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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bailey & Anor v Graham (aka "Levi Roots") & Ors  EWCA Civ 1469 (16 November 2012)
Cite as:  EWCA Civ 1469
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE CHANCERY DIVISION (INTELLECTUAL PROPERTY)
His Honour Judge Pelling QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE DAVIS
| ANTHONY BAILEY
(2) SYLVESTER WILLIAMS
|Appellants / Claimants
|- and -
|KEITH VALENTINE GRAHAM (aka "Levi Roots")
LEVI ROOTS' REGGAE REGGAE FOODS LTD
ROOTS' REGGAE REGGAE SAUCE LTD
Mark Vanhegan QC and Chris Aikens (instructed by EMW Law LLP) for the Respondents
Hearing dates : 31 October - 1 November 2012
Crown Copyright ©
The Chancellor :
"The term `jerk' is said to come from the word `charqui' a Spanish term for jerked or dried meat, which eventually became jerky in English. Another origin is linked to the jerking or poking of the meat with a sharp object, producing holes that were then filled with the spice mixture. Like the food of most Caribbean islands, Jamaican foods are derivative of many different settlement cultures, including British, Dutch, French, Spanish, East Indian, West African, Portuguese, and Chinese. The origins of jerk pork can be traced back to the pre-slavery days of the Cormantee hunters of West Africa through the Maroons, who were Jamaican slaves that escaped from the British during the invasion of 1655. Jerk was an ingenious way to preserve meat out in the wilderness."
Mr Bailey and the second claimant ("Mr Williams") met in 1999. They became and remain friends.
"In 1984 in Jamaica, Mr Bailey created a recipe for a sauce (the "Bailey sauce") to be used on jerk chicken. He came to the UK in 1986 and continued to make and use the Bailey sauce on jerk chicken sold at the Notting Hill Carnival. When he opened his own food shop in 1998, he continued to use the sauce on his jerk chicken.
In about 1991, Mr Bailey became acquainted with Mr [Roots]. The latter assisted him on his stall at the Carnival from 1994. Later, Mr Bailey managed to secure for Mr [Roots] his own stall at the Carnival at which he supplied jerk chicken with the Bailey sauce made and supplied by Mr Bailey.
He kept the recipe a secret at all times, not even disclosing it to his own sons. However, in 2004, Mr Bailey was in hospital in London as a result of serious accident in Jamaica. Mr [Roots] was looking after the shop in his absence. The customers were demanding jerk chicken with the Bailey sauce. However, the stock of the sauce previously made up by Mr Bailey had run out. Mr Bailey's incapacity made it impossible for him to make up a new batch of the Bailey sauce. He therefore disclosed the recipe in confidence to Mr [Roots] (and to his own two sons), solely so that they could make up a fresh batch and his customers would not be without.
The Bailey sauce was extremely popular. At some stage in late 2005, Mr Williams, Mr Bailey's financial adviser, suggested that it would be a good idea to manufacture the Bailey sauce and sell it in bottles or sachets, rather than simply in conjunction with his jerk chicken. This concept was discussed at a number of meetings, at some of which Mr [Roots] happened to be present.
In early 2006, Mr Bailey telephoned Mr Williams and told him that Mr [Roots] would like to see him. At that meeting it became clear that Mr [Roots] had taken forward the idea of the Bailey sauce being sold in sachets and had produced artwork for packaging the sauce, including designs for the sachets and labelling. He and Mr Williams discussed and amended the artwork and discussed how the business could be set up and financed. It was expressly agreed at this meeting that Mr Bailey, Mr Williams and Mr [Roots] would have equal third shares in the business."
