A recipe for failure: Reggae Reggae appeal is dismissed

The caption reads "Put some music in
your food". The IPKat fervently
hopes this music is licensed ...

At the IPKat's annual Intellectual Property Publishers and Editors lunch at Simmons & Simmons yesterday, this Kat heard an interesting statement from host and fellow Antipodean David Stone:

‘in Australia buffet lunches are like a competitive sport’.  

For reasons unknown to this Kat, it was that comment which reminded her of the imperative need to inform readers of the latest course in the Reggae Reggae Sauce theft-of-a-recipe case.  See previous Katposts: here , here and 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 Mr Roots (namely that was that an oral agreement concluded between them and Mr Roots in February 2006 by which each would have an equal interest in selling the "Bailey Sauce"); 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 respect of the recipe for the “Bailey Sauce”.

In delivering his judgment in November 2011, Judge Pelling QC held 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. Judge Pelling QC concluded that he could not 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 [Merpel explains: this is a polite and legal way of saying "I won't believe you unless your opponent says you're right or you shoot yourself in the foot"]. Unfortunately, no contemporaneous documentation was available against which to test the contentions made by the parties or the evidence offered by their respective witnesses.  Accordingly, Judge Pelling QC dismissed the claims against the Reggae Reggae folk for breach of contract and misuse of confidential information.

The secret of credibility
is: look serious and keep
your mouth shut ...

In December of last year Messrs Bailey and Sylvester issued an appellant’s notice in which they sought an order setting aside Judge Pelling QC’s decision on the ground that ‘the judge was plainly wrong to have dismissed the action’.   Kitchin LJ dismissed the claimants’ application for permission to appeal. On 5 March 2012, the same two gents sought permission to adduce additional evidence on the hearing of the appeal.  This was a report from a Ms Rutter, a registered clinical and forensic psychologist, who assessed the intellectual functioning and personality characteristics of Mr Bailey.

Ms Rutter's evidence was that (a) Mr Bailey was generally a poor historian, particularly in terms of his ability to recall the chronology of events and to provide detail; (b) his IQ was 55 within the bottom 1% of the population; and (c) Mr Bailey was a ‘vulnerable’ witness requiring appropriate safeguards at the trial [This is a sign of the times, observes Merpel, and it makes a pleasant change from patent litigation -- where the parties are more likely to be hell-bent on assailing the mental capacity and intellectual ability of each other's witnesses than their own].  Following an oral hearing in July 2012 Arden LJ granted the claimants permission to appeal and adjourned the application to the hearing of the appeal.  

At the hearing the issues before the Court of Appeal were simple enough: 

(1) should Ms Rutter's report be included in the evidence on the appeal? 

(2) should the court allow the appeal in respect of either or both

(a) breach of contract,
(b) breach of confidence?

Last week, in Bailey and Williams v Graham and Levi Roots [2012] EWCA Civ 1469 (16 November 2012), the Court of Appeal unanimously dismissed the claims to adduce additional evidence and dismissed the appeal.

(1) Ms Rutter’s report

The application to adduce additional evidence was rejected because, in the judges' view, Ms Rutter's report was not likely to have an important influence on the outcome of the case.  In the breach of confidence action, Judge Pelling QC’s conclusions did not depend on the credibility of Mr Bailey.  Indeed, the conclusion that the recipe was insufficiently certain to be capable of attracting legal protection was fatal to any claim for breach of confidence, whatever the outcome of the appeal in relation to its disclosure.

In respect of the breach of contract action, Ms Rutter’s report -- far from suggesting that Mr Bailey’s evidence should have been treated as reliable -- confirmed Judge Pelling QC’s assessment that he could not safely rely on the evidence of Mr Bailey unless admitted, corroborated or against his interest.  Even if it could be said that the trial judge's reference to Mr Bailey’s ‘professed lack of understanding’ could be regarded as carrying unjustifiable overtones, there was no challenge to his conclusion that Mr Williams, whose intellectual abilities were not the subject of the application and appeal, was a dishonest witness and claimant.               

(2)  Appeal against the trial judge's decision  Counsel for the claimants submitted that the methodology of Judge Pelling QC 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.  As counsel suggested, even liars tell the truth sometimes [but dare we believe this uncorroborated statement, ponders Merpel] but -- once the judge had concluded that their evidence was unreliable -- the entirety of that witness’s evidence was rejected, including those parts which were mutually corroborative.  In relation to the breach of confidence action, the Court of Appeal reiterated that the credibility of Mr Bailey was not relevant to the judge's findings.  Further, no ground of appeal focused on any part of his decision on that claim.  At least in that respect, therefore, the appeal had to be dismissed. In relation to the breach of contract claim, the submissions for the claimants ignored the scheme of the judgment as a whole and the judge’s consideration of subsequent conduct.   Judge Pelling QC started by considering the credibility of the parties and all the other witnesses who gave evidence before him.  He did not, contrary to the suggestion of counsel for the claimants, simply reject all the evidence of Mr Bailey and Mr Williams: he only jettisoned evidence that was not admitted by the other side, corroborated or against interest.  With regard to the other witnesses, he did not simply reject the evidence of any of them; he merely recorded that caution or great caution would be required before accepting or relying on it.  In the course of this process the judge considered the evidence of all the witnesses who had given evidence before him. He balanced their evidence and the events to which they referred.  He concluded that the claimants had failed to prove their case. This was, said Kitchin LJ, an attempt to reargue the case on the facts.  The Court of Appeal could see no ground on which to interfere with the conclusions of Judge Pelling QC or the orders he made in relation to either breach of contract or misuse of confidential information.  The appeal was thus unanimously dismissed.