Posted: Tuesday 8 May 2012
In a case which may unfortunately be better remembered for the comments made by Judge Pelling QC, sitting as a judge of the High Court, as to the utter lack of credibility of both the claimants and the defendants, than for the legal points it elucidates, “Levi Roots” (also known as Keith Graham) has succeeded in fighting off claims of breach of contract and breach of confidence in relation to his Levi Roots’ Reggae Reggae Sauce.
The case featured heavily in the media during the latter stages of 2011 and may now be familiar to readers.
For several years, Mr Graham and Mr Bailey had a stall at the Notting Hill Carnival in London, from which they sold chicken dishes marinaded in a traditional Jamaican-style jerk sauce. The origin of the recipe for the sauce is part of the subject of the dispute, with Mr Bailey claiming that he passed to Mr Graham a secret recipe that he had brought from Jamaica on the basis of an oral agreement that they would together exploit the recipe and share the profits of doing so. The legal claim here, then, is one of breach of contract.
In the alternative, Mr Bailey claimed that he had shared his secret recipe with Mr Graham under an obligation of confidence, which Mr Graham had breached when he used and marketed the recipe as his own.
Mr Graham disputed each of the above claims, albeit that his explanation of the origin of the recipe varied over time. When he famously appeared on the television programme Dragons’ Den, an appearance that was crucial to the success of the product, it was to promote a sauce, the origin of which was claimed to be a secret family recipe belonging to his grandmother, and which he had been selling at the Notting Hill Carnival since 1986. In submissions made to the court, he accepted that this was untrue, and explained this origin story away as ‘marketing’, saying that the recipe was in fact one that he started to develop from 2005 based on a version of a commonly known Jamaican recipe that he had been using in food sold at the carnival. Judge Pelling is scathing in his review of these ‘marketing’ inconsistencies, referring to them as ‘false representations of existing or past fact that the representor knows to be untrue’ (at para. 34).
Comments like this are entertainingly frequent in the case report, and it is made clear by Judge Pelling that issues of credibility go to the heart of this case and seriously curtail the admissibility of the evidence led by each of the parties. He notes:
I have concluded that I ought not to accept either the evidence of the first claimant or that of the first defendant save where it is against the interest of the person concerned or is admitted or is corroborated (at para. 8).
This approach makes for a fairly complex scenario whereby each line of evidence led by either the claimant or the defendant is challenged in its reliability and often admitted only to the extent that it conflicts with that version of events led by the other party (or indeed conflicts with the earlier version of events led by the first party).
Ultimately, a combination of the facts that (i) Judge Pelling cannot accept most of what each of the claimant and the defendant state because of the lack of credibility outlined above; and (ii) the onus is on the claimant to prove his claims beyond reasonable doubt, means that the claimant necessarily fails.
As outlined above, the first head of claim by Mr Bailey, and what Judge Pelling describes as ‘the foundation of [his] case’, is the contention that the recipe for the sauce was a secret that he brought with him from Jamaica – so secret, in fact that he claims to have memorized the written recipe and then destroyed the paper copy before leaving the country for London (at para. 69).
The contention by the claimant is that in January 2006 an oral agreement was reached between Mr Bailey and Mr Graham by which they agreed to participate in what Judge Pelling describes as a ‘joint venture partnership’ (at para. 12) the purpose of which was to exploit Mr Bailey’s recipe for their equal benefit. It is claimed that each partner was intended to contribute in different ways to the success of the partnership. Mr Bailey’s responsibility was to provide the recipe, and Mr Graham’s was to market the product. As a result of this oral contract, it is claimed, Mr Bailey provided Mr Graham with the list of ingredients required and with a demonstration as to how the sauce is prepared. The claimant accepts that thereafter he did nothing towards the success of the partnership.
Mr Graham’s response to these allegations is, as noted by Jude Pelling, that they are cynical and dishonest. The defendant claims that throughout the period in question, he was experimenting with different versions of the recipe. In evidence he leads a number of people on whom he claims he tested different version of the sauce, as well as the explanation that he was essentially making various versions of the same recipe with a number of different people over an extended period of time. Mr Graham’s principal response, then, is that there was nothing exclusive about the recipe – that it developed organically from a number of activities and sources, and that the trigger for commercialisation was simply developing a recipe that was capable of being produced and marketed on a large scale.
