Bacon never
produced drawings. In addition, a considerable number of these drawings were
executed on leaves torn from books, magazines as well as loose leaf lined paper
and tracing paper. From a conservation point of view these drawings were quite a
challenge in that many of them were in extremely fragile condition but yet the
folds and crumples were very deliberate. Another fascinating aspect to the
studio was the discovery of seventy "slashed canvases", the earliest
dating from 1946.
The studio contents comprise a vast archive of material on both the artist's life, inspirations, unusual techniques and working methods.
Slashed Canvases:
There were100 slashed canvases found in the studio.
Study for Man with Microphones is one of the most important of the slashed
canvases. It dates from 1946. A black and white illustration of the painting
(before it was slashed) appears in John Rothenstein and Ronald Alley's 1964
catalogue raisonné of Bacon's work.
Another is the 1960s work seen at the mirror end of the studio. The use of the
dappled carpet effect in the foreground was abandoned by the artist and the face
of the figure on the bed slashed.
Photographs:
Over 1500 photographs found. Photographs by John Deakin, Cecil Beaton, Peter Beard, Henri Cartier-Bresson,
Peter Stark and many others provide a fascinating insight into both the bohemian
milieu in which Bacon operated and the artist's method of manipulating his
source material. The sheer range and diversity of Bacon's interests is also
reflected in his reading material with art books, books on personal finance,
poetry, cooking, football, psychic happenings and the supernatural side by side
on the studio shelves. The vast array of household paint pots, used and intact
paint tubes, paint brushes, cut-off ends of corduroy trousers and cashmere
sweaters all provide fascinating insights into Bacon's techniques.
The photographs of Vogue photographer John Deakin (1912-1972) were particularly important to the artist and over 120 Deakin photographs and a collection of negatives have been found in the Reece Mews studio. Many of these were used as a basis for Bacon's portraits of George Dyer, Peter Lacy, Henrietta Moraes, Isabel Rawthshorne and Lucian Freud.
During the 1970s. Michael Holtz, Michael Pergolani, Jorge Lewinski, Henri Cartier-Bresson and Peter Stark photographed him in Reece Mews and several of these images were found strewn around the studio.
Over 200 photographs taken by the American wildlife photographer and writer, Peter Beard were found in Reece Mews studio.
Arrows:
Arrows occur in Bacon's paintings from every period. The idea for use of arrows
most probably came from a book "Positioning in Radiography" by
Kathleen Clara Clarke, one of the many medical books the artist had in his
studio.
Palette
No palette was found in the studio, Bacon preferred to use the walls, door and
small canvases.
Books
Over 570 books and 1300 loose leaves torn from books were found in Bacon's
studio. Numerous books on subjects as diverse as art, photography, history,
politics, cinema, sport, supernatural phenomena and medical textbooks have heavy
paint accretions and pages torn out. Bacon often ripped out salient images from
books and mounted them on pieces of card.
Bacon read voraciously and had a profound interest in the poetry and prose of classic authors including T.S. Eliot, Aeschylus, Shakespeare, Federico Garcia Lorca and W.B. Yeats.
Four copies of Eadweard Muybridge's The Human Figure in Motion as well as over 100 loose leaves from the book were found in the studio.
Three books on supernatural phenomena were found in Francis Bacon's studio and Baron Von Schrenck-Notzing's Phenomena of Materialisation is undoubtedly the most significant of these.
Over a dozen medical textbooks and general health books were found in the studio. The one most central to Bacon's art was, Positioning in Radiography, by Kathleen Clara Clark, first published in 1939. Over sixty torn loose leaves from the book were found in the studio as well as two hardback volumes.
Artists
Materials
Some 2000 samples of Bacon's painting materials were found in the Reece Mews
studio. These include hundreds of used paint tubes, jars of loose pigment,
paintbrushes, utensils, tin cans, sticks of pastel, pieces of fabric, empty
bottles of turpentine, cans of spray paint and of fixative tins of household
paint and countless roller sponges.
Several pairs of Marks and Spencer thick corduroy trousers were found in the studio. Many of these were cut up into pieces, which Bacon used to pattern his paintings.
Two cut-out heads of George Dyer, one in colour and one black and white have been found in the studio. Due to the presence of a number of pin holes in these items and the paint around the outlines, it seems likely that they were used to trace the profile onto canvas.
Influences
In interviews given during his lifetime, Bacon professed great admiration for
the works of artists including Michelangelo, Ingres, Degas, Picasso, Giacometti
and Van Gogh, in particular their drawings.
Discoveries
:
On closer examination of the walls some of Bacon's notes to himself were
revealed, as too was a small drawing measuring 11cms high by 15 cms wide.
Although Bacon claimed he never made preparatory drawings for a picture, over
seventy drawings were discovered in the studio including this one on the wall.
The large number of notes in Bacon's distinct hand-writing is highly revealing. Many refer to ideas for future paintings, and as a personal form of artistic shorthand are an excellent record of Bacon's thought processes.
The Francis Bacon Studio project is the most important cultural donation made to the Hugh Lane Gallery since Sir Hugh Lane's donation in 1908. Its valuable contents provide a unique contribution to the historical understanding of Francis Bacon's art and the evolution of art practice of the period.
21st May 2001
|
Three Studies for Figures at the Base of a Crucifixion 1944 Francis bacon © Tate London 2001
"The human beings in Bacon's pictures seem half-animal, or half-reptilian. Sometimes they have the whiteness of death; sometimes they are white and red, like joints of meat...He wants to make the animal come through the human being; and he wants the paint itself to carry its own implications..." Francis Bacon: The Observer Profile, The Observer Weekend Review, Sunday, 27th May, 1962.
"The triptych arrangement enabled him to join three repugnant creatures in one work. At the same time, it isolates each presence within gilt frames so that none can alleviate he other's torment. The female figure on the left, saddled with a pair of limp feelers hanging from her shoulder-stumps, cranes forward. She seems to be trying to slide off her perch and discover what is happening in the central panel, but cannot move. Paralysis also affects the monster on the right, a hump-back oddity with starved ribs who can only stretch out its distended neck and utter a helpless roar. The realistic human ear attached to this screaming head clashes with the animality of its body. And the same principle of shock through contrast applies to the patch of grass growing so unexpectedly in the orange ground which gives the whole triptych such a parched and eye-smarting air. The impulsive handling of paint and pastel, smeared, scraped, slashed and dragged over the hardboard rather than applied with conventional refinement, shows the urgency with which Bacon set down this atheistic vision of hell. But discipline counters the rhetoric wherever you look. Spare black outlines brushed in behind the figures lend order to the triptych, and direct out attention towards the middle. Here, the focal image offers no trace of a body on a cross. Instead, a beast as brutish as its companions bares jagged teeth at us. The beast could be growling, like an enraged dog warning strangers not to get too close. Or it might be yelling because its eyes, like poor Gloucester's in King Lear, have been put out. The ambiguity has been exposed, for Bacon understands that a cry can signify aggression just as easily as pain." Richard Cork, 1992.
"Their anatomy was half-human, half-animal, and they were confined in a low-celinged, windowless and oddly proportioned space. They could bite, probe, and suck, and they had very long eel-like necks, but their functioning in other respects was mysterious. Ears and mouths they had, but two at least were sightless. One was bandaged. The left-hand figure had the hairstyle of a female jail-bird. At shoulder-level it had what might have been mutilated wing-stumps. An inch or two below these there was drawn tight what might have been either a shower curtain or a pair of outsized pajama trousers. Set down on what looked like a metal stool, the figure was trashing round as if to savage whatever came within biting distance. The central figure, anatomically somewhat like a dis-feathered ostrich, had a human mouth, heavily bandaged, set at the end of its long, thick tubular neck. What that neck might have looked like without the bandage was indicated by the right-handed figure. It had big ears at the corner of its mouth, and was able to open that mouth to an angle of about ninety degrees. It's one visible leg was as much a sofa-leg as an animal leg, and the patch of grass on which it stood was nearer to a bed of nails than to the shaven lawns of Oxford and Cambridge. Common to all three figures was a mindless voracity, an automatic unregulated gluttony, a ravening undifferentiated capacity for hatred. Each was if as cornered, and only waiting for the chance to drag the observer down to its own level." John Russell, 1971.
"Three Studies for Figures at the Base of a Crucifixion" seems derived from Picasso's Cruifixion, but further distorted, with ostrich necks and button heads protruding from bags - the whole effect gloomily phallic, like Bosch without the humour. These objects are perched on stools, and depicted as if they were sculpture, as in the Picassos of 1930. I have no doubt of Mr Bacon's uncommon gifts, but these pictures expressing his sence of the atrocious world into which we have survived seems [ to me ] symbols of outrage rather than works of art. If peace redresses him, he may delight as he now dismays." Raymond Mortimer, New Statesman and Nation, 14 April 1945.
"Three Studies for Figures at the Base of a Crucifixion manifests a terrible, expressive violence. It does not represent any violent act. But some undefined and inhuman violence that occurred in an unseen space beyond the limits of the painting has impressed its horror on the forms and the coloured areas surrounding them...The human and bestial elements composing the figures, all rendered ambiguous by their respective deformation, are so impenetrable and enigmatic as to thwart comprehension of any explicit meaning. Any attempt to deduce prior intention in the morphology of these bodies by means of logic will fail, collapsing in admission that this painting leads into an unknown area, at whose boundaries conventional logic must halt. In Bacon, painting is not a field for the imitation of apparent reality, but an independent and artificial act emerging from the innermost and most instinctive needs of the individual, dominated exclusively by the profound, wild force of expression...More animal than human, so excessive as to become unaware of its own expressive implications: it is no longer capable of communicating anything intelligible. The very obscurity of the origin of this sensation and the likely identity of the visible subject allows the image to avoid any particular illustrative signification and penetrate instead to the quicker and more intuitive level of the mind: where sensations act, such as the modes of awareness that precede logic and run deeper than it." Bacon, 'Obsessed by Life', The Expression of Horror, Luigi Ficacci, Taschen, 2003.
"I've never known why my paintings are known as horrible. I'm always labelled with horror, but I never think about horror. Pleasure is such a diverse thing. And horror is too. Can you call the famous Isenheim alter a horror piece? Its one of the greatest paintings of the Crucifixion, with the body studded with thorns like nails, but oddly enough the form is so grand it takes away from the horror. But that is the horror in the sense that it is so vitalising; isn't that how people came out of the great tragedies? People came out as though purged into happiness, into a fuller reality of existence". Francis Bacon, Interviews with Francis Bacon; David Sylvester, 1993.
|
IN THE HIGH
COURT OF JUSTICE
CHANCERY DIVISION
Royal
Courts of Justice
Strand, London, WC2A 2LL
Date: 15th May 2001
B e f o r e :
THE HONOURABLE MR. JUSTICE PATTEN
- - - - - - - - - - - - - - - - - - - - -
(Claimant)
- and -
(Defendants)
- - - - - - - - - - - - - - - - - - - - -
MR. G. VOS QC Mr. D. Foxton and MR. A. ROBB (instructed by Freshfields Bruckhaus Deringer for the Claimant)
MR. M. BRIGGS QC and MR. H. TOMLINSON (instructed by Harbottle & Lewis for the First Defendant)
MR. M. LYNDON-STANFORD QC and MR. M. CUNNINGHAM QC (instructed by Allen & Overy for the Second Defendant)
Click on Url: Clarke v Marlborough Fine Art (London) Ltd and another
- - - - - - - - - - - - - - - - - - - - -
1. This is the first Case Management Conference in this action which I have conducted since I was nominated by the Vice-Chancellor to deal with this case. The action was commenced and Particulars of Claim were served in March 2000. Defences have been served by both Defendants. The Claimant now seeks directions in respect of mutual disclosure, inspection and expert evidence with a view to a trial commencing in January 2002 before me. The Claimant's current estimate of length is 12 weeks.
2. This ruling however is limited to the Claimant's principal application which is for permission to amend the Particulars of Claim. This is opposed by both Defendants principally on the basis that the Amended Particulars of Claim as served in draft do not disclose reasonable grounds for bringing the claim within the meaning of CPR Rule 3.4 (2)(a). To cater for all possibilities they have also issued applications under Part 24 for the summary disposal of the action in their favour and as an alternative for the striking out of the existing Particulars of Claim should I refuse Mr. Vos the permission to amend which he seeks. It is I think common ground that I should first consider Mr. Vos' application for permission to amend and in so doing rule upon the Defendants' challenge to the viability of the claim. If I accede to that application then the Part 24 applications necessarily fail. If I refuse that application so that Mr. Vos is left to rely upon the existing Particulars of Claim then it may become necessary for me to deal with the Defendants' applications to strike out that pleading and to dismiss the action even in its current form.
3. I say "may be" because if Mr. Vos is right and the new pleading adds little in substance to the old, it is difficult to see how the original pleading could survive a ruling by me that the draft Amended Particulars of Claim do not disclose reasonable grounds for bringing the claim.
4. It is necessary to begin by saying a little about the background to these proceedings. The Claimant, Professor Brian Clarke, brings this action as the executor of the estate of the late Francis Bacon who died in 1992. It is I think beyond dispute that Bacon was one of the greatest artists of the 20 th century but both he and his paintings were controversial in their time and public recognition of his worth was not immediate. Bacon was born in Dublin in 1909. He came to London before the Second World War and lived here for the remainder of his life. By the time of the war he was producing paintings which have subsequently been recognised to be of museum quality. A notable example is Three Studies for Figures at the Base of a Crucifixion, painted in 1944, which is now in the Tate Modern Gallery.
5. In 1958 (when he was 49 years of age) he entered into an agreement with Marlborough Fine Arts Limited (referred to in the pleadings as Old Marlborough) for a period of 10 years under which that company agreed to purchase a number of his works for specified prices and to have the sole and exclusive right to sell and authorise the sale of artistic works by him and to make and/or sell or to authorise the making and/or sale of reproductions of such works. I shall return to these provisions later in this judgment. Old Marlborough ceased trading in 1968 and was dissolved in 1971. Its business was taken over by the First Defendant, Marlborough Fine Art (London) Limited which I shall refer to as Marlborough UK. It is alleged by the Claimant (and not I think disputed) that both companies were owned and run by the same individuals. Principally these were Mr. Frank Lloyd, his son Mr. Gilbert Lloyd, Mr. Harry Fischer and David Somerset, now the Duke of Beaufort. The Second Defendant, which I shall refer to as Marlborough Liechtenstein, started to trade in about 1972 and was at all material times under the same beneficial ownership and control as Marlborough UK. As part of his case the Claimant relies upon a ruling of the Surrogate's Court of New York in the case of Rothko v Marlborough Gallery Inc. where the court said of Frank Lloyd that:
The Marlborough organization is a maze of 21 legal entities. Except for non-majority participations in three galleries, the ultimate interests in the organisation as well as the three mentioned galleries which are not the respondents here rest in a foreign inter vivos trust and 'stiftung'. The beneficiaries of these holdings are respondent Frank Lloyd … and members of his family alone … Lloyd authoritatively asserted at the trial that he alone dominated and controlled all Marlborough operations. All consequential decisions were made by Lloyd and all employees acted pursuant to his instructions. The finances of the various Lloyd-controlled companies were intermingled and paintings were invoiced to and from these companies as convenience served ... The conclusion must be that Lloyd is Marlborough.
During the course of his submissions Mr. Lyndon-Stanford invited me to treat both Defendant companies to this action in the same way and to regard Bacon's dealings with them as effectively dealings with Frank Lloyd.
6. The 1958 Agreement was terminated by Bacon in 1963 so as to allow him to deal through a Swiss gallery but the arrangements with Old Marlborough were extended by agreement until 1964 purportedly to allow Bacon's tax affairs and accounting problems to be resolved. In fact the intended arrangement with the Swiss gallery seems never to have materialised. It is now common ground that from June 1964 onwards the relationship between Bacon and the Defendants was not governed by a contract derived from or corresponding to the terms of the 1958 agreement. What is alleged by the Claimant is that there continued to exist between the parties an arrangement or relationship which was fiduciary in nature and which imposed upon the Defendants an obligation of loyalty to Bacon requiring them to place his interests before their own and to disclose to him and to obtain his consent to the profits which they received when they sold on his paintings to their third party clients. It is also alleged that this fiduciary relationship was such as to invalidate any sales of paintings between Bacon and the Defendant companies as principals except upon proof that Bacon entered into these sales freely and independently and on a fully informed basis. This, says the Claimant, can only be established in this particular case by evidence that Bacon was informed by Marlborough and understood that his paintings would be sold on for prices considerably in excess of what the Defendants had themselves agreed to pay.
7. In their existing form the Particulars of Claim place considerable (and I think primary) emphasis upon the 1958 Agreement as the source of the Defendants' ; alleged fiduciary obligations to Bacon. In paragraph 3 it is pleaded that by the late 1950's Bacon was a "well recognised" artist but that his earnings from painting were modest. Between April 1956 and October 1958 when he entered into the agreement with Old Marlborough the proceeds of sale from his work totalled only £1725. This plea remains in the amended draft (paragraph 17). The 1958 Agreement to which I have already referred provided Bacon with an immediate payment of £2500 which was stated to be a loan repayable by 1st February 1959 in paintings selected by Old Marlborough from Bacon's current and future production. The agreement specifies a scale of payment or value for the paintings ranging from £165 for a painting 24 x 20 inches in size to £420 for a painting measuring 78 x 65 inches. I am told by Mr. Vos that payment according to size is not uncommon in dealings between artists and their galleries. In addition Old Marlborough was entitled under the agreement to select paintings in each year up to a value of £3500 based upon the same price formula.
8. This agreement is alleged (in paragraph 6 of the Particulars of Claim) to have been subject to a number of implied terms including that Old Marlborough would make and render full and accurate records of all works sold or authorised to be sold on Bacon's behalf and would account for all sums generated as a result. They would also exercise all reasonable skill and care in promoting his career and would not put themselves in a position where their duties might conflict with their own interests.
9. It is then alleged that both before and after entering into the 1958 Agreement Bacon relied upon Frank Lloyd and Harry Fischer to advise and guide him in his career and to advance and protect his own interests. In so doing he reposed trust and confidence in them. He was, it is then alleged, Bohemian, lacking in business and financial experience and without the benefit of any independent advice. The 1958 Agreement contained no provision for a price increase during its term (which taking into account a provision for early termination was for a minimum of 5 years) and therefore took no account of the possibility that Bacon might become commercially very successful during that time. In these circumstances the agreement was to be presumed to have been obtained by undue influence and was voidable in equity.
10. In addition to the 1958 Agreement the Particulars of Claim (paragraph 11) allege a parallel agreement with Bacon made by conduct under which Frank Lloyd, Harry Fischer and Miss Valerie Beston, an employee but not a director of Old Marlborough, agreed "to manage his affairs relating to his professional career and private affairs". This is described in the pleading as the Management Contract and for convenience I shall refer to it in the same way. Under this agreement the individuals I have referred to and through them Old Marlborough are alleged to have made loans to Bacon, to have introduced him to Messrs. Theodore Goddard who subsequently acted for Bacon in his tax affairs and drew up his Will, to have paid Bacon's domestic bills, to have arranged exhibitions, to have protected his copyright and to have managed his finances at least in the sense of opening bank accounts for him and holding money to his account. The Management Contract is said to have given rise in itself to various fiduciary duties on the part of Old Marlborough. Most critically these are pleaded in paragraph 14 as including a duty to act in Bacon's interests and not their own, not to allow their duties to Bacon and their own interests to conflict and not to make a profit from their fiduciary position. These fiduciary obligations are said to have been broken in that Old Marlborough under the 1958 Agreement paid to Bacon prices that were less than the fair market value of the works sold and thereby put their own interests before those of the artist. The prices which Old Marlborough obtained for his works were not disclosed to Bacon or accounted for.
