Levi Roots - otherwise known as Keith Graham, and famed for his appearance on the BBC programme Dragon's Den - 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.
The criteria for establishing a cause of action for breach of confidence are set out in Coco v AN Clark.(1) They state 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 such information, to the detriment of the party communicating it.
In 2007 Graham secured £50,000 from the Dragon's Den financial backers for the development and marketing of his sauce, which he claimed was based on a secret family recipe for Jamaican jerk chicken or barbecue sauce. The sauce went on to be sold through a national supermarket chain, selling almost 500,000 bottles in the first three months.
The claim against 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 his. Bailey argued that he had developed the sauce in Jamaica, where he had memorised the recipe and then destroyed all paper records before moving to the United Kingdom. Bailey claimed that he had entered into an oral agreement with 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 Bailey had shared his secret recipe with Graham in a cooking demonstration under circumstances of confidence, and that Graham had 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.
Graham argued in his defence that although his sauce was not a family recipe, as stated on the bottle, he had developed the sauce himself through experimenting with ingredients to recreate the flavours of the foods his grandmother used to cook for him.
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 Graham's favour.
The lack of a paper trail with regard to the development of the sauce - by either the first claimant or the defendant - and any documentation of the commercial agreement meant that the judge had no evidence before him to support the oral agreement that Bailey claimed was in place. Furthermore, the judge could not establish on the evidence that Bailey had imparted the recipe to Graham in the alleged cooking demonstration. The judge expressed 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 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 that the proposed arrangement was made.
The second limb of the claim - that Bailey had imparted the recipe to Graham in circumstances which attracted a duty of confidence that Graham had breached - was also dismissed. Having found that there was no evidence that the alleged cooking demonstration had taken place, the judge added that the quantities of ingredients and preparation techniques described by Bailey were too imprecise to enable anyone to recreate the recipe to a consistent standard. Therefore, the recipe was insufficiently developed to be capable of being considered confidential information, thereby failing the first requirement for breach of confidence.
Although it makes for an entertaining read, this case does not make new law. However, it demonstrates that when witness credibility is in question, a paper trail on which to base a claim is critical.
The story may not be over. Despite the judge's scathing criticisms of the evidence in the case, the claimants have applied for permission to appeal, which is scheduled to be heard in the next couple of months.
The interesting point for investors will be the impact of the case on the future marketing and success of the brand. Graham admitted that the story on the sauce bottle - which claims that "our family in Jamaica have been blending homemade jerk sauce since way back" - was a fabrication and a marketing ploy. This appears to breach the Committee of Advertising Practice Code (known as the CAP Code) and the Consumer Protection Regulations, so a change in the Reggae Reggae marketing campaign or complaints to the Advertising Standards Authority or Trading Standards may soon follow.
For further information on this topic please contact Nicole Mellors or Jeremy Drew at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email ([email protected]).