One issue that comes out of the conflicting versions of events provided by the claimant and the defendant is the lack of written evidence to support either of their claims. There is no written record of the ‘secret’ recipe in the hands of Mr Bailey; there is no written agreement pursuant to the alleged joint venture partnership; and meetings which were held between each party and other parties (for example, with a mutual friend who considered providing early stage funding) went un-minuted.
Another issue that emerges is that the terms of the letter before action sent to the defendant by the claimant’s solicitors – which is intended to allow the parties to attempt to resolve their dispute using the Pre-Action Protocols and which in normal practice would be considered by all involved in an action to be an accurate representation of a claimant’s case – are contradicted by later evidence led and statements made by Mr Bailey as to the time of disclosure of the recipe.
A final issue that Judge Pelling identifies is that the circumstances subsequent to the alleged demonstration by Mr Bailey do not tend to support the notion that a secret recipe was imparted for joint commercial gain. The demonstration was not claimed to have been repeated by Mr Bailey, no arrangement was made between the parties as to who was responsible for the manufacturing process or who would subsequently evaluate that the process had been successful in recreating the recipe, and in the claimant’s own evidence a number of other parties were present at the demonstration.
As Judge Pelling observes, the onus rests on Mr Bailey to prove on the balance of probabilities the existence and breach of a contractual agreement between himself and Mr Graham. It is clear from the judgement that he fails to do so because of (i) the lack of evidence that he leads in some respects; (ii) the contradictory nature of certain evidence that he does lead; and, (iii) the events which take place subsequent to the alleged agreement being entered into.
As outlined above, as an alternative claim to breach of contract, Mr Bailey claimed that he had shared his secret recipe with Mr Graham under an obligation of confidence, which Mr Graham had breached when he used and marketed the recipe as his own.
Breach of confidence is a claim for which there is an established test in Coco v A.N. Clark (Engineers) Limited  , and Judge Pelling refers to that case. The test requires that the claimant must prove firstly, that the information was confidential, secondly, that the circumstances in which it was imparted imposed an obligation of confidence, and finally that there was unauthorised use of the information.
Judge Pelling, having extensively considered the evidence led in relation the breach of contract claim, and having held that he could not establish for sure that the cooking demonstration at which it was claimed the confidential information was imparted took place, does not hesitate to dismiss this head of claim.
Interestingly, he goes on to question whether the recipe which was allegedly imparted in confidence was in fact sufficiently certain to have the necessary quality of confidence to found a claim for breach of confidence. At this point, referring to the actual recipe which had been provided to the court by the claimant in evidence, he notes scathingly that ‘contrary to what the first claimant considered to be the position, soy sauce and browning are different substances with different flavours and different properties’. The point, of course, is that the recipe allows sufficient room for interpretation by any chef into whose hands it fell, and is sufficiently imprecise to mean that different chefs would add different ingredients. This view of the possible confidentiality of the recipe is compounded by the fact that the recipe does not even specify whether the ingredients should in fact be cooked in any fashion. Indeed, various witnesses led by the claimant claim, in turn, both that it was and that it was not cooked.
In summary stating that he ‘question[s] whether the recipe was ever secret in any real sense at all’ (at para. 109), Judge Pelling does not hesitate to dismiss both aspects of the claim.
It is often said that there is no such thing as bad publicity, but the publicity received by each of the claimant and the defendant on the back of the evaluation of their credibility by Judge Pelling must be close to that. Whilst the defendant succeeded in defeating the claims against him, it remains to be seen what effect the scathing attack on the Levi Roots marketing and origin story will have on the brand identity and company turnover.
Anthony Bailey and another v Keith Graham and others  EWHC 3098 (Ch)
Coco v A.N. Clark (Engineers) Limited  RPC 41
This article first appeared in the March/April edition of the Harrington Law Commercial Litigation.