Food and Dragons - the Levi Roots Appeal
Last Christmastide I blogged HH Judge Pelling's decision in Bailey and another v Graham and Others [2011] EWHC 3098 (Ch) (25 Nov 2011) in "Is there any IP in Recipes? Reflections on the Reggae Reggae Case" 5 Jan 2012. I shall return to the theme this Christmastide to blog the appeal (or rather application for permission to appeal) in Bailey and Another v Graham (aka "Levi Roots") and Others [2012] EWCA Civ 1469. This application came on before Sir Andrew Moritt, Chancellor and Lord Justices Longmore and Davis on the 16 Nov 2012.
The first defendant Keith Valentine Graham is best known to the public as Levi Roots, He appeared on the TV programme "Dragons Den" to promote his jerk sauce where he attracted £50,000 of investment. Upon the insistence of his backers he incorporated the third defendant, Roots Reggae Reggae Sauce Ltd, which in turn licensed G Costa & Co Ltd to make and distribute his sauce in accordance with his recipe, He has not looked back. Jamaican food, which was rarely tasted outside Afro-Caribbean homes, has become enormously popular with the general public including Dalmatian dogs as in the clever video on their website.
The case that I blogged earlier in the year was a claim by Anthony Bailey and Sylvester Williams, to a share in that success on the ground that Mr. Bailey had created the recipe for the sauce. The trial, which went on from the 8, 10, 14 to 17 and 21 and 22 Nov 2011 and involved 18 witnesses of fact and one expert, was decided entirely on the facts. The judge found that he could not rely on either party's testimony and constructed his judgment on the evidence upon which he could rely that resulted in his throwing out the claim.
Because the case was decided on the facts the trial judge refused permission to appeal. The claimants applied to Lord Justice Kitchin who dismissed the application on the ground that no issue of law or principle had been raised and that the appellants sought to re-argue the case on the facts. Undaunted, the claimants obtained a report from a clinical and forensic psychologist on the intellectual functioning and personality characteristics of Mr. Bailey. After administering a number of tests and interviewing him for several hours, the psychologist observed at paragraph [37] that
"Mr Bailey was generally a poor historian, particularly in terms of his ability to recall the chronology of events and to provide detail".
She concluded that he was "a vulnerable individual" with "a significant intellectual impairment, poor verbal memory and a tendency to change his answers in response to repeated questioning." Were he to interviewed by the police, she continued, he would be considered to be vulnerable in terms of s.77 of the Police and Criminal Evidence Act (1983) and provided with an appropriate adult. His level of cognitive functioning and personality characteristics would also be taken into consideration during a trial and that appropriate safeguards, such as having questions presented to him in simple language, put in place. She respectfully suggested that,
"had the court been aware of Mr Bailey's vulnerabilities at the time of his unsuccessful claim in the Chancery Division of the High Court, he could have been afforded the same considerations and that this might have enabled him to cope better under cross-examination and to provide more reliable responses to the questions that were put to him."
The application was for permission to adduce this additional evidence which, it was argued, would have resulted in the judge's finding for Mr Bailey and Mr Williams.
The first defendant Keith Valentine Graham is best known to the public as Levi Roots, He appeared on the TV programme "Dragons Den" to promote his jerk sauce where he attracted £50,000 of investment. Upon the insistence of his backers he incorporated the third defendant, Roots Reggae Reggae Sauce Ltd, which in turn licensed G Costa & Co Ltd to make and distribute his sauce in accordance with his recipe, He has not looked back. Jamaican food, which was rarely tasted outside Afro-Caribbean homes, has become enormously popular with the general public including Dalmatian dogs as in the clever video on their website.
The case that I blogged earlier in the year was a claim by Anthony Bailey and Sylvester Williams, to a share in that success on the ground that Mr. Bailey had created the recipe for the sauce. The trial, which went on from the 8, 10, 14 to 17 and 21 and 22 Nov 2011 and involved 18 witnesses of fact and one expert, was decided entirely on the facts. The judge found that he could not rely on either party's testimony and constructed his judgment on the evidence upon which he could rely that resulted in his throwing out the claim.
Because the case was decided on the facts the trial judge refused permission to appeal. The claimants applied to Lord Justice Kitchin who dismissed the application on the ground that no issue of law or principle had been raised and that the appellants sought to re-argue the case on the facts. Undaunted, the claimants obtained a report from a clinical and forensic psychologist on the intellectual functioning and personality characteristics of Mr. Bailey. After administering a number of tests and interviewing him for several hours, the psychologist observed at paragraph [37] that
"Mr Bailey was generally a poor historian, particularly in terms of his ability to recall the chronology of events and to provide detail".
She concluded that he was "a vulnerable individual" with "a significant intellectual impairment, poor verbal memory and a tendency to change his answers in response to repeated questioning." Were he to interviewed by the police, she continued, he would be considered to be vulnerable in terms of s.77 of the Police and Criminal Evidence Act (1983) and provided with an appropriate adult. His level of cognitive functioning and personality characteristics would also be taken into consideration during a trial and that appropriate safeguards, such as having questions presented to him in simple language, put in place. She respectfully suggested that,
"had the court been aware of Mr Bailey's vulnerabilities at the time of his unsuccessful claim in the Chancery Division of the High Court, he could have been afforded the same considerations and that this might have enabled him to cope better under cross-examination and to provide more reliable responses to the questions that were put to him."