"7. In or about February 2006, Mr Graham asked Mr Bailey to telephone Mr Williams to arrange a meeting. Mr Bailey telephoned Mr Williams, informing him that Mr Graham would like to see him and a meeting was arranged later that month at the Blessed West Indian Take-Away. At the subsequent meeting, attended by all 3 of the foregoing, Mr Graham expressed an interest in helping to establish the Bailey Sauce Business and produced artwork for packaging the Bailey Sauce, including designs for sachets, sachet boxes and labelling (later versions of which used the name "Reggae Reggae Sauce"). Possible amendments to the designs of the packaging and labelling were discussed as
waswere the roles of the three individuals in the business. Over a period of time various names for the Bailey Sauce had been discussed between Mr Bailey and Mr Williams and, subsequently, at the first meeting between the three of them, but they finally agreed that it should be "Reggae Reggae Sauce".
8. Until that time, Mr Bailey and Mr Williams had intended to exploit the Bailey Sauce Business as equal partners. However, it was expressly orally agreed at this meeting that Mr Bailey, Mr Williams and Mr Graham would have equal, one third, shares in the Bailey Sauce Business. The Claimants cannot now set out the exact words used at that meeting but the proposal was first made by Mr Williams. At all times thereafter the parties acted on the basis that they had equal shares in the business: at no time did anybody suggest that this arrangement might be changed.
11. Three different versions (in all material respects the same except for the spiciness) were made up, the first by Mr Bailey at the Blessed West Indian Take-away and the other two by Mr Graham and Mr Williams at Mr Graham's flat in Healey House. The first version was made by Mr Bailey in the presence of Mr Graham, so that Mr Graham would be able to produce the other versions. A mutual friend of theirs, Carlos Hoffman, was also present. Mr Hoffman accompanied Mr Graham but was not involved in the business. Mr Bailey gave Mr Graham the ingredients for the Bailey Sauce in confidence on a piece of paper which the second and third versions were produced."
The succeeding paragraphs of the amended particulars of claim asserted facts to support the claim for damages for breach of the agreement alleged in paragraph 8 and the confidence arising from the facts alleged in paragraphs 3 and 11.
"The ingredients are tomato ketchup, Scotch bonnet peppers, pimento seeds, malt vinegar, Demerara sugar, All purpose seasoning (a blend of herbs and spices), garlic, soy sauce/browning, onions, black pepper, ginger and water.
The order of preparation and quantities of the ingredients for a 25 litre bottle of Bailey Sauce are as follows: 2-3lb of chopped onions, two dozen chopped Scotch bonnet peppers (preferably approximately equal quantities of red, yellow and green), 100 grams of pimento seeds, 5-7 whole chopped garlic, 4oz of chopped ginger, 2lb of Demerara sugar, 560ml Sarson's Malt Vinegar, 2 x 4.5 litres of tomato ketchup, 150 ml of soy sauce/browning, 3-4 tablespoons of black pepper, 100 grams All Purpose seasoning (herbs and spices) and water to dilute to gain the required thickness and strength.
Method: Put all the ingredients (except the vinegar, water and ketchup) in a blender and blend; put all the blended ingredients into a bowl, pour ketchup into the bowl with the blended ingredients, still all the ingredients with the water, add the vinegar, keep stirring all the time, keep tasting until desired taste is reached."
(1) whether to allow the report of Ms Rutter to be included in the evidence on the appeal, and
(2) whether or not to allow the appeal in respect of either or both
(a) breach of contract,
(b) breach of confidence.
Before I can address any of these issues it is necessary to describe the judge's judgment in considerable detail.
"15. For reasons that will become apparent shortly, I have come to the conclusion that I 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. In such circumstances, the conventional approach to determining the issues of fact between the parties would involve primarily testing the relevant contentions of the parties and the evidence of their respective witnesses by reference to such contemporaneous documentation as is available. That is not possible in this case because there are no contemporaneous documents that impact directly on the issues that matter – that is whether an agreement was made between the parties in the terms alleged by the claimants and if there was no such agreement whether the first claimant informed the first defendant of his recipe for jerk sauce in circumstances that carried with them the duty of confidence.