11. Part C of the Particulars of Claim deals with what it describes as the Marlborough UK Period which begins in 1968 and lasts until Bacon's death in 1992. Once again the underlying relationship between the parties is alleged to be contractual. During this period (paragraph 20) the same two basic arrangements are alleged; (i) an exclusive sales agency for Bacon's works and (ii) an agreement for the provision of management services of the kind I have already described. Both these agreements are based on conduct and both are said to be subject to the same terms and to give rise to the same duties as are pleaded in relation to the Old Marlborough Period. In the alternative it is pleaded in paragraph 25 that the same fiduciary duties (i.e. not to profit nor to allow a conflict of duty and interest) existed after 1968 even if there was no underlying contractual relationship of agency or for the provision of management services. The relationship between Bacon on the one hand and Marlborough UK through Frank Lloyd and Miss Beston on the other is alleged to have been a de facto relationship of trust and confidence under which Bacon was "content to put himself entirely in Frank Lloyd's and/or Miss Beston's and/or Marlborough UK 's and/or Marlborough Liechtenstein's hands, relying upon them to be loyal and to act in his best interests, reposing trust and confidence in them". The factual basis for his plea consists of the same acts or services which Miss Beston and others performed. These include the arrangements under which Miss Beston took custody of any new paintings completed by Bacon, had them photographed as part of a continuing record by Prudence Cuming Associates Limited, prepared a written record of the work and then arranged for the painting to be framed and stored.
12. On the basis of the fiduciary relationship pleaded the purchase of paintings by Marlborough UK and any sales affected by them are said to have been procured by presumed undue influence or breach of fiduciary duty and are accordingly voidable in equity. Although elaborated upon in some detail in the pleading the basic allegation (as for the Old Marlborough period) is that the paintings were sold by the Defendants for prices which far exceeded the amount which they paid to Bacon. Had Bacon, it is said, been fully informed and properly advised he would not have allowed the Defendants such advantageous terms. He was during the Marlborough UK period (paragraph 31(b)) "still a man inexperienced and disinterested in business matters and who was content to put himself entirely in [the Defendants'] hands, relying on them to give him a fair deal".
13. The principal purpose of the Amended Particulars of Claim is to remove the allegations that the relationship between Bacon and the Defendants was governed by some underlying contract. It is now accepted by the Claimant that the 1958 Agreement did not survive its limited extension into 1964 and that the Management Contract as such never existed. Instead emphasis is now placed on the continuing dealings between Bacon and the Defendants both before and after 1964 as giving rise to what is described as "an arrangement of convenience whereby Bacon allowed Marlborough UK and/or Marlborough Liechtenstein to be the sole agent for the commercial exploitation of his artistic output (paragraph 43)." In addition it is said that Marlborough UK was Bacon's agent in relation to his personal, professional and artistic affairs generally (paragraph 42). In support of this plea the Claimant relies upon the same services particularised in the existing Particulars of Claim in relation to the Management Contract although with more detailed information about Miss Beston's role in organising Bacon's tax and financial affairs.
14. Out of these arrangements and the trust and confidence which Bacon is said to have reposed in the Defendants arose the self-same fiduciary duties as previously pleaded. The allegations of breach of fiduciary duty are set out in Section E8 (paragraphs 47-51) of the draft pleading in a slightly revised form. In particular it is now specifically alleged that Bacon never agreed the rate of remuneration or profit which the Defendants made from their dealings with his pictures and never gave nor could ever have given his fully informed consent to such profits. It is pleaded in paragraph 49 that the Defendants either sold the paintings to third party galleries and collectors or purchased them on their own account without prior reference to Bacon. The sums which they paid him were, it is said, manifestly disadvantageous and he would not have consented to such prices had he been fully informed and had he received independent legal advice in relation to such matters (paragraph 50). The allegation of lack of informed consent is further particularised in paragraph 52 (in relation to sales as agent) and in paragraph 54 (in relation to purchases as principal). Bacon, it is said, did not know the price at which the works were offered for sale to third parties, the price at which they were sold, the insurance value or the commission or profit made by the Defendants in respect of each painting.
15. In relation to sales as agents the Defendants are sought to be made accountable for any profit they made beyond what might constitute a reasonable allowance for the work done. In relation to any purchases by them there is a claim to set aside the transactions and for an account on the basis of presumed undue influence or abuse of confidence. There is also a claim for an account in respect of lithographs produced or authorised by the Defendants which I shall deal with separately.
16. In this analysis of the Amended Particulars of Claim I have deliberately omitted any reference to the structure and layout of the proposed pleading. Much criticism has been made about this and I shall have to say something about it later in this judgment. But as Mr. Lyndon-Stanford realistically accepted criticisms of the clarity of expression and style (whilst not unimportant) are secondary to the Defendants' primary objection which is the viability of the claim. It is to that which I now wish to turn.
17. Although this is an application for leave to amend under CPR Part 17 it is accepted by Mr. Vos that I should consider the Defendants' objections to the pleading as part of that application rather than as separate (and subsequent) applications to strike out or for judgment under Part 24. CPR Part 17 also requires me to apply the overriding objective (CPR Part 1) by considering whether the proposed amendments will enable the court to deal justly with the claim in a way that is proportionate to the importance and complexity of the case and to the financial position of each party.
18. It seems to me that an important part of this process must be to ensure that the new pleading will assist the efficient and economic disposal of the claim both in terms of allowing the Defendants to meet the case against them and ultimately by providing the court with an intelligible account of the issues to be tried. As part of this process I have been urged by both Defendants to dismiss on a summary basis what they contend is a speculative piece of litigation or as Mr. Lyndon-Stanford preferred to describe it, "a try-on". If satisfied on their arguments that the case has no realistic prospects of success I should dispose of it now rather than expose their clients to protracted and expensive litigation which will ultimately fail.
19. An application to dismiss or dispose of an action on a summary basis (whether under CPR Part 3.4 or CPR Part 24) cannot be acceded to unless the court can be satisfied that it has before it the material which permits it to achieve a just resolution of the dispute. In order to consider whether the Claimant has no real prospect of succeeding on the claim or whether the statement of case discloses any reasonable grounds for bringing the claim the judge must feel sure that the summary process has allowed the party under attack fairly to present his case. If that can only be achieved through the medium of a trial then the summary application must be dismissed.
20. In Swain v Hillman [2001] 1 AER 91 Lord Woolf CJ (at pages 94 and 95) said this:
It is important a judge in appropriate 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. As Mr. Bidder put it in his submissions, 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.
This approach has been approved by the House of Lords in Three Rivers District Council v Bank of England (22nd March 2001) where an application was made to strike out a claim against the Bank based on alleged misfeasance in public office. In paragraph 95 of the speeches Lord Hope of Craighead said this:
I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be take that view and resort to what is property called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lloyd Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.
In approaching the Claimant's application for leave to amend and the grounds of opposition raised to it I have directed myself in accordance with that guidance.
21. Both Defendants strongly dispute the allegation that they either owed or were in breach of any fiduciary duty to Bacon. In summary their position is this. It is common ground that when Bacon first dealt with Old Marlborough in 1958 he was an established artist even if not a commercially successful one. His ability to exploit his talent commercially depended upon forging a relationship with a gallery that could successfully market his work. Marlborough fitted that description. When Bacon contracted with Old Marlborough in 1958 there was no pre-existing relationship which could have given rise to fiduciary duties of the kind alleged whether as implied terms of that agreement or more generally. In particular the duties contended for are inherently inconsistent with the 1958 Agreement. That provided for the purchase by Old Marlborough of a series of paintings at predetermined prices leaving Old Marlborough free to dispose of them to clients for whatever it was able to achieve. It was not a commission agreement and if it was an agency at all it was one which entitled Old Marlborough to any profit over the price agreed with Bacon. To make Old Marlborough accountable for the difference between that price and the market value of the picture ultimately achieved would be to re-write the agreement and render the arrangement a commercial nonsense. The same would go for the alleged extension of the agency on these terms after 1964.
22. The abandonment of the contractual basis for the claim does not, they say, improve it. If there was after 1964 no continuing contractual relationship then there was no agency. Bacon's dealings with Marlborough were simply a series of contracts under which he sold paintings to them at agreed prices. They bought as principals and remained free to sell the paintings as they saw fit and at a profit. The services provided to Bacon by Miss Beston, though doubtless important to the smooth and uncomplicated running of his life, were hardly comparable in importance to his direct dealings with the Defendants and cannot have converted as essentially commercial relationship into a fiduciary one.
23. I propose therefore to consider in more detail the two alternative grounds upon which the claim is put in the Amended Particulars of Claim. The first is that Marlborough UK and Marlborough Liechtenstein acted as Bacon's agent in the sale of his paintings and were under a duty to account to him for the profits they received subject to a due allowance for the services they provided. The second is that Marlborough UK and Marlborough Liechtenstein purchased his works at an under-value in circumstances amounting to presumed undue influence or abuse of confidence. In so doing I propose to ignore the summary of the claim set out in Part A of the pleading which alleges an agency in paragraphs 7(2), 10 and 13(5) but seems to group everything under presumed undue influence in paragraphs 14 and 15.
24. However before coming to the detail of the pleading it is necessary to put the dispute in context. The critical allegation as I see it relates to the position at the end of the 1958 agreement. Paragraph 21 of the Amended Particulars of Claim alleges in terms that by 1964 Old Marlborough had built up a close business and personal relationship with Bacon out of which grew the non-contractual "arrangement of convenience" under which it continued to sell his paintings. This relationship is said to have given rise to fiduciary duties to act in the artist's best interests (see paragraph 23). The elements of Bacon's relationship with Old Marlborough are analysed in more detail in Annex B which I shall come to later. If the Claimant is right and a relationship of trust and confidence of the kind described existed between Bacon and the gallery in 1964 then the dealings between them which followed have to be considered in the light of that relationship. Dealings between parties in a fiduciary relationship are not treated as at arms length. Equity requires a fiduciary to justify such dealings (the fair dealing rule) and in some cases even prohibits them (the self-dealing rule). In Tate v Williamson (1866) 2 Ch.App. 55 Lord Chelmsford LC described the rule in this way:
The jurisdiction exercised by Courts of equity over the dealings of persons standing in certain fiduciary relations has always been regarded as one of a most salutary description. The principles applicable to the more familiar relations of this character have been long settled by many well-known decisions, but the Courts have always been careful not to fetter this useful jurisdiction by defining the exact limits of its exercise. Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed.
This passage is important because it illustrates the close proximity of what are now usually described as the doctrines of presumed undue influence and abuse of confidence. What is clear from Tate v Williamson is that they have a common origin and purpose in scrutinising the conduct of fiduciaries in their dealings with the confiding party. This was recognised by Lord Browne-Wilkinson in CIBC v Pitt [1994] 1 AC 200 at page 209 when considering the earlier ruling of the House of Lords in National Westminster Bank plc v Morgan [1985] AC 686 that the basis of the doctrine of presumed undue influence is not public policy:
I should add that the exact limits of the decision in Morgan may have to be considered in the future. The difficulty is to establish that relationship between the law as laid down in Morgan and the long standing principle laid down in the abuse of confidence cases viz. the law requires those in a fiduciary position who enter into transactions with those to whom they owe fiduciary duties to establish affirmatively that the transaction was a fair one: see for example Demerara Bauxite Co.Ltd. v Hubbard [1923] A.C.673; Moody v Cox [1917] 2 Ch.71 and the discussion in the Aboody case [1990] 1 Q.B. 923, 962-964. The abuse of confidence principle is founded on considerations of general public policy, viz. that in order to protect those to whom fiduciaries owe duties as a class from exploitation by fiduciaries as a class, the law imposes a heavy duty on fiduciaries to show the righteousness of the transactions they enter into with those to whom they owe such duties. This principle is in sharp contrast with the view of this House in Morgan that in cases of presumed undue influence (a) the law is not based on considerations of public policy and (b) that it is for the claimant to prove that the transaction was disadvantageous rather than for the fiduciary to pr ove that it was not disadvantageous. Unfortunately, the attention of this House in Morgan was not drawn to the abuse of confidence cases and therefore the interaction between the two principles (if indeed they are two separate principles) remains obscure.
25. If the necessary relationship of trust and confidence existed by 1964 (or indeed some later date) then any purchases by Marlborough after that date would prima facie be affected by the fair dealing rule or the presumption of undue influence. To say that Marlborough purchased as principals is not an answer to this claim. A central allegation made by the Claimant in the Amended Particulars of Claim is that the Marlborough companies acted as agents after 1964. This may have the advantage (if correct) of short-cutting the question whether Marlborough was a fiduciary. Most agents are. But it has spawned a dispute between the parties which I shall come to later as to whether in the particular circumstances of this case Marlborough as agent was under a duty not to profit without consent as alleged. Once again this is a question which cannot be answered in isolation from the relationship in which the parties found themselves at the end of the 1958 agreement. Therefore although I intend to analyse the separate parts of the Amended Particulars of Claim by reference to the causes of action I have identified and on which I have heard argument these seem to me to be essentially disputes about characterisation and allocation which ultimately may prove to be unnecessary. If the Claimant succeeds in establishing the necessary fiduciary relationship and the duties alleged then the Defendants will be required to account whether as agents or as principals.
26. In paragraph 1 of the prayer the Claimant seeks a declaration that the Defendants hold all the profits from any sales of Bacon's works (including lithographs) on constructive trust for the estate subject to an allowance equal to the commission to which an art dealer acting at the relevant time would have been entitled to charge for the services rendered. The size of any such commission is obviously a triable issue. The alleged agency is pleaded in paragraph 32 (in relation to Marlborough UK) and in paragraph 33 (in relation to Marlborough Liechtenstein). Both companies are said to have been agents in respect of the receipt, recording, storage, photography, protection of copyright and export of Bacon's work as well as its marketing and sale. Both are alleged to have been involved as agents in the production and commercial exploitation of lithographs. Marlborough UK (but not Marlborough Liechtenstein) is alleged to have been responsible for the administration of Bacon's personal affairs.
27. Various aspects of this agency are particularised in Part E2 (paragraphs 34 to 38). This describes in some detail the role of Miss Beston once Bacon had finished a painting. One of her principal roles was to arrange for the picture to be taken into the custody of the Defendants until sold. It is common ground that Bacon lived in a small flat and studio in South Kensington which had no real storage facilities. He could also be destructive. To preserve his pictures they were removed from him when complete, framed, photographed and then stored. Occasionally they were returned to him at his request for alteration or even destruction. Miss Beston is said to have made a written record of each work and the price at which it was subsequently sold based on information she received from Frank or Gilbert Lloyd.
28. The Claimant's case on sales by the Defendants as agents is now pleaded out in paragraphs 39 and 39A (Marlborough UK) and 40 and 40A (Marlborough Liechtenstein) of the Amended Particulars of Claim. Reliance is placed in paragraph 39 on statements by Marlborough UK in catalogues and correspondence that it acted as Bacon's agent. In paragraph 40 reference is made to transactions between Marlborough Liechtenstein and various third parties in which works were sold to those third parties prior to a purchase price being agreed with Bacon.
29. This matter is taken further in paragraphs 39A and 40A based on documents produced by Mr. Franz Plutschow, a Swiss accountant who has run Marlborough Liechtenstein since 1973, as part of his evidence on these applications. Mr. Vos told me that had the timing been different paragraphs 39 and 39A and paragraphs 40 and 40A would have been combined but no point is taken on that.
30. I start then with paragraph 39. The catalogues referred to in sub-paragraph (1) are at best neutral and really say nothing about the precise nature of the arrangements between Bacon and the gallery. The letter from HM Inspector of Taxes referred to in sub-paragraph (2) confirms that Old Marlborough were assisting Bacon with his tax affairs but cast no light upon the position regarding sales. Sub-paragraph (3) and (5) show that the Defendants took steps to preserve Bacon's copyright and sub-paragraph (4) relates to their assisting in the preparation of an exhibition. Dr. Reber's letter (sub-paragraph (6)) relates to Miss Beston's role in arranging for payment of the proceeds of sale of his work. I shall deal with sub-paragraph (7) later in connection with other parts of the pleading dealing with the sale to Mr. Michael Leventis. These particulars certainly confirm that Marlborough was involved in the matters I have referred to but do not give any direct assistance in relation to the central question of whether there was a sales agency. They are however relevant to the other matters relied upon in paragraph 32.
31. Paragraph 39A specifically alleges that Marlborough UK acted as Bacon's agent in offering paintings belonging to Bacon for sale to third parties and in concluding sale contracts with them. It is also alleged that Marlborough UK was the exclusive outlet for the exploitation of his work. Mr. Lyndon-Stanford quibbled with this on the basis that there were at least two instances of paintings being sold by Bacon other than through the Defendants but such occasions were rare and can really be ignored for present purposes. The allegation of agency is then particularised in relation to seven different dealings by Marlborough UK allegedly as Bacon's agent.
32. The first relates to the painting 2 studies for portrait of Richard Chopping 1978. The Claimant relies on a memorandum dated 14th June 1978 from Miss Beston to Mr. Plutschow. It refers to David Somerset and Frank Lloyd having decided to purchase the diptych instead of another picture or pictures. It goes on to ask Mr. Plutschow to arrange payment to T. Rogers from Marlborough Liechtenstein as payment on account for Bacon. The diptych was then in London to be shown to clients. There is also reference to debiting an unnamed party with a half share presumably of the cost.
33. The particulars allege that the memorandum evidences a purchase by the two named directors for their own account and that Marlborough UK (through Miss Beston) acted as agent in offering the picture to the directors for sale. In support of the alleged agency reliance is placed on what is referred to as Marlborough Liechtenstein's accounting (set out in Schedule 5 to the Amended Particulars of Claim) which is said to record that the painting was not purchased from Bacon until 6th July 1978, several weeks later. Thus it is said that Marlborough UK was negotiating the sale at a time when they did not own the painting and can therefore only have done so as agents for the true owner Bacon.
34. In order to explain the Defendants' riposte to this it is necessary for me to digress a little. The accounting by Marlborough Liechtenstein set out in Schedule 5 has a history to it which was explained to me by Mr. Lyndon-Stanford. In support of his argument that the claim was contrived he referred to the early history of the action. It was he says stage managed by the Claimant with the assistance of a New York attorney, Mr. John Eastman, who still acts for Mr. John Edwards under Bacon's will. The early correspondence between solicitors appeared to focus on the estate's inability to produce a complete record of all Bacon paintings sold through or to the Defendant companies. During Bacon's life Marlborough Liechtenstein had from time to time produced accounts of its dealings with Bacon which Mr. Plutschow says were sent to Bacon care of Miss Beston. Whether Bacon saw them is an issue. They detailed the paintings which were sold, the prices agreed with Bacon and the payments made to him. Following requests for information from the estate Mr. Plutschow says that he instructed Dr. Alfred Reber, Marlborough Liechtenstein's Swiss lawyer, to arrange a meeting with the estate 's representatives. Various meetings were cancelled and, beinh unable to obtain a meeting, Dr. Reber then sent a list of the relevant transactions to Mr. Eastman in August 1998. It was returned unread. Dr. Reber had prepared what is now Schedule 5 to the Amended Particulars of Claim. This is a more comprehensive account of the dealings between Bacon and the Defendants and was intended to provide the estate with the information which it was thought was required. In his third witness statement Mr. Plutschow says that the dates in the list of transactions are not the dates when Marlborough Liechtenstein agreed to purchase the works from Bacon but the dates when the purchase prices were credited to Bacon's account with Marlborough Liechtenstein. This was often later than the date when Frank Lloyd agreed to buy the picture.
