Claimant left with bad taste in mouth as Reggae Reggae Sauce appeal fails

In Bailey v Graham (aka 'Levi Roots') ([2012] EWCA Civ 1469, November 16 2012), the Court of Appeal has rejected the claimants’ appeal against a decision of HH Judge Pelling QC sitting as High Court judge, dismissing a claim for misuse of confidential information and breach of contract. 

The first claimant (Mr Bailey) claimed to be the creator and exclusive owner of the rights to a Jamaican-style sauce used in the preparation of ‘jerk chicken’ (the ‘Bailey Sauce’). The claimants argued that the recipe for the Bailey Sauce had been kept secret at all times and was disclosed in confidence to the first defendant in the course of a cooking demonstration, on the basis of an alleged oral agreements reached in 2006 by the claimants and the first defendant for the commercial exploitation of the Bailey sauce ('the agreement').

In 2007 the first defendant went on to launch on its own a sauce under the brand Reggae Reggae Sauce, which turned out to be a commercially successful product (after his appearance on Dragon’s Den).

The claimants argued that the Reggae Reggae Sauce was derived from the Bailey Sauce and, therefore, the first defendant’s exploitation of the Reggae Reggae Sauce:

• was in breach of the agreement; and
• constituted a misuse of the confidential information (ie, the recipe for the Bailey Sauce) disclosed to the first defendant.

The judge dismissed the breach of confidence claim on the basis that:

• on the facts, the first claimant had failed to establish that a disclosure in circumstances of confidence had actually taken place; and
• in any event, the recipe for the Bailey Sauce was not "sufficiently certain to have the necessary quality of confidence about it".

The judge noted that the recipe was "riddled with imprecision" (eg, vague instructions as to quantities and process) and, therefore, the material relied was not capable of "being realised as an actuality".

The contractual claim was rejected on the basis that, evidentially, the claimants had not established that the demonstration ever took place and that the agreement existed. The judge held that this finding was also consistent with the subsequent conduct of the parties.

Of relevance to the appeal was the methodology adopted by the judge in dealing with the evidence. The credibility of the claimants and the first defendant was in issue and the judge was not in a position to test the parties’ assertions against contemporaneous documentation as no such documents were available.

Therefore, in order to reach conclusions on issues of fact, the judge had to:

• determine the credibility of the parties and their respective witnesses;
• identify the witnesses who gave honest and truthful evidence and those whose evidence could not be accepted unless admitted, corroborated or against the party calling the witness (the parties themselves fell in the latter category); and
• on the basis of the above, attempt to make any findings and decide whether the claimants succeeded in proving their case on the balance of probabilities. 

In the appeal, the claimants sought permission to adduce the evidence of a psychologist, who had assessed Mr Bailey’s ‘intellectual functioning’ and concluded that:

• it fell within the intellectual disability range;
• Mr Bailey had "very poor verbal reasoning abilities" and extremely poor ability to "process simple material and provide a response without errors"; and
• Mr Bailey was a vulnerable individual requiring "appropriate safeguards" in the context of a trial.

As such safeguards had not been taken, the giving of the evidence by the first claimant had been affected and so had been the judge’s assessment of it. Therefore, it was necessary to have a new trial. 

The court refused to admit the psychologist’s report because:

1. with reasonable diligence, the report could have been produced before the trial in the High Court;
2. it was for the first claimant’s solicitors to "appreciate the need to do so […] and assess Mr Bailey as a client and a witness"; and
3. the report would not have had an important influence on the outcome of the case anyway. As discussed above, the breach of confidence claim was not dependent on the credibility of Mr Bailey. With regard to the breach of contract claim, the report corroborated the judge’s assessment that he could not safely rely on the first claimant’s evidence other than as per his methodology.

Further, the claimants argued that the judge's methodology led him into error because he "failed to have regard to all the evidence and did not appreciate the strength of the evidence required to establish a fraudulent claim".

The court considered the judge’s methodology appropriate in the circumstances as he had not "simply rejected all the [claimants’] evidence" (as suggested by the claimants’ counsel) but only "insofar as not admitted, corroborated or against interest".

The court concluded that the appeal was "an attempt to reargue the case on the facts" and that there were no reason for interfering with the judge’s conclusions.  

Cam Gatta, D Young & Co LLP, London