16. It is sometimes possible to reach conclusions on issues of fact on the basis that other events that are admitted or have clearly been proved are more consistent with one party's case than with another's. This general point receives specific support in relation to questions concerning the existence and terms of contracts from the opinion of Lord Hoffmann in Carmichael v. National Power Plc  1 WLR 2042 at 2050. However, before resort is had to this technique it is necessary first to attempt to make findings by reference to such primary evidence as is available. This means that it is necessary that I identify those witnesses of fact who I can safely conclude are honest and truthful witnesses whose evidence is at least likely to be accurate before attempting to make any findings of fact. Since the outcome of this case is likely to depend on the view I have formed concerning the credibility of the various witnesses who have given evidence before me this makes the assessment of the credibility of the various witnesses a very significant element in the determination of this claim.
17. In those circumstances and for those reasons, the first stage of this judgment involves setting out my conclusions concerning the credibility of the claimant and the first defendant as witnesses and my reasons for reaching those conclusions. The next stage is to identify those witnesses other than the parties that I have concluded gave honest and truthful evidence and my reasons for reaching those conclusions. Next, I identify those witnesses other than the parties who I have concluded gave evidence which I cannot accept unless it is admitted, corroborated or is against the interest of the party calling that witness. Once that exercise is complete, it will be possible to decide whether the claimants have succeeded in proving the case they seek to advance on the balance of probabilities."
"One of the major issues between the parties is whether and if so when [Mr Bailey] disclosed what he maintains was his secret recipe to [Levi Roots]. The Defendants' primary case is that there was no secret recipe and no disclosure of any recipe at any of the times alleged by the claimants. The claimants' case as pleaded and in their evidence was that the recipe was disclosed in 2006 after the oral agreement that the claimants assert is alleged to have been completed. Disclosure is of course necessary to found a claim for breach of a duty of confidence but disclosure after the making of the alleged agreement is consistent with an agreement having been reached as the claimants allege. However, the fourth paragraph of the letter before action asserts that the recipe was disclosed to the first defendant by the claimant in 2004. This is fundamental and no explanation was offered by either claimant for this difference. There are others. One particularly striking example concerns the mark "Reggae Reggae". The first claimant asserted in evidence that this was a mark conceived by him but there was no such allegation made in the letter before action. The short point for present purpose is that these inaccuracies undermine the confidence that a court can have in accepting at face value the evidence of either claimant."
"I found that he was consistently evasive in the answers that he gave using as a strategy for gaining time to think a professed lack of understanding of the questions asked of him."
The judge then gave two examples and quoted the relevant passages from the transcript. He concluded in paragraph 22:
"These were examples. Others can be identified in the transcript. Given these examples of the manner in which the first claimant sought to advance his case, I conclude that his evidence cannot safely be accepted other than on the basis I have mentioned already."
"I am entirely satisfied that [Mr Williams] sought to mislead me in a number of identifiable respects."
The judge then gave two examples of conflicting evidence by reference to the transcript or witness statement. He concluded in paragraph 26:
"There are other examples of conduct that support my view of the second claimant as a witness on whose uncorroborated evidence I cannot safely rely. They are identified in paragraphs 45-47 of the defendants' closing submissions. I agree with those points and accept the submissions that are there set out. The points I have highlighted above however are sufficient to lead to the conclusion that I have reached concerning the value that can safely be placed on the second claimant's evidence."
(a) Paul Smith,
(b) Nicholas Plumley,
(c) Dinesh Maharaj,
(d) Dipin Patel,
(e) David Holder,
(f) Neil McGovern,
(g) Nadia Jones,
(h) Rajendram Prabakar,
(i) Teja Picton-Howell,
(j) Anita Flowers,
(k) Sophia Ballantyne,
(l) Anne Mundle,
(m) Linton Mitchell,
(n) Carlos Hoffman
(o) Sadiki Bailey.