35. Mr. Lyndon-Stanford took me to the correspondence between solicitors at the time to indicate his clients had at all times attempted to be co-operative. In fact, he says, no attempt was made to acknowledge this or to respond to requests made by Allen & Overy as to what other matters the estate wished to be satisfied about. Instead the proceedings were launched making serious allegations of the kind I have described. Mr. Lyndon-Stanford relies upon this as further evidence of a lack of sincerity on the part of the Claimant. In reply Mr. Vos says that Marlborough Liechtenstein only provided Dr. Reber' s limited accounting when forced to do so by the change in executors from Miss Beston to Professor Clarke in 1998. I prefer to express no views about the correspondence or any alleged lack of good faith on the part of the Claimant or the Defendants. I am simply not in the position on an application such as this to make findings of that sort. But what is clear and I think undisputed is that nothing in the desire of the estate to clarify what transactions had taken place between Bacon and the Defendants could justify proceedings of this kind. The relief sought goes far beyond a pure accounting exercise and as Mr. Vos accepts is dependent upon his client proving the relevant abuses of the alleged fiduciary relationship.
36. I have mentioned Dr. Reber's accounting because it is relevant to what is a common plea in relation to most of the transactions particularised under paragraph 39A and 40A. This is that purchases from Bacon were made after the date on which the sales on took place. As I have already explained this is put in issue by Mr. Plutschow in his third witness statement. But the strongest argument for the Defendants does not depend upon my accepting that evidence. As I recorded earlier in this judgment the Claimant invites the court to treat both Defendants and Frank Lloyd as the same. This is spelt out in paragraphs 8, 9, 39A(19) and 40A(20). They are said to be indistinguishable. In the face of this plea it is not in my judgment open to the Claimant to rely on the acts of the two companies, their directors and employees as constituting some form of agency for Bacon or as between each other at least in relation to transactions between him and one or other of the Defendants. Even if the correct way of reading the memorandum of 14th June 1978 is as indicating a purchase by Mr. Lloyd and David Somerset for their own account (and there is certainly nothing in the memorandum which says as much) it is quite unrealistic to regard the role of Marlborough UK (whether through Miss Beston or anyone else) as constituting an agency for Bacon. Consistent with the plea that Lloyd was Marlborough this was a sale by Bacon to Lloyd. I do not therefore propose to give leave to amend in relation to paragraph 39A(1) – (3). For the same reason I propose to disallow sub-paragraphs (4) – (6), (12) – (14) and (15) – (17) all of which deal with acquisitions by Schaefer & Co. which was a Marlborough entity and acquired the paintings for the price paid to Bacon. I will also disallow sub-paragraphs (12) – (14), (15) and (16) – (18) of paragraph 40A which relate to Marlborough Liechtenstein and concern transactions of the same kind. Mr. Vos submitted that these pleas of internal agencies within the Marlborough group were in response to the stance taken by Marlborough UK to the effect that the Defendants are separate legal persons and must be treated as such. It was therefore in essence a plea in the alternative. It seems to me that in the interests of simplicity an alternative plea of this kind should wait until a Reply. If Marlborough UK takes up its previous position in any defence it can be addressed then.
37. I come now to sub-paragraphs 39A (7) – (9). This relates to a memorandum from Miss Beston to Mr. Plutschow dated 29th September 1979 concerning the painting Lying Figure 1977. It is pleaded that the memorandum records that the painting has been sold by a third party dealer to what we now know was a Japanese museum. Reliance is placed upon the subsequent date (6th October 1979) in the Marlborough Liechtenstein accounting schedule and it is alleged that Marlborough UK (through Miss Beston) acted as Bacon's agent on the sale to the museum although what was recorded was a sale to Marlborough Liechtenstein. This example cannot be dealt with or disposed of except by analysing whether the plea of agency in cases involving sales to third parties by Marlborough Liechtenstein is a correct characterisation of the transaction and I intend to deal with it a little later in this judgment when I come to that question generally.
38. That brings me to sub-paragraphs 39A (10) – (11) which relate to the painting Carcass of Meat and Bird of Prey 1980. The memorandum relied upon is from Gilbert Lloyd to Mr. Plutschow dated 22nd July 1980. It evidences a sale of the painting to a third party for $100,000 which is referred to as a prix d'ami at the request of the artist. Bacon is recorded as having agreed to reduce "his price" to $60,000 which is a reference to what is sometimes described as the cost price paid by the gallery to Bacon. Once again the Marlborough Liechtenstein accounting is relied upon to show that the purchase from Bacon took place also on 22nd July 1980. This is said to indicate that the sale to the third party was conducted before the purchase from Bacon. Mr. Lyndon-Stanford submitted that what the memorandum clearly shows is that the entire structure of the deal including both sale price and the price to be paid to Bacon was negotiated in advance of the transaction being put into effect. This was a sale to a friend at a special price and Bacon had adjusted his price as part of it. Although this may be the correct interpretation it is not one which is open to me simply upon reading the document. Whether Bacon was aware that Marlborough Liechtenstein had made a profit of $50,000 on the sale is an issue for a trial. The same goes for sub-paragraphs 40A(8)-(10).
39. Apart from sub-paragraphs (7) – (9) that leaves only sub-paragraph (18) which is really referential to a plea about a transaction involving Mr. Michael Leventis set out in paragraph 39(7) but more particularly in paragraph 56(1). I shall deal with this transaction later in this judgment so far as it raises a specific allegation of an unauthorised profit. But reliance on it as part of paragraph 39A is based solely on it being a further example of a sale to a third party effected through an intermediate transaction with Marlborough Liechtenstein. It therefore falls to be considered along with sub-paragraphs (7) –(9).
40. I turn now to paragraph 40 dealing with Marlborough Liechtenstein's agency. The letter from Miss Beston described in sub-paragraph (1) does refer to Marlborough Liechtenstein as Bacon's agent but is not more specific than that. Sub-paragraphs (2) and (3) deal with transactions in which the ultimate purchasers were invoiced prior to Bacon being credited with the cost price and it is said prior to any purchase from him. This is the same temporal point which is raised in relation to a number of items in paragraphs 39A and 40A. Sub-paragraph (4) pleads an agreement with Galerie Lelong S.A. relating to an exhibition of Bacon's works in Paris. It shows that Marlborough Liechtenstein agreed with the gallery (with Bacon's authority) to lend various works in its ownership or possession which would be available for sale at the prices specified. Galerie Lelong would receive a commission of 20% on any sales. The agreement does not however deal with the arrangements between Bacon and Marlborough Liechtenstein although it does look as if some of the paintings to be consigned were not necessarily yet in Marlborough Liechtenstein's ownership. The position is therefore arguably similar to that in the cases pleaded under sub-paragraphs (2) and (3) where Marlborough Liechtenstein may have been dealing in paintings by Bacon which it had not yet purchased.
41. Paragraph 40A pleads in relation to Marlborough Liechtenstein that the company acted as Bacon's agent in offering paintings belonging to Bacon for sale pending concluding sale contracts with third parties in respect of such paintings. The first alleged example of this which is contained in sub-paragraphs (1)–(3) concerns the painting Self Portrait 1974;. The memorandum of 28th April 1975 records that the painting was then the property of Marlborough Liechtenstein and that a cost price of £6000 had been paid (underlined) to Bacon. An unnamed purchaser had been found for the painting for the sum of $45,000 payable in instalments. The Marlborough Liechtenstein accounting schedule, shows a date in respect of this painting of 29th April 1975 which is pleaded in the Particulars as the date of purchase. It is then pleaded that what is to be inferred from the memorandum is that the painting had been marketed by Marlborough UK on behalf of Marlborough Liechtenstein prior to its acquisition from Bacon on 29th April 1975. I shall treat this as another example of a case where the work in question is alleged to have been sold on to a third party by Marlborough Liechtenstein prior to its purchase from Bacon. I shall therefore return to it a little later in this judgment. The next item set out in sub-paragraph (4) concerns the Galerie Claude Bernard. What is referred to is a written agreement dated 8th October 1976 between the gallery and Marlborough Liechtenstein relating to the staging of an exhibition of Bacon's paintings in Paris. The agreement provides that Marlborough Liechtenstein would consign to Claude Bernard a number of works selected by the artist for the purposes of the exhibition for a period of 6 months. All the works consigned would be available for sale at the prices set out in the second paragraph of the Agreement. These prices are stated to have been agreed by the artist. In respect of each painting a net price is set out which is the price payable to Marlborough Liechtenstein in the event of a sale. The agreement then sets out a minimum selling price and an asking price which would be the prices at which the gallery would offer the work in question for sale and below which it would not be permitted under the terms of the agreement to dispose of the painting. The pleading alleges that many of the paintings consigned under this agreement did not belong to Marlborough Liechtenstein but remained at the relevant time the property of Bacon. On this basis it is to be inferred that Marlborough Liechtenstein had Bacon's authority to sell the works on his behalf in accordance with the terms of the agreement and there is in evidence a letter from Bacon indicating that he saw the agreement in draft and approved it. As in the case of the Galerie Lelong agreement the recital to the agreement certainly refers to Marlborough Liechtenstein as the owner or possessor of the paintings which suggests that there were a number of paintings included which it did not own. As and when the gallery found a buyer for the painting it would be required to sell that painting for somewhere between the asking price and the minimum selling price and would be required to pay to Marlborough Liechtenstein the relevant net price. Marlborough Liechtenstein (in the case of any paintings which they had not yet purchased from Bacon) would then pay him the cost price agreed with him. I shall therefore treat this as another alleged example of paintings being sold on to third party purchasers through the medium of a transaction involving Marlborough Liechtenstein prior to being purchased from Bacon.
42. The next item which I need to deal with is set out in sub-paragraph (11) and concerns a memorandum dated 27th January 1981 from Miss Beston to Frank Lloyd detailing various Bacon paintings available for purchase. In the middle column of the memorandum there are various comments relating to the status of each painting. Two of them are recorded as being with one of the Marlborough companies. One of them was the subject of interest by an unknown buyer and the two others are recorded respectively as sold for $182,500 and under offer for $200,000. The painting Study for Self Portrait 1981 which is recorded as sold was not accounted for according to the accounting schedule until 20th March 1981. There is a similar time lag in respect of the painting recorded as being under offer. This is said to be further evidence of the practice already referred to under which Marlborough Liechtenstein is said to have sought purchasers for Bacon paintings prior to having acquired them from the artist.
43. This brings me to consider the various sub-paragraphs of paragraphs 40, 39A and 40A that I have identified which provide instances of sales by the Defendants to third parties in cases in which it is alleged that at the time of such sale they did not yet own the Bacon painting in question and can therefore only have dealt with it as an agent for the artist. The documents relied on in these sub-paragraphs are exhibited to the witness statement of Mr. Plutschow. His evidence is that Marlborough Liechtenstein never sold Bacon's works as his agent; that it always bought them as principal and that it was free to sell them to clients at whatever price it could obtain. He says that he was in almost daily contact with Frank Lloyd from 1973 until 1992 when Mr. Lloyd was disabled by a stroke and ceased to run the Marlborough business. Lloyd would inform him when Bacon had a picture he wished to sell. Lloyd would decide if the picture was worth acquiring and agree the purchase price with Bacon. It would then be acquired by Marlborough Liechtenstein. On occasions the decision whether to purchase the painting was deferred while Marlborough Liechtenstein explored whether it could find a purchaser. If a purchaser was found the acquisition of the painting from Bacon at the price agreed with him would then go ahead. Miss Beston would tell Mr. Plutschow how Bacon wanted to be paid. Sometimes payment would be made to a Swiss bank account maintained for Bacon in the name of a Liechtenstein Stiftung. On other occasions the money would be remitted to Bacon's account in England or even paid to him in cash.
44. The allegations that from 1972 Marlborough Liechtenstein (and very occasionally Marlborough UK) sold paintings to third parties as Bacon's agents involve reliance upon the alleged difference in timing between the sale of the work to the ultimate purchaser and its acquisition by the gallery. All of the pleaded examples are intended to show the Defendants dealing with the paintings at a time when it is said they were not yet the owner. In addition there are the agreements with Galerie Claude Bernard and Galerie-Lelong. But the background is also important. In paragraph 2, 29 and Annex B of the Amended Particulars of Claim reference is also made to the 1958 agreement and to the sole and exclusive agency it provided. Mr. Lyndon-Stanford very fairly pointed out that it is not clearly alleged there was an agency under Clause 2 of the 1958 agreement but the combination of paragraphs 2 and 19 and paragraph 15 of Annex B does I think contain such a plea. Although clauses 1 and 3 of that agreement imposed an obligation upon Old Marlborough to purchase paintings up to a specified value calculated in accordance with the prescribed formula it also (in clause 2) conferred upon Old Marlborough the sole and exclusive right anywhere in the world to:
sell artistic works of any kind, produced by you; the sole and exclusive right in any part of the world to make and/or sell reproductions in any form of such works, and the sole and exclusive right to authorise any person to sell such works or make and/or sell such reproductions.
Old Marlborough was therefore able, it is said, to prevent Bacon from selling through any other means any paintings produced in a given year but not purchased pursuant to the obligations contained in clause 3. Bacon therefore had no option but to allow Old Marlborough to obtain possession of such paintings for the purpose of selling but could not require Old Marlborough to buy. If they sold one of these paintings they were required, Mr. Vos submitted, to account for the proceeds to him less a reasonable commission. That commission could not be calculated in accordance with the formula in clause 1. These prices were a special rate designed to reflect the fact that where Old Marlborough had bought the painting in advance it took the risk of being able to dispose of it at a profit. In other cases where it took no risk because it was not required to buy the painting from Bacon in any event, it could not be entitled to the same rate of discount. This, he said, is recognised in the defence served by Marlborough UK which pleads in paragraph 6.1 that it was an implied term of the 1958 agreement that Old Marlborough would account to Bacon for the sale price of any works sold on the artist 's behalf less reasonable commission. It is also supported by the evidence of Mr. Geoffrey Parton filed on behalf of Marlborough UK who says that galleries which take paintings from artists on a sale or return basis usually pay a commission on any sales made.
45. The Claimant's case is that the post 1964 dealings particularised in Parts E3 and E4 of the Amended Particulars of Claim were dealings with third parties as Bacon's agents and that the recording of the transaction as a purchase by Marlborough Liechtenstein did not accord with the reality. Particular emphasis is laid upon the following factors:
i. that Marlborough Liechtenstein had in effect the exclusive right to sell. It took physical possession of all the paintings on completion and there were at most only a handful of cases in with Bacon sold other than through the Defendants;
ii. the arrangements under which the Defendants would negotiate a sale to a third party prior to having to purchase from or account to Bacon relieved them of any risk which would be inherent in a sale to them as principal;
iii. there are references in the evidence to Bacon being offered a "net price" for the paintings which is the language of commission and agency';
iv. the agreement with Galerie Claude Bernard and Galerie Lelong confirm a sales arrangement made with Bacon's authority for the disposal of paintings of which he was still owner; and
v. all these transactions were carried out under the regime originating in clause 2 of the 1958 agreement.
46. What is I think clear is that Bacon did surrender his completed paintings to the Defendants for storage until sale. It is also obvious that he chose to have this arrangement with a gallery rather than, for example, a firm of carriers and storage agents such as T. Rogers, because he wished to be able to sell his works to the public. But the arrangements under which that might be done can obviously vary. The 1958 Agreement clearly shows that Bacon chose an arrangement under which he sold some paintings to Old Marlborough for agreed prices based on size. In respect of these Old Marlborough was entitled to retain any profit which they made on a sale in excess of the price agreed to be paid to Bacon. They were not limited under the terms of the agreement to receiving commission or to reasonable remuneration for their work. But if Mr. Vos is right in his construction of the 1958 agreement a different regime applied to other sales. Old Marlborough was not contractually entitled to purchase such works at fixed prices. It was limited to a reasonable commission. Mr. Lyndon-Stanford argued that clause 3 did not impose a maximum but rather a minimum limit and that all sales took place in accordance with that provision. But I have no real evidence about that and any such evidence would almost inevitably raise a series of triable issues. For the same reason I decline to express any view about the construction of the 1958 agreement or the manner in which it was operated. These are matters for a trial.
47. The Defendants' primary submission is that there is nothing to support any pre-existing fiduciary relationship between Bacon and Frank Lloyd prior to the making of the agreement in 1958 or the fiduciary duties not to profit which are alleged. The allegation of presumed undue influence in relation to the making of that agreement has been abandoned in the Amended Particulars of Claim. Bacon simply moved to Old Marlborough from another gallery. The existing pleading relies upon business efficacy as the basis of an implied term in the 1958 agreement that Old Marlborough would not allow its interests and duties to conflict. This is expanded upon in paragraph 11 partly in reliance upon the wider range of services provided by Old Marlborough under the Management Contract which I described earlier in this judgment. Although the allegation of implied terms if now abandoned in what has become Annex B to the Amended Particulars of Claim, the plea remains (Annex B, para 8) that during the Old Marlborough period Miss Beston arranged for the collection, photography and storage of Bacon's completed works until sale. It is also still alleged (Annex B, para 11) that Old Marlborough (through Frank Lloyd, Harry Fischer or Miss Beston) performed the services for Bacon described in paragraph 11 of the existing Particulars of Claim.
48. In paragraph 13 of Annex B it is pleaded by way of amendment that the fiduciary duties owed to Bacon by Old Marlborough included a duty not to allow its personal interests and its duties to Bacon to conflict and a duty not to profit from Bacon without his fully informed consent. These duties are alleged in paragraph 12 to arise by reason of Old Marlborough's "said agency", its "professional and personal proximity to Bacon" and the trust and confidence which by 1964 Bacon reposed in Old Marlborough. Reference to the "said agency" is a reference back to paragraphs 6 and 7 which plead:
6. The Claimant admits that the 1958 Agreement was terminated on the 12 th June 1964, as Marlborough UK contends. By that time, Old Marlborough had built up a close business and personal relationship with Bacon. From then there existed between Old Marlborough and Bacon an arrangement of convenience whereby Bacon allowed Old Marlborough to be the sole agent for the commercial exploitation of his artistic output.
7. Between 1964 and 1968, Old Marlborough acted as Bacon's sole and exclusive agent as aforesaid. In particular, Marlborough acted for Bacon in relation to the following matters:-
(1) The receipt, recording, photography, storage and protection of Bacon's work;
(2) The cataloguing, exhibition and marketing of Bacon's work;
(3) The sale of Bacon's work;
(4) Protection of copyright in Bacon's works; and
(5) The administration of Bacon's personal affairs.
49. This arrangement of convenience (even if not contractual) is not suggested in the pleading to have been other than similar to the arrangements under the terms of the 1958 agreement. In the existing Particulars of Claim it is pleaded that the sales agency and management services provided between 1964 and 1968 remained the same as before. The paintings were still being " acquired and/or sold by or through Old Marlborough": see Annex B, para 8(2).
