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Wednesday, 30 November 2011

Lack of credible witnesses and evidence: a recipe for failure


Being a self confessed 'foodie', this Kat has been following the Reggae Reggae Sauce case with interest (see her previous Katpost here). As readers will recall, these proceedings involved (a) a claim by Mr Bailey and Mr Sylvester of an alleged breach of contract on the part of Levi Roots; and, (b), in the alternative, a claim by Mr Bailey of an alleged breach of a duty of confidence that he alleges was owed to him by Mr Roots. In delivering his judgment on Friday, Judge Pelling QC emphasised (at [3]) that 'the legal onus of proving the case they advance rests on the claimants who must prove their case on the balance of probabilities if their claim is to succeed'.

Witness credibility was a major factor during the trial. On this point, the judge concluded (at [15]) that he 'cannot safely rely upon the evidence of either claimant or the first defendant save to the extent that the evidence of each is admitted or corroborated or is against the interest of that witness'. Unfortunately, no contemporaneous documentation was available against which to test the contentions made by the parties and the evidence of their respective witnesses.

The main basis for the case brought by Messrs Bailey (left) and Sylvester was that an oral agreement was concluded between them and Mr Roots in February 2006 by which each would have an equal interest in selling the "Bailey Sauce". Mr Bailey claimed that he first devised this sauce in Jamaica in 1984, the recipe of which he kept so secret by supposedly first writing it down and then memorising it before destroying the paper record when he moved to London. Mr Bailey alleged that, following the making of this agreement, he demonstrated to Mr Roots how to make the Bailey Sauce in the presence of a mutual friend and experienced chef, Carlos Hoffmann.

Mr Roots' version of events is rather different. He claimed that he wanted to show Mr Bailey how he was making his sauce. With that in mind, Mr Roots purchased some ingredients and, in the course of doing so, met Mr Hoffman -- whom he also invited to watch him make his sauce. Mr Roots maintains that Mr Bailey was not interested and left after a few minutes.

Levi Roots
The judge was highly critical of Mr Bailey's version of events. He stated (at [70]) that it was inherently unlikely that Mr Bailey would be prepared to demonstrate an allegedly secret recipe in the presence of a trade rival, Mr Hoffmann. Not merely would that defeat or at least run the risk of defeating the secrecy that Mr Bailey says he had maintained for more than 20 years prior to the events in question, but it would also involve the risk of damaging or destroying the successful launch of the business which, both Mr Bailey and Mr Sylvester asserted, it had been agreed should be run as a joint venture with Mr Roots between them only a few days before. For the judge it was 'quite simply inconceivable' that Mr Bailey would have been prepared to adopt such an approach.

Satisfied that Messrs Bailey and Sylvester had failed to prove their version of the demonstration, the judge added (at [84]) that 'the probability is that if there was any attempted demonstration at all the circumstances are likely to be broadly as described' by Mr Roots (right). For the judge (at [85]), this conclusion tended to support Mr Roots' case that there was never an agreement to the effect alleged by Messrs Bailey and Sylvester to manufacture the Bailey Sauce. As those two gentlemen were unable to discharge their onus to establish the oral agreement for which they contend, their claim failed.

Mr Bailey's claim for breach of confidence arose from his alleged exclusion from the exploitation of the "Bailey Sauce" by Mr Roots. In order to succeed, Mr Bailey had to establish that the recipe for which he claimed confidence was imparted to Mr Roots in circumstances imposing an obligation of confidence. On the basis of his findings that Mr Bailey's case on the alleged demonstration was to be rejected, the judge stated (at [103]) that the breach of confidence action must fail because there was 'no other basis by which it could be alleged that the recipe was supplied to the first defendant in circumstances importing an obligation of confidence'. In any event, he also questioned (at [104]) 'whether the recipe on which reliance was placed ... was sufficiently certain to have the necessary quality of confidence about it to found a claim for breach of confidence'.

The IPKat believes that this case is an excellent example of the necessity of maintaining a paper trail. The onus was on Mr Bailey to prove his claims, and this was always going to be an uphill battle when nothing was written down. Even though Mr Roots was technically the victor in these proceedings, the IPKat also wonders what will happen to his personal reputation and to that of the Reggae Reggae brand after he admitted in court that much of the story behind his Reggae Reggae Sauce and his appearance on Dragon's Den was 'wholly untrue'.

Merpel agrees with Judge Pelling QC (at [105]) that Mr Bailey's recipe was riddled with imprecision. To make 25 litres of sauce, there is definitely going to be a significance difference in taste (and bad breath in humans) in '2-3 lbs of chopped onion'. On this basis alone, Merpel could never try Mr Bailey's recipe, since onions can cause anaemia in cats ...

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