"...It is [Levi Roots]'s case that he developed the sauce that ultimately became the [Reggae Reggae Sauce] during the period between April and December 2005. He claims that he tested his sauce by supplying various versions of it to fellow employees and customers of his then employer, the Stockwell branch of Plumbase. This evidence is important not only because it supports the defendants' case as to how what became the Product came to be developed but also because it is submitted that it fatally undermines a critical part of the Claimants' case concerning what they refer to as the demonstration – that is when they say the first claimant showed the first defendant how to manufacture jerk sauce using the first claimant's allegedly secret recipe. The claimants' pleaded case is that this took place in March 2006, after the agreement they allege was reached between the claimants and the first defendant. If what the first defendant alleges – namely that he developed a sauce which became the Product as a result of his activities in the period down to the end of 2005 – is true then it makes it unlikely that there was a demonstration to the effect alleged."
"42. Mr. Dinesh Maharaj…is a chartered certified accountant and registered auditor. He is currently the accountant who acts for [Mr Bailey] and has been for a number of years. He was also Mr Williams's accountant until his business collapsed following the withdrawal of his accreditation by the FSA. Although Mr. Maharaj acknowledged that he was friendly with each of the claimants, I am satisfied that his relationship was in essence at all times a professional one.
43. It is common ground that a meeting took place between Mr. Maharaj, [Mr Williams] and [Levi Roots] sometime after the end of February 2006. [Mr Root]'s case is that the meeting took place sometime in March 2006 – see paragraph 74 of his witness statement. The timing is significant for [Mr Root]'s case because he says this meeting took place after he had entered into the only agreement he says was ever ultimately made namely that between him and [Mr Williams] which he says was made at the end of February 2006. [Levi Roots] maintains that this agreement came to an end on 27 April 2006 in the course of an acrimonious meeting between him and [Mr Williams] at [Mr Root]'s home. This is unlikely to be true if the meeting with Mr. Maharaj took place after 27 April 2006."
"He wanted to sell some sauce to us to use on the fried chicken we sold. I tried the sauce and it tasted very good, and I agreed that we would buy some of the sauce for our shop."
The judge described the relevance of this evidence in paragraph 55 in these terms:
"At this time, on the claimants' case, [Levi Roots] did not know [Mr Bailey]'s allegedly secret recipe. Their case is that this was only communicated to [Levi Roots] at a demonstration that took place at the Café after the agreement they allege was made had been reached. The claimants' case is that this did not occur until February 2006, after [Levi Roots] had left his employment by Plumbase. Thus it seems to me that there are only two alternatives if as I conclude is the case Mr. Prabakar's evidence is truthful and correct – either [Levi Roots] was removing sauce prepared by [Mr Bailey] for use at the café and selling it without the knowledge or consent of [Mr Bailey] or he was seeking to interest Mr. Prabakar in a sauce that he was attempting to create. However of these alternatives only the latter can be right if Mr. Prabakar's evidence is truthful because he says at paragraph 10 of his statement:
"[Levi Roots] was the only person involved in making and selling the sauce. I saw him making the sauce himself in his kitchen when I went to collect sauce from him."
"Mr. Picton–Howell is an experienced solicitor of many years standing. He was for some years the senior partner of the firm that bore his name, where he specialized in transactional work. He is currently employed by Penningtons as a consultant and is as I have already noted the registered holder of 10% of the issue shares of the holding company that owns the second and third defendants of which 5% is owned by him beneficially. He does not fall into the last category of witness that I considered in this judgment only because he has a close professional relationship with [Levi Roots] and because he has an indirect beneficial interest in the second and third defendants. Nonetheless, I am satisfied that Mr. Picton-Howell was an entirely honest and truthful witness who gave his evidence calmly and objectively and answered all questions that were put to him fairly and without equivocation. In any event, much of his evidence is corroborated in material respects by the documentation that he attaches to his statement."
That documentation included emails sent on 18th and 22nd February 2007 from Mr Williams to the third defendant's website and the reply of Mr Picton-Howell in relation to the third defendant. Mr Williams was claiming a one third interest in the business. Mr Picton-Howell replied "We are aware of your past involvement in the company".