50. On the basis that there was no discernible change in the way in which Bacon dealt with Old Marlborough during the entirety of the Old Marlborough period I have been invited to examine with some care the basis upon which Old Marlborough came to be subject to the fiduciary duties pleaded in Annex B, para 13. The relationship between Bacon and Old Marlborough began as a contractual one under the terms of the 1958 agreement. Where the parties' rights and obligations are governed by contract the courts are cautious when faced with any attempt to superimpose some additional fiduciary obligations. In Henderson v Merrett Syndicates [1995] 2 AC 145 and page 206 A-D Lord Browne-Wilkinson summarised the position in this way:
the derivation of the general principle from fiduciary duties may be instructive as to the impact of any contractual relationship between the parties on the general duty of care which would otherwise apply. The phrase "fiduciary duties" is a dangerous one, giving rise to a mistaken assumption that all fiduciaries owe the same duties in all circumstances. That is not the case. Although, so far as I am aware, every fiduciary is under a duty not to make a profit from his position (unless such profit is authorised), the fiduciary duties owed, for example, by an express trustee are not the same as those owed by an agent. Moreover, and more relevantly, the extent and nature of the fiduciary duties owed in any particular case fall to be determined by reference to any underlying contractual relationship between the parties. Thus, in the case of an agent employed under a contract, the scope of his fiduciary duties is determined by the terms of the underlying contract. Although an agent is, in the absence of contractual provision, in breach of his fiduciary duties if he acts for another who is in competition with his principal, if the contract under which he is acting authorises him so to do, the normal fiduciary duties are modified accordingly: see Kelly v Cooper [1993] A.C. 205, and the cases there cited. The existence of a contract does not exclude the co-existence of concurrent fiduciary duties (indeed, the contract may well be their source); but the contract can and does modify the extent and nature of the general duty that would otherwise arise.
In Hospital Products Ltd v United States Surgical Corporation (1984) 156 C.L.R. 41 and page 97 Mason J in the High Court of Australia said this:
That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction.
This passage was approved by the Privy Council in Kelly v Cooper [1993] A.C. 205 , another case in which the usual duties of an agent were radically restricted by the terms and circumstances of her appointment.
51. The Defendants submit that clause 3 of the 1958 agreement allowed Old Marlborough to purchase Bacon's paintings for prices to be determined in accordance with an agreed formula. Clause 3 was not a commission agreement and imposed no restriction upon Old Marlborough as to the price or other terms upon which it could subsequently dispose of the paintings. Old Marlborough was free to deal with the paintings it bought as it thought fit. Nor was it under any duty to account to Bacon for the ultimate sale price to its clients. On the basis that clause 3 was an all embracing provision relating to all sales of Bacon paintings then the fiduciary duties pleaded under the existing Particulars of Claim and repeated for the period from 1964 in the Amended Particulars of Claim would totally re-write that contract. Old Marlborough would become no more than a commission agent and would be required to account to Bacon for the ultimate sale price of the paintings. If the premise contained in this submission is made out I would require to be persuaded that any such fiduciary obligations could be implied as part of those contractual arrangements. But as already mentioned the Claimant contends that Clause 2 of the agreement does deal on a commission basis with sales outside the Clause 3 limits and if that is right then the fiduciary duties alleged do fit neatly into that part of the contractual arrangements. The problem identified in the Hospital Products case does not exist. The question which will have ultimately to be resolved in this case is whether the sales of Bacon paintings after 1964 (where clause 3 no longer applied) continued to be governed by that or by the clause 2 regime and why.
52. The resolution of that question cannot be achieved simply by the construction of the 1958 agreement against the background of the circumstances in which it came to be made. As I indicated earlier in this judgment an important and perhaps almost the central question will be to determine how Bacon's relationship with the Marlborough galleries stood and developed after the termination of the 1958 agreement. The Defendants' submissions based on Hospital Products, attractive as they are, depend upon one taking the view that nothing changed in Bacon's relationship with Old Marlborough between 1958 and 1964. But the pleaded case is that it did change. There developed, it is said, a relationship of trust and confidence under which Bacon relied upon Lloyd, Fischer and Old Marlborough "to advise and guide him in relation to his career and to advance and protect his interests"; see Annex B para. 4(1). It is also pleaded that Lloyd, Fischer and Miss Beston knew this. In the current defence of Marlborough UK (paragraph 14.1) this is effectively admitted although it is denied that Bacon placed exclusive reliance on their advice and guidance or that such advice and guidance as they gave created a confidential relationship. Mr. Vos took me to a number of documents which are in evidence and which he says support his client's case that there was by 1964 a confidential and fiduciary relationship of the kind pleaded. They include a Theodore Goddard internal note dated 10th June 1964 which records that Bacon is "wholly in the hands of Marlborough". Similar references to Marlborough and Miss Beston managing or organising Bacon's affairs can be found in notes and correspondence right up to his death. It is pleaded (see Parts C and D of the Amended Particulars of Claim) that the fiduciary relationship was transposed to Marlborough UK and after 1972 to Marlborough Liechtenstein and that both companies through Mr. Lloyd, Miss Beston and others continued to manage most aspects of Bacon's artistic and personal life including his finances and his tax affairs (see Amended Particulars of Claim Parts E1 to E6). I decline to express any view about this evidence. I accept the submissions of Mr. Briggs and Mr. Lyndon-Stanford that documents taken in isolation can give a false and misleading picture of what was actually taking place. But because I have to decide as part of this application whether there is an arguable case for a fiduciary relationship in 1964 and thereafter on the basis pleaded in Annex B paragraph 4 then I can say that I am satisfied on the material presented to me that there is at least an arguable case that such a relationship existed sufficient to satisfy the threshold tests in CPR Part 3 and Part 24.
53. In these circumstances it is not possible for me to accede to the Defendants arguments that on a summary basis I should regard Bacon's dealings with Marlborough after 1964 as a series of contracts free from any fiduciary duties of the kind alleged or even to resolve the question whether Marlborough bought and sold as principals. These questions seem to me to depend upon a detailed examination of Bacon's relationship and dealings with Marlborough both before and after 1964. If the Claimant is right about a fiduciary relationship subsisting in 1964 whether by virtue of an agency under clause 2 of the 1958 agreement or a combination of that and the matters pleaded in Annex B paragraphs 4 and 11 and after 1968 in Parts E1 to E6 then from 1964 each of the successive Marlborough companies were as between themselves and Bacon only entitled to deal with him as fiduciaries. They no longer had the protection of clause 3 and but for some new contractual arrangement on similar lines they would be required to account for their profits. The Defendants' case is that those arrangements were put in place in the form of a series of principal to principal sales as and when each painting came to be sold. An arrangement of that kind could obviously be created but only, says the Claimant, if Bacon gave his full free and informed consent to the arrangements. In my judgment that is not an issue which I can resolve on an application of this kind.
54. It is worth recording that the Defendants have adduced evidence which does indicate that Bacon was on a number of occasions fully aware of the discrepancy in price between what he sold his paintings to Marlborough Liechtenstein for and what they were able to obtain from the ultimate purchaser. The Claimant has produced no evidence to contradict this other than the statement of truth made by Professor Clarke. In particular no evidence has been adduced to support the statement contained in paragraph 50 of the Amended Particulars of Claim that Bacon would not have consented to the profits made by Marlborough Liechtenstein had he been fully informed and properly advised. But again these are matters for a trial. If the alleged fiduciary relationship is established then the burden will shift to the Defendants to show that there was informed consent. That is not a matter which I either can nor need to resolve on this application.
55. One of the transactions referred to in the pleadings (Amended Particulars of Claim para. 56(1)) concerns Michael Leventis, a friend of Bacon, who purchased the picture Study of a Man and Woman Walking 1988. In so far as this is relied upon as another example of Marlborough Liechtenstein dealing with Bacon's works as agents then it gives rise to a triable issue for the reasons already explained. But it is also pleaded as a specific example of an instance when Marlborough Liechtenstein made a profit on a sale which was neither disclosed to nor authorised by Bacon.
56. The allegation is that Bacon agreed to arrange a special price for Mr. Leventis. Mr. Leventis went to see the picture which was at the gallery in London and was told by Miss Beston that Marlborough would give him a special deal and would waive its commission. She said that the painting was worth $1.7m but that the gallery would sell it to Mr. Leventis for $1m. It was later sold to Mr. Leventis at this price. In the light of Miss Beston's agreement to waive its commission Mr. Leventis thought that Bacon would receive the full $1m for the picture. In fact as the documents show Bacon received only $500,000 out of the purchase price.
57. These allegations were objected to by Mr. Lyndon-Stanford as being over blown and scandalous. They are based upon information from Mr. Leventis given originally to the firm of Payne Hicks Beach (who acted for the estate) and which will, I am told, in due course be contained in a witness statement. At the moment there is no evidence before me from Mr. Leventis but only a witness statement from Mr. Lomas of Freshfields deposing to what Mr. Leventis has said. This stops short of confirming the last sentence in paragraph 56(1) that Bacon did not give his fully informed consent to Marlborough receiving $500,000 from the sale proceeds.
58. Mr. Vos accepted that this sentence was based only on inference. Mr. Leventis was not able to say for certain that Bacon did not consent to what Marlborough Liechtenstein did but it is to be inferred from his being told by Miss Beston that Marlborough would waive its commission that Bacon was not told of the true nature of the arrangements. Mr. Lyndon-Stanford relied upon an attendance note prepared by Theodore Goddard dated July 1989 which records Bacon's decision to change his will and to omit Mr. Leventis as an executor. The reason for this was that Mr. Leventis subsequently sold the painting for a profit having been able to buy it on favourable terms. The attendance note records Bacon as referring to his having sold the painting to Leventis at a "reasonable price". This is said to indicate that Bacon was aware of the price paid by Leventis and therefore of the profit made by Marlborough. It may very well be that Mr. Lyndon-Stanford is right about this but again this is an issue for trial.
59. In the light of my judgment that there is a triable issue as to the existence of a fiduciary relationship in 1964 and thereafter, I can deal with this aspect of the case very shortly. If proved the fiduciary relationship would require the successive Marlborough companies to justify any purchases at the prices they paid for as long as the fiduciary relationship subsisted. It will be the Claimant's contention that this continued until Bacon's death. After 1964 Old Marlborough through Miss Beston and others continued to act in the management of Bacon's artistic and personal affairs (Amended Particulars of Claim paragraph 22) and this state of affairs is said to have persisted thereafter under both Marlborough UK and Marlborough Liechtenstein (Amended Particulars of Claim paras 26 and 28).
60. Mr. Briggs submitted to me that I could resolve the issue of undue influence on the basis that if the fiduciary duties pleaded were not part of the "arrangement of convenience" between Bacon and the gallery then it was difficult to see how a case of presumed undue influence could arise. I can see the force of that submission but the premise upon which it is based cannot (for the reasons I have given) be established on this application. Nor is the alleged fiduciary relationship based solely on the continuation of a sales agency. It depends both on that and the wider relationship referred to in Annex B, paras 4,7 and 11 and Part B of the Amended Particulars of Claim. This relationship was transferred through Frank Lloyd and others to Marlborough UK and from 1972 Marlborough Liechtenstein and continued from then on in the same vein: see Amended Particulars of Claim Sections E1 – E6. Clearly the case on presumed undue influence and abuse of confidence arises out of the same factual relationship. In Re Brocklehurst [1978] Ch. 14 at page 42 Bridge LJ described the essential features of the necessary relationship in these terms:
In my view, the distinguishing characteristics which are more helpful in enabling the court to recognise a relationship between donor and donee giving rise to the presumption are a duty on the donee to advise the donor, or a position of actual or potential dominance of the donee over the donor. In all the decided cases to which we have been referred one or other or both of these characteristics can be discerned.
But the courts have also warned of the dangers of too strict a formulation. In Goldsworthy v Brickell [1987] Ch. 378 at page 401 Nourse LJ said this:
At least since the time of Lord Eldon, equity has steadfastly and wisely refused to put limits on the relationships to which the presumption can apply. Nor do I believe that it has even been distinctly held that there is any relationship from which it cannot in any circumstances be dissociated. But there are several well defined relationships, such as parent and child, superior and member of a sisterhood, doctor and patient and solicitor and client, to which the presumption is, as it were, presumed to apply unless the contrary is proved. In such relationships it would seem that you only have to look at the relative status of the parties in order to presume that the requisite degree of trust and confidence is there. But there are many and various other relationships lacking a recognisable status to which the presumption has been held to apply. In all of these relationships, whether of the first kind or the second, the principle is the same. It is that the degree of trust and confidence is such that the party in whom it is reposed, either because he is or has become an adviser of the other or because he has been entrusted with the management of his affairs or everyday needs or for some other reason, is in a position to influence him into effecting the transaction of which complaint is later made. And with respect to certain arguments which have been advanced in the present case it is here necessary to state the obvious, which is that in cases where functions of this sort constitute the substratum of the relationship, there is no need for any identity of subject matter between the advice which is given or the affairs which are managed on the one hand and the transaction of which complaint it made on the other. Nor, as will be shown, is it necessary for the party in whom the trust and confidence is reposed to dominate the other party in any sense in which that word is generally understood.
It will be a matter for the trial as to whether a relationship of this kind existed and if so whether it was abused.
61. In paragraphs 32 and 33 of the Amended Particulars of Claim it is alleged that both Marlborough UK and Marlborough Liechtenstein acted as Bacon's agent in the production, distribution and commercial exploitation of lithographs. It is further alleged (Amended Particulars of Claim para 57) that they have failed to account for some lithographs "made or authorised to be made by them and/taken into their possession or control". Particulars are given in Part E5 of various editions of lithographs known to exist and schedules of various editions and their dates, numbers and publishers are contained in Schedules 3 and 3A to the Amended Particulars of Claim.
62. The pleading accepts that the production of lithographs was authorised and indeed clause 2 of the 1958 agreement provided a contractual authority to that effect. The claim is that the lithographs were produced in effect for Bacon and the Defendants must account to his estate for the lithographs or their proceeds unless they can show that Bacon authorised them to keep them. In some cases this was done but the estate does not have a complete record of which editions were given away and requires Marlborough to account. The claim is therefore a claim to ownership of the lithographs or the proceeds of their sale. It is not a claim for breach of copyright.
63. A considerable amount of evidence has been produced as to whether Marlborough UK as opposed to Marlborough Liechtenstein produced lithographs and as to whether Bacon agreed to transfer ownership in particular editions. I do not intend to enter into an examination of that evidence short of a trial and Mr. Briggs accepted that there were obvious issues about consent. His principal argument was that the claims were time barred but I shall come to that when I consider the question of limitation.
64. The proposed amendments do not add or substitute new claims within the meaning of CPR. Rule 17.4 and limitation is not therefore an objection to my granting permission to amend. It is a matter relied upon by the Defendants as part of their application for judgment under Part 24 and to strike out under Part 3.4.
65. The Defendants' case is that each of the claims set out in the prayer based on the alleged breaches of fiduciary duty and presumed undue influence is now time barred because a Court of Equity would before 1st July 1940 have applied the statutory time limits to those claims by analogy: see Limitation Act 1980 Section 36(1)(f). I was referred by Mr. Cunningham and Mr. Briggs to the decision of Mr. Jules Sher Q.C. (sitting as a Deputy High Court Judge in the Chancery Division) in Coulthard v Disco Mix Club Limited [2000] 1 WLR 707 where he had to consider the application of the statute by analogy to claims for breach of fiduciary duty in relation to some management and agency agreements between a disc-jockey and the defendant companies. Under these agreements the defendants were to market and exploit remixed sequences of popular songs prepared and recorded by the plaintiff. In the action the plaintiff sought an account based on allegations of deliberate under-accounting in breach of fiduciary duty. The breaches of duty were alleged to have been dishonest and the defendants were said to be liable to account as constructive trustees for certain monies in their hands.
66. The learned Deputy Judge held that the claims were time barred by analogy because the claims for failure to account were essentially contractual and the allegations of breach of fiduciary duty were based upon the same facts as a common law claim for fraud to which a six year limitation period would apply. Equity would therefore follow suit. The breaches of fiduciary duty were no more than the equitable counterparts of the claim at common law. In that case reliance was also placed upon the allegation of a constructive trust as attracting s.21 of the 1980 Act which provides that no limitation period shall apply to a claim by a beneficiary under a trust in respect of a fraudulent breach of trust or to recover from the trustee trust property in the possession of the trustee or converted to his use. Section 38 of the Act defines "trust" and "trustee" by reference to s.68 (17) of the Trustee Act 1925. This extends the meaning to include "implied and constructive trusts". Mr. Sher Q.C. rejected reliance upon s.21 on the basis that the constructive trust pleaded was essentially remedial in nature or to use his words "was nothing more than a formula for equitable relief". It was to be contrasted with a true constructive trust which arose when a person had already assumed the duties of a trustee or fiduciary and had then received the trust property as a result of a transaction "by which both parties intended to create a trust from the outset". In reaching this conclusion he relied upon the earlier decision of the Court of Appeal in Paragon Finance plc v D.B. Thakerar & Co. [1999] 1 AER 400 in which the plaintiff also sought the protection of s.21 in relation to a remedial constructive trust. At page 409 Millett L.J said this:
A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. In the first class of case, however, the constructive trustee really is a trustee. He does not receive the trust property in his own right but by a transaction by which both parties intend to create a trust from the outset and which is not impugned by the plaintiff. His possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust. Well-known examples of such a constructive trust are McCormick v Grogan (1896) LR 4 HL 82 (a case of a secret trust) and Rochefoucald v Boustead [1897] 1 Ch 196 (where the defendant agreed to buy property for the plaintiff but the trust was imperfectly recorded). Pallant v Morgan [1952] 2 All ER 951, [1953] Ch 43 (where the defendant sought to keep for himself property which the plaintiff trusted him to buy for both parties) is another. In these cases the plaintiff does not impugn the transaction by which the defendant obtained control of the property. He alleges that the circumstances in which the defendant obtained control make it unconscionable for him thereafter to assert a beneficial interest in the property.
The second class of case is different. It arises when the defendant is implicated in a fraud. Equity has always given relief against fraud by making any person sufficiently implicated in the fraud accountable in equity. In such a case he is traditionally though I think unfortunately described as a constructive trustee and said to be 'liable to account as constructive trustee'. Such a person is not in fact a trustee at all, even though he may be liable to account as if he were. He never assumes the position of a trustee, and if he receives the trust property at all it is adversely to the plaintiff by an unlawful transaction which is impugned by the plaintiff. In such a case the expressions 'constructive trust' and ' constructive trustee' are misleading, for there is no trust and usually no possibility of a proprietary remedy; they are 'nothing more than a formula for equitable relief': Selangor United Rubber Estates Ltd v Cradock (No.3) [1968] 2 All ER 1073 at 1097 [1968] 1 WLR 1555 at 1582 per Ungoed-Thomas J.
……………
The importance of the distinction between the two categories of constructive trust lies in the application of the statutes of limitation. Before 1890 constructive trusts of the first kind were treated in the same way as express trusts and were often confusingly described as such; claims against the trustee were not barred by the passage of time. Constructive trusts of the second kind however were treated differently. They were not in reality trusts at all, but merely a remedial mechanism by which equity gave relief for fraud. The Court of Chancery, which applied the statutes of limitation by analogy, was not misled by its own terminology; it gave effect to the reality of the situation by applying the statute to the fraud which gave rise to the defendant's liability.