The application was for permission to adduce this additional evidence which, it was argued, would have resulted in the judge's finding for Mr Bailey and Mr Williams.
The Court of Appeal rejected the application for three reasons. The first was that the claimants could have obtained a report from a psychologist before the trial had they so wished. As the Chancellor put it at paragraph [44]:
"there can be no doubt but that the evidence could have been available to Mr Bailey and Mr Williams before the trial because Mr Bailey could have submitted himself for examination by [the psychologist] at any time. Whether or not so to do was a matter for the claimants and their advisers, not the defendants. It is said that his solicitors did not appreciate the need to do so, but it was for them to assess Mr Bailey as a client and witness. They do not say what steps they took to do so. They could have obtained this evidence and applied for special measures, if so advised, but did not. The fact is that this evidence was always available to the claimants; the question of diligence does not arise."
Secondly, the evidence would have made no difference even if it had been heard at trial:
"The judge's conclusions on breach of confidence do not depend on the credibility of Mr Bailey. I have referred to the relevant findings in paragraphs 31 to 33 above. The judge's conclusion that the recipe was insufficiently certain is fatal to any claim for breach of confidence, whatever the outcome of the appeal in relation to its disclosure."
Finally, the Chancellor referred to the substance of the report at paragraph [46] and concluded that it actually confirmed the trial judge's assessment that Mr Bailey was an unreliable witness:
"Though Mr Bailey's IQ, verbal comprehension and processing speed is very low he is not abnormally suggestible or acquiescent. In addition he has a very poor memory and a tendency to change his answers under cross-examination. But this evidence, far from suggesting that Mr Bailey's evidence should have been treated as reliable, confirms the judge'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 judge's reference to Mr Bailey's "professed lack of understanding" could be regarded as carrying unjustifiable overtones there is no challenge to his conclusion that Mr Williams was a dishonest witness and claimant."
Although the dismissal of the application disposed of the appeal, the Chancellor considered the various grounds which criticized Judge Pelling's methodology and his consistency in applying it. The Chancellor and Lord Justices rejected the criticisms though they cautioned at paragraph [59] that "The methodology is only appropriate in cases, such as this, where there is no undoubted starting point. In other cases the conventional approach is best used to avoid error."
"there can be no doubt but that the evidence could have been available to Mr Bailey and Mr Williams before the trial because Mr Bailey could have submitted himself for examination by [the psychologist] at any time. Whether or not so to do was a matter for the claimants and their advisers, not the defendants. It is said that his solicitors did not appreciate the need to do so, but it was for them to assess Mr Bailey as a client and witness. They do not say what steps they took to do so. They could have obtained this evidence and applied for special measures, if so advised, but did not. The fact is that this evidence was always available to the claimants; the question of diligence does not arise."
Secondly, the evidence would have made no difference even if it had been heard at trial:
"The judge's conclusions on breach of confidence do not depend on the credibility of Mr Bailey. I have referred to the relevant findings in paragraphs 31 to 33 above. The judge's conclusion that the recipe was insufficiently certain is fatal to any claim for breach of confidence, whatever the outcome of the appeal in relation to its disclosure."
Finally, the Chancellor referred to the substance of the report at paragraph [46] and concluded that it actually confirmed the trial judge's assessment that Mr Bailey was an unreliable witness:
"Though Mr Bailey's IQ, verbal comprehension and processing speed is very low he is not abnormally suggestible or acquiescent. In addition he has a very poor memory and a tendency to change his answers under cross-examination. But this evidence, far from suggesting that Mr Bailey's evidence should have been treated as reliable, confirms the judge'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 judge's reference to Mr Bailey's "professed lack of understanding" could be regarded as carrying unjustifiable overtones there is no challenge to his conclusion that Mr Williams was a dishonest witness and claimant."
Although the dismissal of the application disposed of the appeal, the Chancellor considered the various grounds which criticized Judge Pelling's methodology and his consistency in applying it. The Chancellor and Lord Justices rejected the criticisms though they cautioned at paragraph [59] that "The methodology is only appropriate in cases, such as this, where there is no undoubted starting point. In other cases the conventional approach is best used to avoid error."
Shortly after I had published my case note on the trial my friends Lisa and Helen Tse, who run the excellent Sweet Mandarin restaurant in Manchester, asked me about intellectual property in recipes. I sent them my post. I should mention that Helen is also a solicitor and author as well as a restaurateur and entrepreneur. Her works include Sweet Mandarin an inspiring story of the family's Odyssey from China to Manchester which I thoroughly recommend. Helen and Lisa were also on Dragons' Den recently to seek investment for the manufacture and promotion of their Barbecue, Sweet & Sour and Sweet Chilli Dipping Sauces and I am glad to say that they were successful. You can see a video of their appearance on Dragons' Den in an article on the Festival of Business (25 Oct 2012) on my other blog, IP Northwest. As a Mancunian I am just so proud of those sisters.
As I have been getting a lot of instructions from the food and catering industries lately I am thinking of running a one day conference on IP and Food in the New Year. Topics will cover recipes as trade secrets, branding of food products covering trade marks registration, domain names and geographical indications and of course contracts of all kinds. I will also offer a platform for my clients to talk about their experiences as well as angels, VCs, representatives of local enterprise partnerships which promote local producers and others. Should anyone wish to attend, speak at or even sponsor such a conference they should call me on 0161 850 0080 or send me a message through my contact form. They can also follow me through Facebook, Linkedin, twitter or Xing.
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