"…great care is required when considering the evidence of each of these witnesses. I consider Ms Flowers in a moment. As to the others, although the oral evidence of each has to be read in its entirety, the manner in which each gave their evidence was as important as its content. I was left with the abiding impression that each was close to the first claimant and considered that he had been treated unfairly and immorally by the first defendant. In the case of Mr. Mitchell it was clear that he considered that he had been unfairly treated by the first defendant."
In relation to Ms Flowers he added in paragraph 64:
"Ms Flowers is a witness whose evidence cannot safely be relied upon save where it is agreed or is corroborated or was against the interest of the claimants. A great deal of time was taken up at trial in cross examining Mr. Picton-Howell in relation to his contact with Ms Flowers. There has been extensive consideration of the statements that she made to Mr. Picton-Howell when compared and contrasted with that she gave to the claimant's solicitors. She satisfied me that she has a very deep and abiding sense of grievance against [Levi Roots] who she considers abused her kindness and professional skills. Whether she has grounds for holding these views is not an issue that it is either necessary or desirable that I decide. I say this because in my judgment her value as a witness was fatally undermined by one email that she sent to Mr. Picton-Howell."
It is not necessary to deal with the judge's consideration of that email.
"82. Before reaching a final conclusion I need to consider the evidence of Mr. Sadiki Bailey and Mr. Hoffman. A conclusion that the defendants version of what happened at the demonstration meeting is to be preferred over that of the claimants necessarily involves rejecting the evidence of Mr. Sadiki Bailey and Mr. Hoffman on this issue. Whilst I have considered the oral and written evidence of each, I have concluded that their evidence is to be rejected on this issue. As I have said already that evidence was contradictory in relation to the issue of whether the supposed demonstration took place by prior appointment or not. The evidence given by each is inherently improbable for the reasons I have given. The conclusion I have reached is consistent with the evidence of the witnesses whose evidence is unchallenged or which I have accepted.
83. It was submitted on behalf of the defendants that I ought to regard Mr. Hoffman as a witness who was predisposed to be hostile to [Levi Roots] because of a belief on the part of the witness that [Levi Roots] was indebted to him. There is some material that suggests that might be so…. However, the conclusions I have reached have been arrived at for the reasons that I have set out above. I am satisfied that Mr. Sadiki Bailey was not a witness whose uncorroborated evidence could safely be relied on. In my judgment his loyalty to his father led him to make statements that were not true…. Thus in my judgment his evidence is not evidence which outweighs the points I have considered already."
"In my judgment one of the keys to unlocking what in fact happened lies in the truth or otherwise of the claimants' case, pleaded in Paragraph 11 of the amended particulars of claim, that following the making of the alleged agreement the first claimant demonstrated to the first defendant how to make the Bailey sauce. It is alleged that this demonstration took place "… in the presence of Mr. Graham … a mutual friend … Carlos Hoffman was also present.". The first defendant's version of events is set out in his third witness statement at paragraphs 7-15. In essence he says that he wanted to show the first claimant how he was making his sauce and with that in mind he purchased some ingredients and in the course of doing so met Mr. Hoffman who drove him to the café where the defendant invited the first claimant to watch him make his sauce. The defendant maintains that the first claimant was not interested and after a few minutes he left the café."
"In my judgment…the notion that [Mr Bailey] would be prepared to demonstrate an allegedly secret recipe in the presence of a trade rival is inherently unlikely. Not merely would that defeat or at least run the risk of defeating the secrecy that he says he had maintained for more than 20 years prior to the events with which I am concerned, but it would also involve the risk of damaging or destroying the successful launch of the business which the claimants assert it had been agreed should be run as a joint venture between them only a few days before. It is quite simply inconceivable that [Mr Bailey] would have been prepared to adopt such an approach."