Millett LJ went on in his judgment to express the view that the distinction between true and remedial constructive trusts did survive the passing of the 1939 Limitation Act so as to exclude the protection of the latter by what is now s.21 of the 1980 Act. This view was followed and applied by Mr. Sher Q.C. in Coulthard. At page 732 he said:
What the Paragon Finance case makes clear is that the critical boundary in these cases lies between those cases where the defendant is a true trustee (be it of an express trust or a constructive trust) and those where he is not. In the Nelson v Rye relationship, which is the same in this respect as Mr. Coulthard's and Mr. Prince's relationship, the relationship is not that of trustee and beneficiary. The touchstone of a true trusteeship is trust property. There is no allegation or evidence (save possibly in two minor respects) that D.M.C. was required to keep moneys reaching it as a result of commercial exploitation of Mr. Coulthard's mixes separate from its own moneys. Everything in the pleading and evidence is consistent with the idea that D.M.C. was free to mix such moneys with its own and then account at some later point in time to Mr. Coulthard, after deduction of the appropriate commission. In its essence the commercial relationship engendered personal claims between them rather than proprietary ones. At no stage in Mr. Coulthard's pleading or evidence is an asset or fund identified as an asset or fund which is or should have been held in a trustee capacity. That is why this dispute attracts the application of the six year limit under section 5 of the Act, directly or by analogy. Had there been a true trust of property alleged, the relevant s ection would have been section 21; and to the extent to which there was fraud, or a receipt by the trustee and conversion to his use, there would not have been any limitation defence.
67. Based on this the Defendants contend that the constructive trusts pleaded in paragraphs 1 and 2 of the prayer are of the remedial kind and the claims for breach of fiduciary duty which underpin them are now time barred more than six years after Bacon's death. This applies to both the claims in breach of fiduciary duty and abuse of confidence and also to the claims for presumed undue influence.
68. The Claimant's response to this is that the constructive trusts alleged are not merely remedial as such but arise from a pre-existing fiduciary relationship under which the Defendants were obliged to account for all their dealings with Bacon's work and for all monies received: see Amended Particulars of Claim paragraph 46(3). Their duties therefore related to the use of his property. They received it as fiduciaries and were in fact trustees of it liable to account for its subsequent use and disposal. It does not matter, says Mr. Vos, that there was no express requirement to keep the proceeds of sale separate. That follows from the existence of the trust. The need to identify an obligation to keep monies separate may be essential to convert a contractual obligation to account into a claim for a constructive trust but it is unnecessary when it is clear that the trust relationship in respect of the property has always existed. In respect of undue influence it is clear from the authorities, he said, that the Courts of Equity did not and would not have applied the statute by analogy before 1940.
69. I am very far from satisfied that a Court of Equity would ever have barred a claim in undue influence by analogy with the statute. No case has been found in which this was done and in Coulthard Mr. Sher Q.C. seems to have accepted (see page 725G) that the only available defences would be laches and acquiescence. Further confirmation of this can be found in Allcard v Skinner (1887) 36 Ch.D.145 at pages 174 and 186. I am not therefore prepared to strike out these claims on the basis that they are time barred. Although the arguments relating to breach of fiduciary duty are more difficult I am again not satisfied that this is a case which clearly falls into the category of a remedial as opposed to a true constructive trust and I prefer to reserve that question to the trial. Given that the claims based on presumed undue influence must go forward I can also see no advantage in attempting to eliminate the claims for breach of fiduciary duty which are based on essentially the same facts. This includes the claims to the lithographs and the Prudence Cuming archive. In these circumstances it is unnecessary for me to deal further with the Claimant 's alternative plea of concealment contained in Part E 12 other than to record that sub-paragraphs 71(1) to (3) which refer to the 1992 £1.6m invoice are no longer relied upon as instances of deliberate concealment and will be deleted from the pleading when served.
70. I now turn to some matters of detail affecting the form of the amended pleading. As I indicated earlier in this judgment I am concerned that this pleading should be easily intelligible and avoid later disputes as to the true scope and nature of the Claimant's case. With this in mind the following matters need to be re-considered before I am prepared to give permission to amend.
71. The summary of the case contained in paragraphs 1-15 should be deleted. It is unnecessary and because it compresses and summarises the main components of the claim it may lead to disputes and misunderstandings.
72. Part B: The Old Marlborough Period: the pleading should clearly address the position not only as at the end of this period but also in 1964 when a fiduciary relationship and agency is alleged to have existed. For the reasons explained earlier the Defendants are entitled to know in clear terms precisely what fiduciary duties are alleged to have existed in the period from 1964 to 1968. It is also unsatisfactory for paragraph 23 of the Amended Particulars of Claim to plead duties in rather general terms and for paragraph 13 of Annex B to plead a number of specific duties. It should be made clear whether paragraph 23 is merely a shorthand for paragraph 13. Annex B also needs to be tidied up and re-arranged. The relationship between paragraphs 13 and 14 is awkward (why do they need to be separate paragraphs?) and the references to a "said agency" should be eliminated. This is a point which is of general application to the proposed pleading. References to "said" should (unless clearly unnecessary) be replaced by references to the agency referred to in a stated paragraph. The pleading of clause 2 of the 1958 agreement in paragraphs 19 and 22(3) of the Amended Particulars of Claim should also be revised to expressly plead the alleged continuation of those arrangements after 1964.
73. Those parts of section E which are intended only to serve as particulars of primary allegations in other paragraphs should be clearly identified as such and that part of the pleading re-ordered. The opportunity should be taken to amalgamate the remaining parts of paragraphs 39 and 39A and 40 and 40A.
74. Subject to the changes referred to above I will grant the Claimant permission to amend the Particulars of Claim. This will be on the usual terms as to costs thrown away. It follows that the Part 24 and the Part 3.4 applications fail and will be dismissed.
IN THE HIGH
COURT OF JUSTICE
CHANCERY DIVISION
Royal
Courts of Justice
Strand, London, WC2A 2LL
Date: 15th May 2001
B e f o r e :
THE HONOURABLE MR. JUSTICE PATTEN
- - - - - - - - - - - - - - - - - - - - -
(Claimant)
- and -
(Defendants)
- - - - - - - - - - - - - - - - - - - - -
MR. G. VOS QC Mr. D. Foxton and MR. A. ROBB (instructed by Freshfields Bruckhaus Deringer for the Claimant)
MR. M. BRIGGS QC and MR. H. TOMLINSON (instructed by Harbottle & Lewis for the First Defendant)
MR. M. LYNDON-STANFORD QC and MR. M. CUNNINGHAM QC (instructed by Allen & Overy for the Second Defendant)
Click on Url: Clarke v Marlborough Fine Art (London) Ltd and another
- - - - - - - - - - - - - - - - - - - - -
1. This is the first Case Management Conference in this action which I have conducted since I was nominated by the Vice-Chancellor to deal with this case. The action was commenced and Particulars of Claim were served in March 2000. Defences have been served by both Defendants. The Claimant now seeks directions in respect of mutual disclosure, inspection and expert evidence with a view to a trial commencing in January 2002 before me. The Claimant's current estimate of length is 12 weeks.
2. This ruling however is limited to the Claimant's principal application which is for permission to amend the Particulars of Claim. This is opposed by both Defendants principally on the basis that the Amended Particulars of Claim as served in draft do not disclose reasonable grounds for bringing the claim within the meaning of CPR Rule 3.4 (2)(a). To cater for all possibilities they have also issued applications under Part 24 for the summary disposal of the action in their favour and as an alternative for the striking out of the existing Particulars of Claim should I refuse Mr. Vos the permission to amend which he seeks. It is I think common ground that I should first consider Mr. Vos' application for permission to amend and in so doing rule upon the Defendants' challenge to the viability of the claim. If I accede to that application then the Part 24 applications necessarily fail. If I refuse that application so that Mr. Vos is left to rely upon the existing Particulars of Claim then it may become necessary for me to deal with the Defendants' applications to strike out that pleading and to dismiss the action even in its current form.
3. I say "may be" because if Mr. Vos is right and the new pleading adds little in substance to the old, it is difficult to see how the original pleading could survive a ruling by me that the draft Amended Particulars of Claim do not disclose reasonable grounds for bringing the claim.
4. It is necessary to begin by saying a little about the background to these proceedings. The Claimant, Professor Brian Clarke, brings this action as the executor of the estate of the late Francis Bacon who died in 1992. It is I think beyond dispute that Bacon was one of the greatest artists of the 20 th century but both he and his paintings were controversial in their time and public recognition of his worth was not immediate. Bacon was born in Dublin in 1909. He came to London before the Second World War and lived here for the remainder of his life. By the time of the war he was producing paintings which have subsequently been recognised to be of museum quality. A notable example is Three Studies for Figures at the Base of a Crucifixion, painted in 1944, which is now in the Tate Modern Gallery.
5. In 1958 (when he was 49 years of age) he entered into an agreement with Marlborough Fine Arts Limited (referred to in the pleadings as Old Marlborough) for a period of 10 years under which that company agreed to purchase a number of his works for specified prices and to have the sole and exclusive right to sell and authorise the sale of artistic works by him and to make and/or sell or to authorise the making and/or sale of reproductions of such works. I shall return to these provisions later in this judgment. Old Marlborough ceased trading in 1968 and was dissolved in 1971. Its business was taken over by the First Defendant, Marlborough Fine Art (London) Limited which I shall refer to as Marlborough UK. It is alleged by the Claimant (and not I think disputed) that both companies were owned and run by the same individuals. Principally these were Mr. Frank Lloyd, his son Mr. Gilbert Lloyd, Mr. Harry Fischer and David Somerset, now the Duke of Beaufort. The Second Defendant, which I shall refer to as Marlborough Liechtenstein, started to trade in about 1972 and was at all material times under the same beneficial ownership and control as Marlborough UK. As part of his case the Claimant relies upon a ruling of the Surrogate's Court of New York in the case of Rothko v Marlborough Gallery Inc. where the court said of Frank Lloyd that:
The Marlborough organization is a maze of 21 legal entities. Except for non-majority participations in three galleries, the ultimate interests in the organisation as well as the three mentioned galleries which are not the respondents here rest in a foreign inter vivos trust and 'stiftung'. The beneficiaries of these holdings are respondent Frank Lloyd … and members of his family alone … Lloyd authoritatively asserted at the trial that he alone dominated and controlled all Marlborough operations. All consequential decisions were made by Lloyd and all employees acted pursuant to his instructions. The finances of the various Lloyd-controlled companies were intermingled and paintings were invoiced to and from these companies as convenience served ... The conclusion must be that Lloyd is Marlborough.
During the course of his submissions Mr. Lyndon-Stanford invited me to treat both Defendant companies to this action in the same way and to regard Bacon's dealings with them as effectively dealings with Frank Lloyd.
6. The 1958 Agreement was terminated by Bacon in 1963 so as to allow him to deal through a Swiss gallery but the arrangements with Old Marlborough were extended by agreement until 1964 purportedly to allow Bacon's tax affairs and accounting problems to be resolved. In fact the intended arrangement with the Swiss gallery seems never to have materialised. It is now common ground that from June 1964 onwards the relationship between Bacon and the Defendants was not governed by a contract derived from or corresponding to the terms of the 1958 agreement. What is alleged by the Claimant is that there continued to exist between the parties an arrangement or relationship which was fiduciary in nature and which imposed upon the Defendants an obligation of loyalty to Bacon requiring them to place his interests before their own and to disclose to him and to obtain his consent to the profits which they received when they sold on his paintings to their third party clients. It is also alleged that this fiduciary relationship was such as to invalidate any sales of paintings between Bacon and the Defendant companies as principals except upon proof that Bacon entered into these sales freely and independently and on a fully informed basis. This, says the Claimant, can only be established in this particular case by evidence that Bacon was informed by Marlborough and understood that his paintings would be sold on for prices considerably in excess of what the Defendants had themselves agreed to pay.
7. In their existing form the Particulars of Claim place considerable (and I think primary) emphasis upon the 1958 Agreement as the source of the Defendants' ; alleged fiduciary obligations to Bacon. In paragraph 3 it is pleaded that by the late 1950's Bacon was a "well recognised" artist but that his earnings from painting were modest. Between April 1956 and October 1958 when he entered into the agreement with Old Marlborough the proceeds of sale from his work totalled only £1725. This plea remains in the amended draft (paragraph 17). The 1958 Agreement to which I have already referred provided Bacon with an immediate payment of £2500 which was stated to be a loan repayable by 1st February 1959 in paintings selected by Old Marlborough from Bacon's current and future production. The agreement specifies a scale of payment or value for the paintings ranging from £165 for a painting 24 x 20 inches in size to £420 for a painting measuring 78 x 65 inches. I am told by Mr. Vos that payment according to size is not uncommon in dealings between artists and their galleries. In addition Old Marlborough was entitled under the agreement to select paintings in each year up to a value of £3500 based upon the same price formula.
8. This agreement is alleged (in paragraph 6 of the Particulars of Claim) to have been subject to a number of implied terms including that Old Marlborough would make and render full and accurate records of all works sold or authorised to be sold on Bacon's behalf and would account for all sums generated as a result. They would also exercise all reasonable skill and care in promoting his career and would not put themselves in a position where their duties might conflict with their own interests.
9. It is then alleged that both before and after entering into the 1958 Agreement Bacon relied upon Frank Lloyd and Harry Fischer to advise and guide him in his career and to advance and protect his own interests. In so doing he reposed trust and confidence in them. He was, it is then alleged, Bohemian, lacking in business and financial experience and without the benefit of any independent advice. The 1958 Agreement contained no provision for a price increase during its term (which taking into account a provision for early termination was for a minimum of 5 years) and therefore took no account of the possibility that Bacon might become commercially very successful during that time. In these circumstances the agreement was to be presumed to have been obtained by undue influence and was voidable in equity.
10. In addition to the 1958 Agreement the Particulars of Claim (paragraph 11) allege a parallel agreement with Bacon made by conduct under which Frank Lloyd, Harry Fischer and Miss Valerie Beston, an employee but not a director of Old Marlborough, agreed "to manage his affairs relating to his professional career and private affairs". This is described in the pleading as the Management Contract and for convenience I shall refer to it in the same way. Under this agreement the individuals I have referred to and through them Old Marlborough are alleged to have made loans to Bacon, to have introduced him to Messrs. Theodore Goddard who subsequently acted for Bacon in his tax affairs and drew up his Will, to have paid Bacon's domestic bills, to have arranged exhibitions, to have protected his copyright and to have managed his finances at least in the sense of opening bank accounts for him and holding money to his account. The Management Contract is said to have given rise in itself to various fiduciary duties on the part of Old Marlborough. Most critically these are pleaded in paragraph 14 as including a duty to act in Bacon's interests and not their own, not to allow their duties to Bacon and their own interests to conflict and not to make a profit from their fiduciary position. These fiduciary obligations are said to have been broken in that Old Marlborough under the 1958 Agreement paid to Bacon prices that were less than the fair market value of the works sold and thereby put their own interests before those of the artist. The prices which Old Marlborough obtained for his works were not disclosed to Bacon or accounted for.
11. Part C of the Particulars of Claim deals with what it describes as the Marlborough UK Period which begins in 1968 and lasts until Bacon's death in 1992. Once again the underlying relationship between the parties is alleged to be contractual. During this period (paragraph 20) the same two basic arrangements are alleged; (i) an exclusive sales agency for Bacon's works and (ii) an agreement for the provision of management services of the kind I have already described. Both these agreements are based on conduct and both are said to be subject to the same terms and to give rise to the same duties as are pleaded in relation to the Old Marlborough Period. In the alternative it is pleaded in paragraph 25 that the same fiduciary duties (i.e. not to profit nor to allow a conflict of duty and interest) existed after 1968 even if there was no underlying contractual relationship of agency or for the provision of management services. The relationship between Bacon on the one hand and Marlborough UK through Frank Lloyd and Miss Beston on the other is alleged to have been a de facto relationship of trust and confidence under which Bacon was "content to put himself entirely in Frank Lloyd's and/or Miss Beston's and/or Marlborough UK 's and/or Marlborough Liechtenstein's hands, relying upon them to be loyal and to act in his best interests, reposing trust and confidence in them". The factual basis for his plea consists of the same acts or services which Miss Beston and others performed. These include the arrangements under which Miss Beston took custody of any new paintings completed by Bacon, had them photographed as part of a continuing record by Prudence Cuming Associates Limited, prepared a written record of the work and then arranged for the painting to be framed and stored.
12. On the basis of the fiduciary relationship pleaded the purchase of paintings by Marlborough UK and any sales affected by them are said to have been procured by presumed undue influence or breach of fiduciary duty and are accordingly voidable in equity. Although elaborated upon in some detail in the pleading the basic allegation (as for the Old Marlborough period) is that the paintings were sold by the Defendants for prices which far exceeded the amount which they paid to Bacon. Had Bacon, it is said, been fully informed and properly advised he would not have allowed the Defendants such advantageous terms. He was during the Marlborough UK period (paragraph 31(b)) "still a man inexperienced and disinterested in business matters and who was content to put himself entirely in [the Defendants'] hands, relying on them to give him a fair deal".
13. The principal purpose of the Amended Particulars of Claim is to remove the allegations that the relationship between Bacon and the Defendants was governed by some underlying contract. It is now accepted by the Claimant that the 1958 Agreement did not survive its limited extension into 1964 and that the Management Contract as such never existed. Instead emphasis is now placed on the continuing dealings between Bacon and the Defendants both before and after 1964 as giving rise to what is described as "an arrangement of convenience whereby Bacon allowed Marlborough UK and/or Marlborough Liechtenstein to be the sole agent for the commercial exploitation of his artistic output (paragraph 43)." In addition it is said that Marlborough UK was Bacon's agent in relation to his personal, professional and artistic affairs generally (paragraph 42). In support of this plea the Claimant relies upon the same services particularised in the existing Particulars of Claim in relation to the Management Contract although with more detailed information about Miss Beston's role in organising Bacon's tax and financial affairs.
14. Out of these arrangements and the trust and confidence which Bacon is said to have reposed in the Defendants arose the self-same fiduciary duties as previously pleaded. The allegations of breach of fiduciary duty are set out in Section E8 (paragraphs 47-51) of the draft pleading in a slightly revised form. In particular it is now specifically alleged that Bacon never agreed the rate of remuneration or profit which the Defendants made from their dealings with his pictures and never gave nor could ever have given his fully informed consent to such profits. It is pleaded in paragraph 49 that the Defendants either sold the paintings to third party galleries and collectors or purchased them on their own account without prior reference to Bacon. The sums which they paid him were, it is said, manifestly disadvantageous and he would not have consented to such prices had he been fully informed and had he received independent legal advice in relation to such matters (paragraph 50). The allegation of lack of informed consent is further particularised in paragraph 52 (in relation to sales as agent) and in paragraph 54 (in relation to purchases as principal). Bacon, it is said, did not know the price at which the works were offered for sale to third parties, the price at which they were sold, the insurance value or the commission or profit made by the Defendants in respect of each painting.
15. In relation to sales as agents the Defendants are sought to be made accountable for any profit they made beyond what might constitute a reasonable allowance for the work done. In relation to any purchases by them there is a claim to set aside the transactions and for an account on the basis of presumed undue influence or abuse of confidence. There is also a claim for an account in respect of lithographs produced or authorised by the Defendants which I shall deal with separately.
16. In this analysis of the Amended Particulars of Claim I have deliberately omitted any reference to the structure and layout of the proposed pleading. Much criticism has been made about this and I shall have to say something about it later in this judgment. But as Mr. Lyndon-Stanford realistically accepted criticisms of the clarity of expression and style (whilst not unimportant) are secondary to the Defendants' primary objection which is the viability of the claim. It is to that which I now wish to turn.
17. Although this is an application for leave to amend under CPR Part 17 it is accepted by Mr. Vos that I should consider the Defendants' objections to the pleading as part of that application rather than as separate (and subsequent) applications to strike out or for judgment under Part 24. CPR Part 17 also requires me to apply the overriding objective (CPR Part 1) by considering whether the proposed amendments will enable the court to deal justly with the claim in a way that is proportionate to the importance and complexity of the case and to the financial position of each party.
