British art establishment 'painted American buyer as a villain' says lawyer for Pontormo case

It was not the likeliest source of gossip, intrigue and calls to change the very law: an unassuming portrait of a young man in his red cap described as a masterpiece of Florentine mannerism.

But a 1530 Pontormo painting last year provided the biggest upset in the UK art world, after being bought by an American collector then "saved for the nation" by the National Gallery only for the deal to fall through.

The case led to calls for the UK's export system to be overhauled, with critics including the Art Fund calling it a "great cultural loss to the nation”.

But representatives for Tom Hill, the painting's new owner, have today disclosed the lengths he went to to ensure the Pontormo could go on public display in the UK, suggesting he has been unfairly portrayed as a villain and placed under public pressure to lose out on $10 million (£8 million).

Mr Hill, the American art dealer and buyer of Portrait of a Young Man in a Red Cap, had worked to make a deal with the gallery and had long warned them he would not be able to follow it through after the Brexit vote changed the exchange rate, his lawyer said.

The painting has become the subject of frustration in the UK art scene after it was made the subject of the export ban and a fundraising campaign by The National Gallery to save it for the nation.

The gallery had pledged to raise £30.6m to keep it, successfully finding the money before announcing the agreement had fallen through.

The episode has been heavily criticised, and resulted in calls for changes to the export ban system to compel owners to sell their paintings to national institutions that can raise the money.

The current guidelines do not force an owner to hand over the works, but many have done so in the past.

Dr Stephen Deuchar, Art Fund director, said earlier this month: “News that Tom Hill, the American buyer of Pontormo’s Portrait of a Young Man in a Red Cap, has refused The National Gallery’s matching offer of over £30m, marks a great cultural loss to the nation.”

But Roland Foord, who represented Mr Hill at legal firm Stephenson Harwood, said the art collector had been left “bruised” after being unfairly painted as the “bad character in the cast”, and could not have been expected to absorb such a heavy financial loss.

He argues calls for the export system to be changed because of the case are misdirected, with the "exceptional nature" of the Pontormo case an anomaly in guidelines that generally work well.

He disclosed Mr Hill had initially agreed to the deal with The National Gallery after buying the painting from the Earl of Caledon in 2015, applying for an export licence to take it home to America before being told it must first be given a chance to stay in Britain under current rules.

The Arts Council set the sum of £30.6m to be raised by an institution that would put it on public display; then the equivalent of the sum Mr Hill had paid in dollars.

But, Mr Foord said, the effect of the Brexit vote on the value of sterling had left Mr Hill $7 million out of pocket by July, and up to $10m since. The painting is also understood to have risen significantly in value, as the art market moved on in the interim.

Mr Foord confirmed he had written to the Arts Council immediately, in July, to ask that it be taken into account in The National Gallery’s fundraising efforts and give fair warning a deal might not go through under its initial terms.

The gallery ploughed on with fundraising, but when no concessions matching the sum in dollars were forthcoming, Mr Hill eventually declined to sell the work with a formal announcement earlier this month.

Mr Hill has not yet commented publicly on the decision, with his legal representative arguing it is unfair to suggest he had breached an obligation.

The collector had made efforts to come to another deal with the gallery, involving the loan of the painting for public display, he claimed.

"He [Mr Hill] absolutely acknowledges he made that commitment and if the circumstances in which he made it had remained the same when the offer came along he would have met it," said Mr Foord.

"But a 20 per cent devaluation in sterling is a major change of circumstance.

"There’s nothing in the guidance that requires an owner to absorb any loss of that nature, let alone a loss on that scale."

Roland Foord, who represented Tom Hill

He added: "He’s been painted as the villain. For understandable reasons, it suits some people to do that. But it is unfair because it involves effectively saying to him: well, you’ve got to take this hit.

"The guidance says unequivocally that you do not have to accept.

“He has played it absolutely straight.”

Asked about calls to make the obligation for owners to sell works to the nation legally enforceable, Mr Foord added that the rights of owners not to endure significant financial loss must also be recognised.

"Most of the time, it works," he said. "It is trying to balance the interests of the owner with the interests of the nation, in a fair way. In this case, that balance has got seriously out of kilter.

"This is the wrong case on which to base a change in the system, because of the exceptional nature of the loss.

"But if the system were to be changed to introduce a legally-binding commitment, there would need to be some counterbalancing provision to ensure that the owner wasn’t penalised thereby and was properly compensated."

The painting will now remain in Britain indefinitely after an export licence was refused.