The second reason given in paragraph 71 was that:
"…what the claimants allege occurred would be entirely unnecessary if [Levi Roots] is correct and he had been developing a recipe for jerk sauce that would be suitable for commercial exploitation during 2005. This would only not be so if his attempts to develop a palatable sauce during this period had failed or if what he was distributing was not sauce made by him but sauce that he had removed from the café. I have already referred at length to the evidence of Mr. Holder, Mr. Patel, Mr. Prabakar, Mr. Plumley and Mr. McGovern. This evidence establishes in my judgment very clearly that [Levi Roots] was actively developing a jerk sauce for commercial exploitation during 2005 and what's more that he had arrived at a formulation that was marketable. The only basis on which it could be said that this was not a sufficient basis for rejecting the claimants' case concerning the alleged demonstration is if it could be shown that [Levi Roots] had been removing sauce from the Café. As to this, I accept that he had access and opportunity to adopt such a course. However I do not consider it to be at all likely that [Levi Roots] was adopting this course. The evidence that I have accepted from the witnesses I have mentioned establishes that during this period no particular consistency was being maintained. This was a period in which different formulations were being tried out. Mr. McGovern mentioned specifically a ginger flavour but no one else mentions that. Mr. Patel says specifically that the first defendant was experimenting with different versions of the sauce. The other factor that leads me to reject the notion that all [Levi Roots] was doing was recycling [Mr Bailey]'s sauce taken from the Café is that such an analysis is inconsistent with the evidence that [Levi Roots] was actually cooking sauce at this time. This is something that Mr. Holder mentions specifically as occurring in June or July 2005. It is something that Mr. Prabakar mentions specifically in Paragraph 10 of his witness statement. It is consistent too with what Mr. McGovern says in Paragraph 4 of his witness statement."
"However, before reaching a final conclusion on this point, it is necessary that I consider some evidence I have not so far considered in turn in order to see whether this material outweighs what I have so far considered."
He identified that material as (1) the evidence of Mr Maharaj, (2) two documents generated by Levi Roots, namely his application for finance to Sainsbury's and the application details for Dragons' Den, said to flatly contradict his case and (3) various marketing documents created by Levi Roots and said to be more supportive of the case for the claimants than that for Levi Roots. The judge dealt with categories (2) and (3) before category (1).
"Given the untruths to which I have referred already and that none sit easily with either party's case I am inclined to the view that the document whilst plainly untrue does not assist me to resolve the issues that arise in this case."
"…whilst what is said in the document is undoubtedly untrue (and thus further damages the standing of [Levi Roots] as someone whose uncorroborated evidence can safely be accepted) it cannot be said unequivocally to support the claimants' case."
Similarly in relation to the documents in category (3) the judge concluded in paragraph 79 that they did not assist either side.
"Thus I am satisfied that not merely have the claimants failed to prove the demonstration that they allege as part of their pleaded case but the probability is that if there was any attempted demonstration at all the circumstances are likely to be broadly as described by [Levi Roots] in his third witness statement. I say this because what he says is much more consistent with the evidence and factors I have mentioned above as the reasons for reaching the conclusions I have reached than is the case advanced by the claimants."
"…it is not suggested by the claimants that the supposedly secret recipe was ever supplied to [Levi Roots] other than at the alleged demonstration. It is not suggested that anyone other than [Levi Roots] was going to manufacture the sauce and in particular it is not suggested that [Mr Bailey] was going to carry out the manufacturing process as his contribution to the alleged joint venture. This tends to support the view that there was no agreement because there was no means by which the parties between them arranged for the manufacture of the sauce."
"As I have said already [paragraph 16 quoted in paragraph 8 above] a legitimate aid to deciding whether there was a contract made between the parties as alleged by the claimants is to consider the conduct of the parties after the date when the alleged contract was made for the purpose of testing whether such conduct was consistent with the existence of the agreement alleged. Whilst such material is admissible as I have explained already, in my judgment some care needs to be exercised with such material. As I observed in the course of the argument a feature of this case is that much of the material is arguably capable of providing inferential support for each of the rival contentions. Thus in my judgment when testing the existence of an alleged agreement by reference to subsequent events it is necessary to be careful to focus on those events which unambiguously support or negative the contention to be tested and secondly to view such evidence in the round with all the other material available – which will usually include contemporaneous documentation and such of the evidence of the witnesses of fact as is admitted or accepted by the court."