18. It seems to me that an important part of this process must be to ensure that the new pleading will assist the efficient and economic disposal of the claim both in terms of allowing the Defendants to meet the case against them and ultimately by providing the court with an intelligible account of the issues to be tried. As part of this process I have been urged by both Defendants to dismiss on a summary basis what they contend is a speculative piece of litigation or as Mr. Lyndon-Stanford preferred to describe it, "a try-on". If satisfied on their arguments that the case has no realistic prospects of success I should dispose of it now rather than expose their clients to protracted and expensive litigation which will ultimately fail.
19. An application to dismiss or dispose of an action on a summary basis (whether under CPR Part 3.4 or CPR Part 24) cannot be acceded to unless the court can be satisfied that it has before it the material which permits it to achieve a just resolution of the dispute. In order to consider whether the Claimant has no real prospect of succeeding on the claim or whether the statement of case discloses any reasonable grounds for bringing the claim the judge must feel sure that the summary process has allowed the party under attack fairly to present his case. If that can only be achieved through the medium of a trial then the summary application must be dismissed.
20. In Swain v Hillman [2001] 1 AER 91 Lord Woolf CJ (at pages 94 and 95) said this:
It is important a judge in appropriate 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. As Mr. Bidder put it in his submissions, 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.
This approach has been approved by the House of Lords in Three Rivers District Council v Bank of England (22nd March 2001) where an application was made to strike out a claim against the Bank based on alleged misfeasance in public office. In paragraph 95 of the speeches Lord Hope of Craighead said this:
I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be take that view and resort to what is property called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lloyd Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.
In approaching the Claimant's application for leave to amend and the grounds of opposition raised to it I have directed myself in accordance with that guidance.
21. Both Defendants strongly dispute the allegation that they either owed or were in breach of any fiduciary duty to Bacon. In summary their position is this. It is common ground that when Bacon first dealt with Old Marlborough in 1958 he was an established artist even if not a commercially successful one. His ability to exploit his talent commercially depended upon forging a relationship with a gallery that could successfully market his work. Marlborough fitted that description. When Bacon contracted with Old Marlborough in 1958 there was no pre-existing relationship which could have given rise to fiduciary duties of the kind alleged whether as implied terms of that agreement or more generally. In particular the duties contended for are inherently inconsistent with the 1958 Agreement. That provided for the purchase by Old Marlborough of a series of paintings at predetermined prices leaving Old Marlborough free to dispose of them to clients for whatever it was able to achieve. It was not a commission agreement and if it was an agency at all it was one which entitled Old Marlborough to any profit over the price agreed with Bacon. To make Old Marlborough accountable for the difference between that price and the market value of the picture ultimately achieved would be to re-write the agreement and render the arrangement a commercial nonsense. The same would go for the alleged extension of the agency on these terms after 1964.
22. The abandonment of the contractual basis for the claim does not, they say, improve it. If there was after 1964 no continuing contractual relationship then there was no agency. Bacon's dealings with Marlborough were simply a series of contracts under which he sold paintings to them at agreed prices. They bought as principals and remained free to sell the paintings as they saw fit and at a profit. The services provided to Bacon by Miss Beston, though doubtless important to the smooth and uncomplicated running of his life, were hardly comparable in importance to his direct dealings with the Defendants and cannot have converted as essentially commercial relationship into a fiduciary one.
23. I propose therefore to consider in more detail the two alternative grounds upon which the claim is put in the Amended Particulars of Claim. The first is that Marlborough UK and Marlborough Liechtenstein acted as Bacon's agent in the sale of his paintings and were under a duty to account to him for the profits they received subject to a due allowance for the services they provided. The second is that Marlborough UK and Marlborough Liechtenstein purchased his works at an under-value in circumstances amounting to presumed undue influence or abuse of confidence. In so doing I propose to ignore the summary of the claim set out in Part A of the pleading which alleges an agency in paragraphs 7(2), 10 and 13(5) but seems to group everything under presumed undue influence in paragraphs 14 and 15.
24. However before coming to the detail of the pleading it is necessary to put the dispute in context. The critical allegation as I see it relates to the position at the end of the 1958 agreement. Paragraph 21 of the Amended Particulars of Claim alleges in terms that by 1964 Old Marlborough had built up a close business and personal relationship with Bacon out of which grew the non-contractual "arrangement of convenience" under which it continued to sell his paintings. This relationship is said to have given rise to fiduciary duties to act in the artist's best interests (see paragraph 23). The elements of Bacon's relationship with Old Marlborough are analysed in more detail in Annex B which I shall come to later. If the Claimant is right and a relationship of trust and confidence of the kind described existed between Bacon and the gallery in 1964 then the dealings between them which followed have to be considered in the light of that relationship. Dealings between parties in a fiduciary relationship are not treated as at arms length. Equity requires a fiduciary to justify such dealings (the fair dealing rule) and in some cases even prohibits them (the self-dealing rule). In Tate v Williamson (1866) 2 Ch.App. 55 Lord Chelmsford LC described the rule in this way:
The jurisdiction exercised by Courts of equity over the dealings of persons standing in certain fiduciary relations has always been regarded as one of a most salutary description. The principles applicable to the more familiar relations of this character have been long settled by many well-known decisions, but the Courts have always been careful not to fetter this useful jurisdiction by defining the exact limits of its exercise. Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed.
This passage is important because it illustrates the close proximity of what are now usually described as the doctrines of presumed undue influence and abuse of confidence. What is clear from Tate v Williamson is that they have a common origin and purpose in scrutinising the conduct of fiduciaries in their dealings with the confiding party. This was recognised by Lord Browne-Wilkinson in CIBC v Pitt [1994] 1 AC 200 at page 209 when considering the earlier ruling of the House of Lords in National Westminster Bank plc v Morgan [1985] AC 686 that the basis of the doctrine of presumed undue influence is not public policy:
I should add that the exact limits of the decision in Morgan may have to be considered in the future. The difficulty is to establish that relationship between the law as laid down in Morgan and the long standing principle laid down in the abuse of confidence cases viz. the law requires those in a fiduciary position who enter into transactions with those to whom they owe fiduciary duties to establish affirmatively that the transaction was a fair one: see for example Demerara Bauxite Co.Ltd. v Hubbard [1923] A.C.673; Moody v Cox [1917] 2 Ch.71 and the discussion in the Aboody case [1990] 1 Q.B. 923, 962-964. The abuse of confidence principle is founded on considerations of general public policy, viz. that in order to protect those to whom fiduciaries owe duties as a class from exploitation by fiduciaries as a class, the law imposes a heavy duty on fiduciaries to show the righteousness of the transactions they enter into with those to whom they owe such duties. This principle is in sharp contrast with the view of this House in Morgan that in cases of presumed undue influence (a) the law is not based on considerations of public policy and (b) that it is for the claimant to prove that the transaction was disadvantageous rather than for the fiduciary to pr ove that it was not disadvantageous. Unfortunately, the attention of this House in Morgan was not drawn to the abuse of confidence cases and therefore the interaction between the two principles (if indeed they are two separate principles) remains obscure.
25. If the necessary relationship of trust and confidence existed by 1964 (or indeed some later date) then any purchases by Marlborough after that date would prima facie be affected by the fair dealing rule or the presumption of undue influence. To say that Marlborough purchased as principals is not an answer to this claim. A central allegation made by the Claimant in the Amended Particulars of Claim is that the Marlborough companies acted as agents after 1964. This may have the advantage (if correct) of short-cutting the question whether Marlborough was a fiduciary. Most agents are. But it has spawned a dispute between the parties which I shall come to later as to whether in the particular circumstances of this case Marlborough as agent was under a duty not to profit without consent as alleged. Once again this is a question which cannot be answered in isolation from the relationship in which the parties found themselves at the end of the 1958 agreement. Therefore although I intend to analyse the separate parts of the Amended Particulars of Claim by reference to the causes of action I have identified and on which I have heard argument these seem to me to be essentially disputes about characterisation and allocation which ultimately may prove to be unnecessary. If the Claimant succeeds in establishing the necessary fiduciary relationship and the duties alleged then the Defendants will be required to account whether as agents or as principals.
26. In paragraph 1 of the prayer the Claimant seeks a declaration that the Defendants hold all the profits from any sales of Bacon's works (including lithographs) on constructive trust for the estate subject to an allowance equal to the commission to which an art dealer acting at the relevant time would have been entitled to charge for the services rendered. The size of any such commission is obviously a triable issue. The alleged agency is pleaded in paragraph 32 (in relation to Marlborough UK) and in paragraph 33 (in relation to Marlborough Liechtenstein). Both companies are said to have been agents in respect of the receipt, recording, storage, photography, protection of copyright and export of Bacon's work as well as its marketing and sale. Both are alleged to have been involved as agents in the production and commercial exploitation of lithographs. Marlborough UK (but not Marlborough Liechtenstein) is alleged to have been responsible for the administration of Bacon's personal affairs.
27. Various aspects of this agency are particularised in Part E2 (paragraphs 34 to 38). This describes in some detail the role of Miss Beston once Bacon had finished a painting. One of her principal roles was to arrange for the picture to be taken into the custody of the Defendants until sold. It is common ground that Bacon lived in a small flat and studio in South Kensington which had no real storage facilities. He could also be destructive. To preserve his pictures they were removed from him when complete, framed, photographed and then stored. Occasionally they were returned to him at his request for alteration or even destruction. Miss Beston is said to have made a written record of each work and the price at which it was subsequently sold based on information she received from Frank or Gilbert Lloyd.
28. The Claimant's case on sales by the Defendants as agents is now pleaded out in paragraphs 39 and 39A (Marlborough UK) and 40 and 40A (Marlborough Liechtenstein) of the Amended Particulars of Claim. Reliance is placed in paragraph 39 on statements by Marlborough UK in catalogues and correspondence that it acted as Bacon's agent. In paragraph 40 reference is made to transactions between Marlborough Liechtenstein and various third parties in which works were sold to those third parties prior to a purchase price being agreed with Bacon.
29. This matter is taken further in paragraphs 39A and 40A based on documents produced by Mr. Franz Plutschow, a Swiss accountant who has run Marlborough Liechtenstein since 1973, as part of his evidence on these applications. Mr. Vos told me that had the timing been different paragraphs 39 and 39A and paragraphs 40 and 40A would have been combined but no point is taken on that.
30. I start then with paragraph 39. The catalogues referred to in sub-paragraph (1) are at best neutral and really say nothing about the precise nature of the arrangements between Bacon and the gallery. The letter from HM Inspector of Taxes referred to in sub-paragraph (2) confirms that Old Marlborough were assisting Bacon with his tax affairs but cast no light upon the position regarding sales. Sub-paragraph (3) and (5) show that the Defendants took steps to preserve Bacon's copyright and sub-paragraph (4) relates to their assisting in the preparation of an exhibition. Dr. Reber's letter (sub-paragraph (6)) relates to Miss Beston's role in arranging for payment of the proceeds of sale of his work. I shall deal with sub-paragraph (7) later in connection with other parts of the pleading dealing with the sale to Mr. Michael Leventis. These particulars certainly confirm that Marlborough was involved in the matters I have referred to but do not give any direct assistance in relation to the central question of whether there was a sales agency. They are however relevant to the other matters relied upon in paragraph 32.
31. Paragraph 39A specifically alleges that Marlborough UK acted as Bacon's agent in offering paintings belonging to Bacon for sale to third parties and in concluding sale contracts with them. It is also alleged that Marlborough UK was the exclusive outlet for the exploitation of his work. Mr. Lyndon-Stanford quibbled with this on the basis that there were at least two instances of paintings being sold by Bacon other than through the Defendants but such occasions were rare and can really be ignored for present purposes. The allegation of agency is then particularised in relation to seven different dealings by Marlborough UK allegedly as Bacon's agent.
32. The first relates to the painting 2 studies for portrait of Richard Chopping 1978. The Claimant relies on a memorandum dated 14th June 1978 from Miss Beston to Mr. Plutschow. It refers to David Somerset and Frank Lloyd having decided to purchase the diptych instead of another picture or pictures. It goes on to ask Mr. Plutschow to arrange payment to T. Rogers from Marlborough Liechtenstein as payment on account for Bacon. The diptych was then in London to be shown to clients. There is also reference to debiting an unnamed party with a half share presumably of the cost.
33. The particulars allege that the memorandum evidences a purchase by the two named directors for their own account and that Marlborough UK (through Miss Beston) acted as agent in offering the picture to the directors for sale. In support of the alleged agency reliance is placed on what is referred to as Marlborough Liechtenstein's accounting (set out in Schedule 5 to the Amended Particulars of Claim) which is said to record that the painting was not purchased from Bacon until 6th July 1978, several weeks later. Thus it is said that Marlborough UK was negotiating the sale at a time when they did not own the painting and can therefore only have done so as agents for the true owner Bacon.
34. In order to explain the Defendants' riposte to this it is necessary for me to digress a little. The accounting by Marlborough Liechtenstein set out in Schedule 5 has a history to it which was explained to me by Mr. Lyndon-Stanford. In support of his argument that the claim was contrived he referred to the early history of the action. It was he says stage managed by the Claimant with the assistance of a New York attorney, Mr. John Eastman, who still acts for Mr. John Edwards under Bacon's will. The early correspondence between solicitors appeared to focus on the estate's inability to produce a complete record of all Bacon paintings sold through or to the Defendant companies. During Bacon's life Marlborough Liechtenstein had from time to time produced accounts of its dealings with Bacon which Mr. Plutschow says were sent to Bacon care of Miss Beston. Whether Bacon saw them is an issue. They detailed the paintings which were sold, the prices agreed with Bacon and the payments made to him. Following requests for information from the estate Mr. Plutschow says that he instructed Dr. Alfred Reber, Marlborough Liechtenstein's Swiss lawyer, to arrange a meeting with the estate 's representatives. Various meetings were cancelled and, beinh unable to obtain a meeting, Dr. Reber then sent a list of the relevant transactions to Mr. Eastman in August 1998. It was returned unread. Dr. Reber had prepared what is now Schedule 5 to the Amended Particulars of Claim. This is a more comprehensive account of the dealings between Bacon and the Defendants and was intended to provide the estate with the information which it was thought was required. In his third witness statement Mr. Plutschow says that the dates in the list of transactions are not the dates when Marlborough Liechtenstein agreed to purchase the works from Bacon but the dates when the purchase prices were credited to Bacon's account with Marlborough Liechtenstein. This was often later than the date when Frank Lloyd agreed to buy the picture.
35. Mr. Lyndon-Stanford took me to the correspondence between solicitors at the time to indicate his clients had at all times attempted to be co-operative. In fact, he says, no attempt was made to acknowledge this or to respond to requests made by Allen & Overy as to what other matters the estate wished to be satisfied about. Instead the proceedings were launched making serious allegations of the kind I have described. Mr. Lyndon-Stanford relies upon this as further evidence of a lack of sincerity on the part of the Claimant. In reply Mr. Vos says that Marlborough Liechtenstein only provided Dr. Reber' s limited accounting when forced to do so by the change in executors from Miss Beston to Professor Clarke in 1998. I prefer to express no views about the correspondence or any alleged lack of good faith on the part of the Claimant or the Defendants. I am simply not in the position on an application such as this to make findings of that sort. But what is clear and I think undisputed is that nothing in the desire of the estate to clarify what transactions had taken place between Bacon and the Defendants could justify proceedings of this kind. The relief sought goes far beyond a pure accounting exercise and as Mr. Vos accepts is dependent upon his client proving the relevant abuses of the alleged fiduciary relationship.
36. I have mentioned Dr. Reber's accounting because it is relevant to what is a common plea in relation to most of the transactions particularised under paragraph 39A and 40A. This is that purchases from Bacon were made after the date on which the sales on took place. As I have already explained this is put in issue by Mr. Plutschow in his third witness statement. But the strongest argument for the Defendants does not depend upon my accepting that evidence. As I recorded earlier in this judgment the Claimant invites the court to treat both Defendants and Frank Lloyd as the same. This is spelt out in paragraphs 8, 9, 39A(19) and 40A(20). They are said to be indistinguishable. In the face of this plea it is not in my judgment open to the Claimant to rely on the acts of the two companies, their directors and employees as constituting some form of agency for Bacon or as between each other at least in relation to transactions between him and one or other of the Defendants. Even if the correct way of reading the memorandum of 14th June 1978 is as indicating a purchase by Mr. Lloyd and David Somerset for their own account (and there is certainly nothing in the memorandum which says as much) it is quite unrealistic to regard the role of Marlborough UK (whether through Miss Beston or anyone else) as constituting an agency for Bacon. Consistent with the plea that Lloyd was Marlborough this was a sale by Bacon to Lloyd. I do not therefore propose to give leave to amend in relation to paragraph 39A(1) – (3). For the same reason I propose to disallow sub-paragraphs (4) – (6), (12) – (14) and (15) – (17) all of which deal with acquisitions by Schaefer & Co. which was a Marlborough entity and acquired the paintings for the price paid to Bacon. I will also disallow sub-paragraphs (12) – (14), (15) and (16) – (18) of paragraph 40A which relate to Marlborough Liechtenstein and concern transactions of the same kind. Mr. Vos submitted that these pleas of internal agencies within the Marlborough group were in response to the stance taken by Marlborough UK to the effect that the Defendants are separate legal persons and must be treated as such. It was therefore in essence a plea in the alternative. It seems to me that in the interests of simplicity an alternative plea of this kind should wait until a Reply. If Marlborough UK takes up its previous position in any defence it can be addressed then.
37. I come now to sub-paragraphs 39A (7) – (9). This relates to a memorandum from Miss Beston to Mr. Plutschow dated 29th September 1979 concerning the painting Lying Figure 1977. It is pleaded that the memorandum records that the painting has been sold by a third party dealer to what we now know was a Japanese museum. Reliance is placed upon the subsequent date (6th October 1979) in the Marlborough Liechtenstein accounting schedule and it is alleged that Marlborough UK (through Miss Beston) acted as Bacon's agent on the sale to the museum although what was recorded was a sale to Marlborough Liechtenstein. This example cannot be dealt with or disposed of except by analysing whether the plea of agency in cases involving sales to third parties by Marlborough Liechtenstein is a correct characterisation of the transaction and I intend to deal with it a little later in this judgment when I come to that question generally.
38. That brings me to sub-paragraphs 39A (10) – (11) which relate to the painting Carcass of Meat and Bird of Prey 1980. The memorandum relied upon is from Gilbert Lloyd to Mr. Plutschow dated 22nd July 1980. It evidences a sale of the painting to a third party for $100,000 which is referred to as a prix d'ami at the request of the artist. Bacon is recorded as having agreed to reduce "his price" to $60,000 which is a reference to what is sometimes described as the cost price paid by the gallery to Bacon. Once again the Marlborough Liechtenstein accounting is relied upon to show that the purchase from Bacon took place also on 22nd July 1980. This is said to indicate that the sale to the third party was conducted before the purchase from Bacon. Mr. Lyndon-Stanford submitted that what the memorandum clearly shows is that the entire structure of the deal including both sale price and the price to be paid to Bacon was negotiated in advance of the transaction being put into effect. This was a sale to a friend at a special price and Bacon had adjusted his price as part of it. Although this may be the correct interpretation it is not one which is open to me simply upon reading the document. Whether Bacon was aware that Marlborough Liechtenstein had made a profit of $50,000 on the sale is an issue for a trial. The same goes for sub-paragraphs 40A(8)-(10).
