Anthony Bailey and another v Keith Graham and others [2011] EWHC 3098 (Ch)
“Levi Roots” (otherwise known as Keith Graham) has won his High Court battle against claims of breach of contract and breach of confidence in relation to his Reggae Reggae Sauce, but at the cost of revealing that the sauce is not based on a secret family recipe. Mr Graham is best known for appearing on the 2007 series of the BBC programme “Dragon’s Den”
The facts
In 2007, Mr Graham secured £50,000 from the Dragon’s Den “Dragons” for the development and marketing of his Reggae Reggae Sauce which he claimed was based on a secret family recipe for Jamaican Jerk chicken/BBQ sauce. The sauce went on to be sold through national supermarket chain Sainsbury’s, selling almost 500,000 bottles in the first three months.
The claim against Mr Graham and his companies Levi Roots’ Reggae Reggae Foods Ltd and Levi Roots’ Reggae Reggae Sauce Ltd, was twofold:
- Breach of contract
The first claimant, Brixton café owner Mr Bailey, claimed that the recipe for the sauce was in fact his. Mr Bailey argued that he developed the sauce in Jamaica where he memorised the recipe and then destroyed all paper records before moving to the UK.
Mr Bailey claimed that he entered an oral agreement with Mr Graham that he would share his recipe in return for a share of the profits.
- Duty of confidence
It was claimed, in the alternative, that Mr Bailey shared his secret recipe with Mr Graham in a cooking demonstration under circumstances of confidence and Mr Graham breached the duty of confidence when he claimed the recipe as his own calling it Reggae Reggae Sauce and using it for his own commercial exploitation.
Mr Graham argued in his defence that, although his Reggae Reggae Sauce was not a family recipe as stated on the bottle, he developed the sauce himself through experimenting with ingredients to recreate the flavours his grandmother used to cook for him.
The law
The criteria for establishing a cause of action for breach of confidence is set out by Megarry J in Coco v AN Clark [1969] RPC 41, 47, and requires that:
- The information must have the quality of confidence;
- It must be imparted in circumstances of confidence; and
- There must have been an unauthorised use of it to the detriment of the party communicating it.
The decision
Judge Pelling QC, sitting as a judge of the High Court, dismissed both the claimants’ claim for breach of confidence and breach of contract, finding in favour of Mr Graham.
The lack of paper trail with regard to the development of the sauce by either the first claimant or the defendant, or any documentation of the commercial agreement meant that the judge did not have before him any evidence to support the oral agreement Mr Bailey claimed was in place. Furthermore, the judge could not even establish on the evidence that the recipe was ever imparted by Mr Bailey to Mr Graham in the alleged cooking demonstration. The judge expressed his concerns over the credibility of the witness evidence stating 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”. Therefore, in the absence of any documentation or credible witness evidence, the finding that there was no breach of contract was consistent with the conduct of the men after the time the proposed arrangement was made.
The second limb of the claim, that Mr Bailey imparted the recipe to Mr Graham in circumstances that attracted a duty of confidence which Mr Graham breached, was also dismissed by the judge. Having found that there was no evidence to suggest that the alleged cooking demonstration had taken place, the judge added that the quantities of ingredients and preparation techniques described by Mr Bailey were too imprecise to enable anyone to recreate the recipe to a consistent standard. Therefore, the recipe was not sufficiently well-developed to be capable of being considered confidential information, so failing the first requirement for breach of confidence.
Comment
Although it makes for an entertaining read, this case does not make new law. It does, however, demonstrate that when witness credibility is in question a paper trail on which to base a claim is critically important.
The story may not yet have ended. Despite Judge Pelling QC’s scathing criticisms of the evidence in the case, the claimants have applied for permission to appeal, scheduled to be heard in the next couple of months.
The interesting point for investors will be how the case impacts on the future marketing and success of the brand. Mr Graham admitted that the story on the sauce bottle, “Our family in Jamaica have been blending homemade jerk sauce since way back” was a fabrication, “cooked up” as a marketing ploy. This would appear to constitute a breach of the CAP Code and Consumer Protection Regulations so watch this space for a change in the Reggae Reggae marketing campaign or potential complaints to the Advertising Standards Authority or Trading Standards.