39. Apart from sub-paragraphs (7) – (9) that leaves only sub-paragraph (18) which is really referential to a plea about a transaction involving Mr. Michael Leventis set out in paragraph 39(7) but more particularly in paragraph 56(1). I shall deal with this transaction later in this judgment so far as it raises a specific allegation of an unauthorised profit. But reliance on it as part of paragraph 39A is based solely on it being a further example of a sale to a third party effected through an intermediate transaction with Marlborough Liechtenstein. It therefore falls to be considered along with sub-paragraphs (7) –(9).
40. I turn now to paragraph 40 dealing with Marlborough Liechtenstein's agency. The letter from Miss Beston described in sub-paragraph (1) does refer to Marlborough Liechtenstein as Bacon's agent but is not more specific than that. Sub-paragraphs (2) and (3) deal with transactions in which the ultimate purchasers were invoiced prior to Bacon being credited with the cost price and it is said prior to any purchase from him. This is the same temporal point which is raised in relation to a number of items in paragraphs 39A and 40A. Sub-paragraph (4) pleads an agreement with Galerie Lelong S.A. relating to an exhibition of Bacon's works in Paris. It shows that Marlborough Liechtenstein agreed with the gallery (with Bacon's authority) to lend various works in its ownership or possession which would be available for sale at the prices specified. Galerie Lelong would receive a commission of 20% on any sales. The agreement does not however deal with the arrangements between Bacon and Marlborough Liechtenstein although it does look as if some of the paintings to be consigned were not necessarily yet in Marlborough Liechtenstein's ownership. The position is therefore arguably similar to that in the cases pleaded under sub-paragraphs (2) and (3) where Marlborough Liechtenstein may have been dealing in paintings by Bacon which it had not yet purchased.
41. Paragraph 40A pleads in relation to Marlborough Liechtenstein that the company acted as Bacon's agent in offering paintings belonging to Bacon for sale pending concluding sale contracts with third parties in respect of such paintings. The first alleged example of this which is contained in sub-paragraphs (1)–(3) concerns the painting Self Portrait 1974;. The memorandum of 28th April 1975 records that the painting was then the property of Marlborough Liechtenstein and that a cost price of £6000 had been paid (underlined) to Bacon. An unnamed purchaser had been found for the painting for the sum of $45,000 payable in instalments. The Marlborough Liechtenstein accounting schedule, shows a date in respect of this painting of 29th April 1975 which is pleaded in the Particulars as the date of purchase. It is then pleaded that what is to be inferred from the memorandum is that the painting had been marketed by Marlborough UK on behalf of Marlborough Liechtenstein prior to its acquisition from Bacon on 29th April 1975. I shall treat this as another example of a case where the work in question is alleged to have been sold on to a third party by Marlborough Liechtenstein prior to its purchase from Bacon. I shall therefore return to it a little later in this judgment. The next item set out in sub-paragraph (4) concerns the Galerie Claude Bernard. What is referred to is a written agreement dated 8th October 1976 between the gallery and Marlborough Liechtenstein relating to the staging of an exhibition of Bacon's paintings in Paris. The agreement provides that Marlborough Liechtenstein would consign to Claude Bernard a number of works selected by the artist for the purposes of the exhibition for a period of 6 months. All the works consigned would be available for sale at the prices set out in the second paragraph of the Agreement. These prices are stated to have been agreed by the artist. In respect of each painting a net price is set out which is the price payable to Marlborough Liechtenstein in the event of a sale. The agreement then sets out a minimum selling price and an asking price which would be the prices at which the gallery would offer the work in question for sale and below which it would not be permitted under the terms of the agreement to dispose of the painting. The pleading alleges that many of the paintings consigned under this agreement did not belong to Marlborough Liechtenstein but remained at the relevant time the property of Bacon. On this basis it is to be inferred that Marlborough Liechtenstein had Bacon's authority to sell the works on his behalf in accordance with the terms of the agreement and there is in evidence a letter from Bacon indicating that he saw the agreement in draft and approved it. As in the case of the Galerie Lelong agreement the recital to the agreement certainly refers to Marlborough Liechtenstein as the owner or possessor of the paintings which suggests that there were a number of paintings included which it did not own. As and when the gallery found a buyer for the painting it would be required to sell that painting for somewhere between the asking price and the minimum selling price and would be required to pay to Marlborough Liechtenstein the relevant net price. Marlborough Liechtenstein (in the case of any paintings which they had not yet purchased from Bacon) would then pay him the cost price agreed with him. I shall therefore treat this as another alleged example of paintings being sold on to third party purchasers through the medium of a transaction involving Marlborough Liechtenstein prior to being purchased from Bacon.
42. The next item which I need to deal with is set out in sub-paragraph (11) and concerns a memorandum dated 27th January 1981 from Miss Beston to Frank Lloyd detailing various Bacon paintings available for purchase. In the middle column of the memorandum there are various comments relating to the status of each painting. Two of them are recorded as being with one of the Marlborough companies. One of them was the subject of interest by an unknown buyer and the two others are recorded respectively as sold for $182,500 and under offer for $200,000. The painting Study for Self Portrait 1981 which is recorded as sold was not accounted for according to the accounting schedule until 20th March 1981. There is a similar time lag in respect of the painting recorded as being under offer. This is said to be further evidence of the practice already referred to under which Marlborough Liechtenstein is said to have sought purchasers for Bacon paintings prior to having acquired them from the artist.
43. This brings me to consider the various sub-paragraphs of paragraphs 40, 39A and 40A that I have identified which provide instances of sales by the Defendants to third parties in cases in which it is alleged that at the time of such sale they did not yet own the Bacon painting in question and can therefore only have dealt with it as an agent for the artist. The documents relied on in these sub-paragraphs are exhibited to the witness statement of Mr. Plutschow. His evidence is that Marlborough Liechtenstein never sold Bacon's works as his agent; that it always bought them as principal and that it was free to sell them to clients at whatever price it could obtain. He says that he was in almost daily contact with Frank Lloyd from 1973 until 1992 when Mr. Lloyd was disabled by a stroke and ceased to run the Marlborough business. Lloyd would inform him when Bacon had a picture he wished to sell. Lloyd would decide if the picture was worth acquiring and agree the purchase price with Bacon. It would then be acquired by Marlborough Liechtenstein. On occasions the decision whether to purchase the painting was deferred while Marlborough Liechtenstein explored whether it could find a purchaser. If a purchaser was found the acquisition of the painting from Bacon at the price agreed with him would then go ahead. Miss Beston would tell Mr. Plutschow how Bacon wanted to be paid. Sometimes payment would be made to a Swiss bank account maintained for Bacon in the name of a Liechtenstein Stiftung. On other occasions the money would be remitted to Bacon's account in England or even paid to him in cash.
44. The allegations that from 1972 Marlborough Liechtenstein (and very occasionally Marlborough UK) sold paintings to third parties as Bacon's agents involve reliance upon the alleged difference in timing between the sale of the work to the ultimate purchaser and its acquisition by the gallery. All of the pleaded examples are intended to show the Defendants dealing with the paintings at a time when it is said they were not yet the owner. In addition there are the agreements with Galerie Claude Bernard and Galerie-Lelong. But the background is also important. In paragraph 2, 29 and Annex B of the Amended Particulars of Claim reference is also made to the 1958 agreement and to the sole and exclusive agency it provided. Mr. Lyndon-Stanford very fairly pointed out that it is not clearly alleged there was an agency under Clause 2 of the 1958 agreement but the combination of paragraphs 2 and 19 and paragraph 15 of Annex B does I think contain such a plea. Although clauses 1 and 3 of that agreement imposed an obligation upon Old Marlborough to purchase paintings up to a specified value calculated in accordance with the prescribed formula it also (in clause 2) conferred upon Old Marlborough the sole and exclusive right anywhere in the world to:
sell artistic works of any kind, produced by you; the sole and exclusive right in any part of the world to make and/or sell reproductions in any form of such works, and the sole and exclusive right to authorise any person to sell such works or make and/or sell such reproductions.
Old Marlborough was therefore able, it is said, to prevent Bacon from selling through any other means any paintings produced in a given year but not purchased pursuant to the obligations contained in clause 3. Bacon therefore had no option but to allow Old Marlborough to obtain possession of such paintings for the purpose of selling but could not require Old Marlborough to buy. If they sold one of these paintings they were required, Mr. Vos submitted, to account for the proceeds to him less a reasonable commission. That commission could not be calculated in accordance with the formula in clause 1. These prices were a special rate designed to reflect the fact that where Old Marlborough had bought the painting in advance it took the risk of being able to dispose of it at a profit. In other cases where it took no risk because it was not required to buy the painting from Bacon in any event, it could not be entitled to the same rate of discount. This, he said, is recognised in the defence served by Marlborough UK which pleads in paragraph 6.1 that it was an implied term of the 1958 agreement that Old Marlborough would account to Bacon for the sale price of any works sold on the artist 's behalf less reasonable commission. It is also supported by the evidence of Mr. Geoffrey Parton filed on behalf of Marlborough UK who says that galleries which take paintings from artists on a sale or return basis usually pay a commission on any sales made.
45. The Claimant's case is that the post 1964 dealings particularised in Parts E3 and E4 of the Amended Particulars of Claim were dealings with third parties as Bacon's agents and that the recording of the transaction as a purchase by Marlborough Liechtenstein did not accord with the reality. Particular emphasis is laid upon the following factors:
i. that Marlborough Liechtenstein had in effect the exclusive right to sell. It took physical possession of all the paintings on completion and there were at most only a handful of cases in with Bacon sold other than through the Defendants;
ii. the arrangements under which the Defendants would negotiate a sale to a third party prior to having to purchase from or account to Bacon relieved them of any risk which would be inherent in a sale to them as principal;
iii. there are references in the evidence to Bacon being offered a "net price" for the paintings which is the language of commission and agency';
iv. the agreement with Galerie Claude Bernard and Galerie Lelong confirm a sales arrangement made with Bacon's authority for the disposal of paintings of which he was still owner; and
v. all these transactions were carried out under the regime originating in clause 2 of the 1958 agreement.
46. What is I think clear is that Bacon did surrender his completed paintings to the Defendants for storage until sale. It is also obvious that he chose to have this arrangement with a gallery rather than, for example, a firm of carriers and storage agents such as T. Rogers, because he wished to be able to sell his works to the public. But the arrangements under which that might be done can obviously vary. The 1958 Agreement clearly shows that Bacon chose an arrangement under which he sold some paintings to Old Marlborough for agreed prices based on size. In respect of these Old Marlborough was entitled to retain any profit which they made on a sale in excess of the price agreed to be paid to Bacon. They were not limited under the terms of the agreement to receiving commission or to reasonable remuneration for their work. But if Mr. Vos is right in his construction of the 1958 agreement a different regime applied to other sales. Old Marlborough was not contractually entitled to purchase such works at fixed prices. It was limited to a reasonable commission. Mr. Lyndon-Stanford argued that clause 3 did not impose a maximum but rather a minimum limit and that all sales took place in accordance with that provision. But I have no real evidence about that and any such evidence would almost inevitably raise a series of triable issues. For the same reason I decline to express any view about the construction of the 1958 agreement or the manner in which it was operated. These are matters for a trial.
47. The Defendants' primary submission is that there is nothing to support any pre-existing fiduciary relationship between Bacon and Frank Lloyd prior to the making of the agreement in 1958 or the fiduciary duties not to profit which are alleged. The allegation of presumed undue influence in relation to the making of that agreement has been abandoned in the Amended Particulars of Claim. Bacon simply moved to Old Marlborough from another gallery. The existing pleading relies upon business efficacy as the basis of an implied term in the 1958 agreement that Old Marlborough would not allow its interests and duties to conflict. This is expanded upon in paragraph 11 partly in reliance upon the wider range of services provided by Old Marlborough under the Management Contract which I described earlier in this judgment. Although the allegation of implied terms if now abandoned in what has become Annex B to the Amended Particulars of Claim, the plea remains (Annex B, para 8) that during the Old Marlborough period Miss Beston arranged for the collection, photography and storage of Bacon's completed works until sale. It is also still alleged (Annex B, para 11) that Old Marlborough (through Frank Lloyd, Harry Fischer or Miss Beston) performed the services for Bacon described in paragraph 11 of the existing Particulars of Claim.
48. In paragraph 13 of Annex B it is pleaded by way of amendment that the fiduciary duties owed to Bacon by Old Marlborough included a duty not to allow its personal interests and its duties to Bacon to conflict and a duty not to profit from Bacon without his fully informed consent. These duties are alleged in paragraph 12 to arise by reason of Old Marlborough's "said agency", its "professional and personal proximity to Bacon" and the trust and confidence which by 1964 Bacon reposed in Old Marlborough. Reference to the "said agency" is a reference back to paragraphs 6 and 7 which plead:
6. The Claimant admits that the 1958 Agreement was terminated on the 12 th June 1964, as Marlborough UK contends. By that time, Old Marlborough had built up a close business and personal relationship with Bacon. From then there existed between Old Marlborough and Bacon an arrangement of convenience whereby Bacon allowed Old Marlborough to be the sole agent for the commercial exploitation of his artistic output.
7. Between 1964 and 1968, Old Marlborough acted as Bacon's sole and exclusive agent as aforesaid. In particular, Marlborough acted for Bacon in relation to the following matters:-
(1) The receipt, recording, photography, storage and protection of Bacon's work;
(2) The cataloguing, exhibition and marketing of Bacon's work;
(3) The sale of Bacon's work;
(4) Protection of copyright in Bacon's works; and
(5) The administration of Bacon's personal affairs.
49. This arrangement of convenience (even if not contractual) is not suggested in the pleading to have been other than similar to the arrangements under the terms of the 1958 agreement. In the existing Particulars of Claim it is pleaded that the sales agency and management services provided between 1964 and 1968 remained the same as before. The paintings were still being " acquired and/or sold by or through Old Marlborough": see Annex B, para 8(2).
50. On the basis that there was no discernible change in the way in which Bacon dealt with Old Marlborough during the entirety of the Old Marlborough period I have been invited to examine with some care the basis upon which Old Marlborough came to be subject to the fiduciary duties pleaded in Annex B, para 13. The relationship between Bacon and Old Marlborough began as a contractual one under the terms of the 1958 agreement. Where the parties' rights and obligations are governed by contract the courts are cautious when faced with any attempt to superimpose some additional fiduciary obligations. In Henderson v Merrett Syndicates [1995] 2 AC 145 and page 206 A-D Lord Browne-Wilkinson summarised the position in this way:
the derivation of the general principle from fiduciary duties may be instructive as to the impact of any contractual relationship between the parties on the general duty of care which would otherwise apply. The phrase "fiduciary duties" is a dangerous one, giving rise to a mistaken assumption that all fiduciaries owe the same duties in all circumstances. That is not the case. Although, so far as I am aware, every fiduciary is under a duty not to make a profit from his position (unless such profit is authorised), the fiduciary duties owed, for example, by an express trustee are not the same as those owed by an agent. Moreover, and more relevantly, the extent and nature of the fiduciary duties owed in any particular case fall to be determined by reference to any underlying contractual relationship between the parties. Thus, in the case of an agent employed under a contract, the scope of his fiduciary duties is determined by the terms of the underlying contract. Although an agent is, in the absence of contractual provision, in breach of his fiduciary duties if he acts for another who is in competition with his principal, if the contract under which he is acting authorises him so to do, the normal fiduciary duties are modified accordingly: see Kelly v Cooper [1993] A.C. 205, and the cases there cited. The existence of a contract does not exclude the co-existence of concurrent fiduciary duties (indeed, the contract may well be their source); but the contract can and does modify the extent and nature of the general duty that would otherwise arise.
In Hospital Products Ltd v United States Surgical Corporation (1984) 156 C.L.R. 41 and page 97 Mason J in the High Court of Australia said this:
That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction.
This passage was approved by the Privy Council in Kelly v Cooper [1993] A.C. 205 , another case in which the usual duties of an agent were radically restricted by the terms and circumstances of her appointment.
51. The Defendants submit that clause 3 of the 1958 agreement allowed Old Marlborough to purchase Bacon's paintings for prices to be determined in accordance with an agreed formula. Clause 3 was not a commission agreement and imposed no restriction upon Old Marlborough as to the price or other terms upon which it could subsequently dispose of the paintings. Old Marlborough was free to deal with the paintings it bought as it thought fit. Nor was it under any duty to account to Bacon for the ultimate sale price to its clients. On the basis that clause 3 was an all embracing provision relating to all sales of Bacon paintings then the fiduciary duties pleaded under the existing Particulars of Claim and repeated for the period from 1964 in the Amended Particulars of Claim would totally re-write that contract. Old Marlborough would become no more than a commission agent and would be required to account to Bacon for the ultimate sale price of the paintings. If the premise contained in this submission is made out I would require to be persuaded that any such fiduciary obligations could be implied as part of those contractual arrangements. But as already mentioned the Claimant contends that Clause 2 of the agreement does deal on a commission basis with sales outside the Clause 3 limits and if that is right then the fiduciary duties alleged do fit neatly into that part of the contractual arrangements. The problem identified in the Hospital Products case does not exist. The question which will have ultimately to be resolved in this case is whether the sales of Bacon paintings after 1964 (where clause 3 no longer applied) continued to be governed by that or by the clause 2 regime and why.
52. The resolution of that question cannot be achieved simply by the construction of the 1958 agreement against the background of the circumstances in which it came to be made. As I indicated earlier in this judgment an important and perhaps almost the central question will be to determine how Bacon's relationship with the Marlborough galleries stood and developed after the termination of the 1958 agreement. The Defendants' submissions based on Hospital Products, attractive as they are, depend upon one taking the view that nothing changed in Bacon's relationship with Old Marlborough between 1958 and 1964. But the pleaded case is that it did change. There developed, it is said, a relationship of trust and confidence under which Bacon relied upon Lloyd, Fischer and Old Marlborough "to advise and guide him in relation to his career and to advance and protect his interests"; see Annex B para. 4(1). It is also pleaded that Lloyd, Fischer and Miss Beston knew this. In the current defence of Marlborough UK (paragraph 14.1) this is effectively admitted although it is denied that Bacon placed exclusive reliance on their advice and guidance or that such advice and guidance as they gave created a confidential relationship. Mr. Vos took me to a number of documents which are in evidence and which he says support his client's case that there was by 1964 a confidential and fiduciary relationship of the kind pleaded. They include a Theodore Goddard internal note dated 10th June 1964 which records that Bacon is "wholly in the hands of Marlborough". Similar references to Marlborough and Miss Beston managing or organising Bacon's affairs can be found in notes and correspondence right up to his death. It is pleaded (see Parts C and D of the Amended Particulars of Claim) that the fiduciary relationship was transposed to Marlborough UK and after 1972 to Marlborough Liechtenstein and that both companies through Mr. Lloyd, Miss Beston and others continued to manage most aspects of Bacon's artistic and personal life including his finances and his tax affairs (see Amended Particulars of Claim Parts E1 to E6). I decline to express any view about this evidence. I accept the submissions of Mr. Briggs and Mr. Lyndon-Stanford that documents taken in isolation can give a false and misleading picture of what was actually taking place. But because I have to decide as part of this application whether there is an arguable case for a fiduciary relationship in 1964 and thereafter on the basis pleaded in Annex B paragraph 4 then I can say that I am satisfied on the material presented to me that there is at least an arguable case that such a relationship existed sufficient to satisfy the threshold tests in CPR Part 3 and Part 24.
53. In these circumstances it is not possible for me to accede to the Defendants arguments that on a summary basis I should regard Bacon's dealings with Marlborough after 1964 as a series of contracts free from any fiduciary duties of the kind alleged or even to resolve the question whether Marlborough bought and sold as principals. These questions seem to me to depend upon a detailed examination of Bacon's relationship and dealings with Marlborough both before and after 1964. If the Claimant is right about a fiduciary relationship subsisting in 1964 whether by virtue of an agency under clause 2 of the 1958 agreement or a combination of that and the matters pleaded in Annex B paragraphs 4 and 11 and after 1968 in Parts E1 to E6 then from 1964 each of the successive Marlborough companies were as between themselves and Bacon only entitled to deal with him as fiduciaries. They no longer had the protection of clause 3 and but for some new contractual arrangement on similar lines they would be required to account for their profits. The Defendants' case is that those arrangements were put in place in the form of a series of principal to principal sales as and when each painting came to be sold. An arrangement of that kind could obviously be created but only, says the Claimant, if Bacon gave his full free and informed consent to the arrangements. In my judgment that is not an issue which I can resolve on an application of this kind.
54. It is worth recording that the Defendants have adduced evidence which does indicate that Bacon was on a number of occasions fully aware of the discrepancy in price between what he sold his paintings to Marlborough Liechtenstein for and what they were able to obtain from the ultimate purchaser. The Claimant has produced no evidence to contradict this other than the statement of truth made by Professor Clarke. In particular no evidence has been adduced to support the statement contained in paragraph 50 of the Amended Particulars of Claim that Bacon would not have consented to the profits made by Marlborough Liechtenstein had he been fully informed and properly advised. But again these are matters for a trial. If the alleged fiduciary relationship is established then the burden will shift to the Defendants to show that there was informed consent. That is not a matter which I either can nor need to resolve on this application.
55. One of the transactions referred to in the pleadings (Amended Particulars of Claim para. 56(1)) concerns Michael Leventis, a friend of Bacon, who purchased the picture Study of a Man and Woman Walking 1988. In so far as this is relied upon as another example of Marlborough Liechtenstein dealing with Bacon's works as agents then it gives rise to a triable issue for the reasons already explained. But it is also pleaded as a specific example of an instance when Marlborough Liechtenstein made a profit on a sale which was neither disclosed to nor authorised by Bacon.
56. The allegation is that Bacon agreed to arrange a special price for Mr. Leventis. Mr. Leventis went to see the picture which was at the gallery in London and was told by Miss Beston that Marlborough would give him a special deal and would waive its commission. She said that the painting was worth $1.7m but that the gallery would sell it to Mr. Leventis for $1m. It was later sold to Mr. Leventis at this price. In the light of Miss Beston's agreement to waive its commission Mr. Leventis thought that Bacon would receive the full $1m for the picture. In fact as the documents show Bacon received only $500,000 out of the purchase price.
57. These allegations were objected to by Mr. Lyndon-Stanford as being over blown and scandalous. They are based upon information from Mr. Leventis given originally to the firm of Payne Hicks Beach (who acted for the estate) and which will, I am told, in due course be contained in a witness statement. At the moment there is no evidence before me from Mr. Leventis but only a witness statement from Mr. Lomas of Freshfields deposing to what Mr. Leventis has said. This stops short of confirming the last sentence in paragraph 56(1) that Bacon did not give his fully informed consent to Marlborough receiving $500,000 from the sale proceeds.
58. Mr. Vos accepted that this sentence was based only on inference. Mr. Leventis was not able to say for certain that Bacon did not consent to what Marlborough Liechtenstein did but it is to be inferred from his being told by Miss Beston that Marlborough would waive its commission that Bacon was not told of the true nature of the arrangements. Mr. Lyndon-Stanford relied upon an attendance note prepared by Theodore Goddard dated July 1989 which records Bacon's decision to change his will and to omit Mr. Leventis as an executor. The reason for this was that Mr. Leventis subsequently sold the painting for a profit having been able to buy it on favourable terms. The attendance note records Bacon as referring to his having sold the painting to Leventis at a "reasonable price". This is said to indicate that Bacon was aware of the price paid by Leventis and therefore of the profit made by Marlborough. It may very well be that Mr. Lyndon-Stanford is right about this but again this is an issue for trial.
59. In the light of my judgment that there is a triable issue as to the existence of a fiduciary relationship in 1964 and thereafter, I can deal with this aspect of the case very shortly. If proved the fiduciary relationship would require the successive Marlborough companies to justify any purchases at the prices they paid for as long as the fiduciary relationship subsisted. It will be the Claimant's contention that this continued until Bacon's death. After 1964 Old Marlborough through Miss Beston and others continued to act in the management of Bacon's artistic and personal affairs (Amended Particulars of Claim paragraph 22) and this state of affairs is said to have persisted thereafter under both Marlborough UK and Marlborough Liechtenstein (Amended Particulars of Claim paras 26 and 28).
60. Mr. Briggs submitted to me that I could resolve the issue of undue influence on the basis that if the fiduciary duties pleaded were not part of the "arrangement of convenience" between Bacon and the gallery then it was difficult to see how a case of presumed undue influence could arise. I can see the force of that submission but the premise upon which it is based cannot (for the reasons I have given) be established on this application. Nor is the alleged fiduciary relationship based solely on the continuation of a sales agency. It depends both on that and the wider relationship referred to in Annex B, paras 4,7 and 11 and Part B of the Amended Particulars of Claim. This relationship was transferred through Frank Lloyd and others to Marlborough UK and from 1972 Marlborough Liechtenstein and continued from then on in the same vein: see Amended Particulars of Claim Sections E1 – E6. Clearly the case on presumed undue influence and abuse of confidence arises out of the same factual relationship. In Re Brocklehurst [1978] Ch. 14 at page 42 Bridge LJ described the essential features of the necessary relationship in these terms:
In my view, the distinguishing characteristics which are more helpful in enabling the court to recognise a relationship between donor and donee giving rise to the presumption are a duty on the donee to advise the donor, or a position of actual or potential dominance of the donee over the donor. In all the decided cases to which we have been referred one or other or both of these characteristics can be discerned.
But the courts have also warned of the dangers of too strict a formulation. In Goldsworthy v Brickell [1987] Ch. 378 at page 401 Nourse LJ said this:
At least since the time of Lord Eldon, equity has steadfastly and wisely refused to put limits on the relationships to which the presumption can apply. Nor do I believe that it has even been distinctly held that there is any relationship from which it cannot in any circumstances be dissociated. But there are several well defined relationships, such as parent and child, superior and member of a sisterhood, doctor and patient and solicitor and client, to which the presumption is, as it were, presumed to apply unless the contrary is proved. In such relationships it would seem that you only have to look at the relative status of the parties in order to presume that the requisite degree of trust and confidence is there. But there are many and various other relationships lacking a recognisable status to which the presumption has been held to apply. In all of these relationships, whether of the first kind or the second, the principle is the same. It is that the degree of trust and confidence is such that the party in whom it is reposed, either because he is or has become an adviser of the other or because he has been entrusted with the management of his affairs or everyday needs or for some other reason, is in a position to influence him into effecting the transaction of which complaint is later made. And with respect to certain arguments which have been advanced in the present case it is here necessary to state the obvious, which is that in cases where functions of this sort constitute the substratum of the relationship, there is no need for any identity of subject matter between the advice which is given or the affairs which are managed on the one hand and the transaction of which complaint it made on the other. Nor, as will be shown, is it necessary for the party in whom the trust and confidence is reposed to dominate the other party in any sense in which that word is generally understood.
It will be a matter for the trial as to whether a relationship of this kind existed and if so whether it was abused.
61. In paragraphs 32 and 33 of the Amended Particulars of Claim it is alleged that both Marlborough UK and Marlborough Liechtenstein acted as Bacon's agent in the production, distribution and commercial exploitation of lithographs. It is further alleged (Amended Particulars of Claim para 57) that they have failed to account for some lithographs "made or authorised to be made by them and/taken into their possession or control". Particulars are given in Part E5 of various editions of lithographs known to exist and schedules of various editions and their dates, numbers and publishers are contained in Schedules 3 and 3A to the Amended Particulars of Claim.
62. The pleading accepts that the production of lithographs was authorised and indeed clause 2 of the 1958 agreement provided a contractual authority to that effect. The claim is that the lithographs were produced in effect for Bacon and the Defendants must account to his estate for the lithographs or their proceeds unless they can show that Bacon authorised them to keep them. In some cases this was done but the estate does not have a complete record of which editions were given away and requires Marlborough to account. The claim is therefore a claim to ownership of the lithographs or the proceeds of their sale. It is not a claim for breach of copyright.
63. A considerable amount of evidence has been produced as to whether Marlborough UK as opposed to Marlborough Liechtenstein produced lithographs and as to whether Bacon agreed to transfer ownership in particular editions. I do not intend to enter into an examination of that evidence short of a trial and Mr. Briggs accepted that there were obvious issues about consent. His principal argument was that the claims were time barred but I shall come to that when I consider the question of limitation.
64. The proposed amendments do not add or substitute new claims within the meaning of CPR. Rule 17.4 and limitation is not therefore an objection to my granting permission to amend. It is a matter relied upon by the Defendants as part of their application for judgment under Part 24 and to strike out under Part 3.4.
65. The Defendants' case is that each of the claims set out in the prayer based on the alleged breaches of fiduciary duty and presumed undue influence is now time barred because a Court of Equity would before 1st July 1940 have applied the statutory time limits to those claims by analogy: see Limitation Act 1980 Section 36(1)(f). I was referred by Mr. Cunningham and Mr. Briggs to the decision of Mr. Jules Sher Q.C. (sitting as a Deputy High Court Judge in the Chancery Division) in Coulthard v Disco Mix Club Limited [2000] 1 WLR 707 where he had to consider the application of the statute by analogy to claims for breach of fiduciary duty in relation to some management and agency agreements between a disc-jockey and the defendant companies. Under these agreements the defendants were to market and exploit remixed sequences of popular songs prepared and recorded by the plaintiff. In the action the plaintiff sought an account based on allegations of deliberate under-accounting in breach of fiduciary duty. The breaches of duty were alleged to have been dishonest and the defendants were said to be liable to account as constructive trustees for certain monies in their hands.
66. The learned Deputy Judge held that the claims were time barred by analogy because the claims for failure to account were essentially contractual and the allegations of breach of fiduciary duty were based upon the same facts as a common law claim for fraud to which a six year limitation period would apply. Equity would therefore follow suit. The breaches of fiduciary duty were no more than the equitable counterparts of the claim at common law. In that case reliance was also placed upon the allegation of a constructive trust as attracting s.21 of the 1980 Act which provides that no limitation period shall apply to a claim by a beneficiary under a trust in respect of a fraudulent breach of trust or to recover from the trustee trust property in the possession of the trustee or converted to his use. Section 38 of the Act defines "trust" and "trustee" by reference to s.68 (17) of the Trustee Act 1925. This extends the meaning to include "implied and constructive trusts". Mr. Sher Q.C. rejected reliance upon s.21 on the basis that the constructive trust pleaded was essentially remedial in nature or to use his words "was nothing more than a formula for equitable relief". It was to be contrasted with a true constructive trust which arose when a person had already assumed the duties of a trustee or fiduciary and had then received the trust property as a result of a transaction "by which both parties intended to create a trust from the outset". In reaching this conclusion he relied upon the earlier decision of the Court of Appeal in Paragon Finance plc v D.B. Thakerar & Co. [1999] 1 AER 400 in which the plaintiff also sought the protection of s.21 in relation to a remedial constructive trust. At page 409 Millett L.J said this:
A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. In the first class of case, however, the constructive trustee really is a trustee. He does not receive the trust property in his own right but by a transaction by which both parties intend to create a trust from the outset and which is not impugned by the plaintiff. His possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust. Well-known examples of such a constructive trust are McCormick v Grogan (1896) LR 4 HL 82 (a case of a secret trust) and Rochefoucald v Boustead [1897] 1 Ch 196 (where the defendant agreed to buy property for the plaintiff but the trust was imperfectly recorded). Pallant v Morgan [1952] 2 All ER 951, [1953] Ch 43 (where the defendant sought to keep for himself property which the plaintiff trusted him to buy for both parties) is another. In these cases the plaintiff does not impugn the transaction by which the defendant obtained control of the property. He alleges that the circumstances in which the defendant obtained control make it unconscionable for him thereafter to assert a beneficial interest in the property.
The second class of case is different. It arises when the defendant is implicated in a fraud. Equity has always given relief against fraud by making any person sufficiently implicated in the fraud accountable in equity. In such a case he is traditionally though I think unfortunately described as a constructive trustee and said to be 'liable to account as constructive trustee'. Such a person is not in fact a trustee at all, even though he may be liable to account as if he were. He never assumes the position of a trustee, and if he receives the trust property at all it is adversely to the plaintiff by an unlawful transaction which is impugned by the plaintiff. In such a case the expressions 'constructive trust' and ' constructive trustee' are misleading, for there is no trust and usually no possibility of a proprietary remedy; they are 'nothing more than a formula for equitable relief': Selangor United Rubber Estates Ltd v Cradock (No.3) [1968] 2 All ER 1073 at 1097 [1968] 1 WLR 1555 at 1582 per Ungoed-Thomas J.
……………
The importance of the distinction between the two categories of constructive trust lies in the application of the statutes of limitation. Before 1890 constructive trusts of the first kind were treated in the same way as express trusts and were often confusingly described as such; claims against the trustee were not barred by the passage of time. Constructive trusts of the second kind however were treated differently. They were not in reality trusts at all, but merely a remedial mechanism by which equity gave relief for fraud. The Court of Chancery, which applied the statutes of limitation by analogy, was not misled by its own terminology; it gave effect to the reality of the situation by applying the statute to the fraud which gave rise to the defendant's liability.
Millett LJ went on in his judgment to express the view that the distinction between true and remedial constructive trusts did survive the passing of the 1939 Limitation Act so as to exclude the protection of the latter by what is now s.21 of the 1980 Act. This view was followed and applied by Mr. Sher Q.C. in Coulthard. At page 732 he said:
What the Paragon Finance case makes clear is that the critical boundary in these cases lies between those cases where the defendant is a true trustee (be it of an express trust or a constructive trust) and those where he is not. In the Nelson v Rye relationship, which is the same in this respect as Mr. Coulthard's and Mr. Prince's relationship, the relationship is not that of trustee and beneficiary. The touchstone of a true trusteeship is trust property. There is no allegation or evidence (save possibly in two minor respects) that D.M.C. was required to keep moneys reaching it as a result of commercial exploitation of Mr. Coulthard's mixes separate from its own moneys. Everything in the pleading and evidence is consistent with the idea that D.M.C. was free to mix such moneys with its own and then account at some later point in time to Mr. Coulthard, after deduction of the appropriate commission. In its essence the commercial relationship engendered personal claims between them rather than proprietary ones. At no stage in Mr. Coulthard's pleading or evidence is an asset or fund identified as an asset or fund which is or should have been held in a trustee capacity. That is why this dispute attracts the application of the six year limit under section 5 of the Act, directly or by analogy. Had there been a true trust of property alleged, the relevant s ection would have been section 21; and to the extent to which there was fraud, or a receipt by the trustee and conversion to his use, there would not have been any limitation defence.
67. Based on this the Defendants contend that the constructive trusts pleaded in paragraphs 1 and 2 of the prayer are of the remedial kind and the claims for breach of fiduciary duty which underpin them are now time barred more than six years after Bacon's death. This applies to both the claims in breach of fiduciary duty and abuse of confidence and also to the claims for presumed undue influence.
68. The Claimant's response to this is that the constructive trusts alleged are not merely remedial as such but arise from a pre-existing fiduciary relationship under which the Defendants were obliged to account for all their dealings with Bacon's work and for all monies received: see Amended Particulars of Claim paragraph 46(3). Their duties therefore related to the use of his property. They received it as fiduciaries and were in fact trustees of it liable to account for its subsequent use and disposal. It does not matter, says Mr. Vos, that there was no express requirement to keep the proceeds of sale separate. That follows from the existence of the trust. The need to identify an obligation to keep monies separate may be essential to convert a contractual obligation to account into a claim for a constructive trust but it is unnecessary when it is clear that the trust relationship in respect of the property has always existed. In respect of undue influence it is clear from the authorities, he said, that the Courts of Equity did not and would not have applied the statute by analogy before 1940.
69. I am very far from satisfied that a Court of Equity would ever have barred a claim in undue influence by analogy with the statute. No case has been found in which this was done and in Coulthard Mr. Sher Q.C. seems to have accepted (see page 725G) that the only available defences would be laches and acquiescence. Further confirmation of this can be found in Allcard v Skinner (1887) 36 Ch.D.145 at pages 174 and 186. I am not therefore prepared to strike out these claims on the basis that they are time barred. Although the arguments relating to breach of fiduciary duty are more difficult I am again not satisfied that this is a case which clearly falls into the category of a remedial as opposed to a true constructive trust and I prefer to reserve that question to the trial. Given that the claims based on presumed undue influence must go forward I can also see no advantage in attempting to eliminate the claims for breach of fiduciary duty which are based on essentially the same facts. This includes the claims to the lithographs and the Prudence Cuming archive. In these circumstances it is unnecessary for me to deal further with the Claimant 's alternative plea of concealment contained in Part E 12 other than to record that sub-paragraphs 71(1) to (3) which refer to the 1992 £1.6m invoice are no longer relied upon as instances of deliberate concealment and will be deleted from the pleading when served.
70. I now turn to some matters of detail affecting the form of the amended pleading. As I indicated earlier in this judgment I am concerned that this pleading should be easily intelligible and avoid later disputes as to the true scope and nature of the Claimant's case. With this in mind the following matters need to be re-considered before I am prepared to give permission to amend.
71. The summary of the case contained in paragraphs 1-15 should be deleted. It is unnecessary and because it compresses and summarises the main components of the claim it may lead to disputes and misunderstandings.
72. Part B: The Old Marlborough Period: the pleading should clearly address the position not only as at the end of this period but also in 1964 when a fiduciary relationship and agency is alleged to have existed. For the reasons explained earlier the Defendants are entitled to know in clear terms precisely what fiduciary duties are alleged to have existed in the period from 1964 to 1968. It is also unsatisfactory for paragraph 23 of the Amended Particulars of Claim to plead duties in rather general terms and for paragraph 13 of Annex B to plead a number of specific duties. It should be made clear whether paragraph 23 is merely a shorthand for paragraph 13. Annex B also needs to be tidied up and re-arranged. The relationship between paragraphs 13 and 14 is awkward (why do they need to be separate paragraphs?) and the references to a "said agency" should be eliminated. This is a point which is of general application to the proposed pleading. References to "said" should (unless clearly unnecessary) be replaced by references to the agency referred to in a stated paragraph. The pleading of clause 2 of the 1958 agreement in paragraphs 19 and 22(3) of the Amended Particulars of Claim should also be revised to expressly plead the alleged continuation of those arrangements after 1964.
73. Those parts of section E which are intended only to serve as particulars of primary allegations in other paragraphs should be clearly identified as such and that part of the pleading re-ordered. The opportunity should be taken to amalgamate the remaining parts of paragraphs 39 and 39A and 40 and 40A.
74. Subject to the changes referred to above I will grant the Claimant permission to amend the Particulars of Claim. This will be on the usual terms as to costs thrown away. It follows that the Part 24 and the Part 3.4 applications fail and will be dismissed.
Alien Home School of Bacon Alien Gallery Alien 2 Gallery Bacon Gallery
Sensation Portraits Intense Interview Intense Interview 2 Bacon News