"98. In the end the claimants' closing submission focused on whether [Mr Bailey] had a secret recipe and on whether sauce prepared in accordance with that recipe had been supplied both at the Café from 2003 and at the Notting Hill carnival from 1992. The general submission that was made was that if I was satisfied on these points then that took the claimants case a long way forward. I would agree that if these facts could be established then in one sense it would make the claimants case a more credible one. However, I do not agree that these issues take the contract case any further than that. On the facts as I have found them, the sauce that was the basis of [Levi Roots]'s business activity in 2006 was the result of his activities during 2005. Logically either the sauce that he was experimenting with and creating in 2005 can only have been either his own entirely original work or the result of him starting with the recipe for the sauce that he and [Mr Bailey] were involved in supplying at the Notting Hill Carnival. If it was the former then there was no secret recipe that belonged to the first claimant that is relevant to these proceedings and if it was the latter then that tends to show either that the recipe was not in truth secret at all or had been disclosed to [Levi Roots] in the course of the preparation for each Notting Hill Carnival they attended together and thus was not secret as between them.
99. In the end the onus was on the claimants to establish the agreement for which they contend. For the reasons I have given they have failed to do so and it follows that the claim must fail to the extent that it is based on the alleged existence of an oral agreement."
"All this leads me to conclude that the alternative claim formulated as a claim for breach of a duty of confidence must also fail."
In the event he dismissed the action.
"69…In doing this [sc. devising the methodology] he fell into error by failing to see the overall probabilities and to build on the known facts. If Tony Bailey did have a special sauce recipe, Levi Roots did not have to invent one of his own. Furthermore, the Judge failed even to consistently apply his own methodology (however flawed) and ignored and rejected evidence from witnesses he himself had identified as reliable, without good reason.
70. The decision in favour of Levi Roots involved the following errors.
71. There was no evidential basis for discrediting the evidence of Tony Bailey. The reasoning contained in paragraphs 19 to 23 of the judgment involve no more than the ordinary discrepancies to be found in witness testimony. They do not bear comparison with the matters detrimental to Levi Roots.
72. The fact that his pleaded case about the demonstration differed from that expressed in the letter before action was simply a matter of mature reflection. It was an inconvenient change in his case. It would have been far better to leave the demonstration in 2004.
73. There was no evidential justification for regarding the First Claimant's witnesses as unworthy of belief.
74. The Judge did not apply his own "methodology" to Levi Roots' testimony. His evidence about the demonstration was not only uncorroborated but it was opposed by three other witnesses.
75. The Judge did not apply his own methodology to Dinesh Maharaj. He was an independent professional witness who gave the only independent contemporary evidence in describing the joint venture to exploit Tony Bailey's sauce.
76. For these reasons, the Judge was plainly wrong to dismiss the action."
"The fresh evidence is a Psychological Report by a Registered Clinical and Forensic Psychologist assessing the intellectual functioning and personality characteristics of the First Claimant (attached). The Psychologist concludes, inter alia, that the First Claimant has a significant intellectual impairment, poor verbal memory and a tendency to change his answers in response to repeated questioning, such that he would be considered to be vulnerable in terms of section 77 of PACE (1983)[sic].
The evidence was not obtained for use at trial as it arises directly from the Trial Judge's findings in relation to the First Claimant's credibility. The Claimants' lawyers had not anticipated that the Judge would form the view that he did in relation to the First Claimant's credibility.
The evidence is such that, if given, it would have an important influence on the result of the application for permission to appeal as it goes directly to one of the Trial Judge's key findings. The evidence is an expert's unbiased opinion; it is credible and is to be believed."
We heard argument on this application from counsel for both claimants and defendants at the commencement of the hearing of the appeal. At the conclusion of that argument we gave our decision to refuse the application for the reasons to be given in our judgments on the appeal in due course. The following are my reasons.
"…to assess Mr Anthony Bailey who was a recently been an unsuccessful claimant in the Chancery Division of the High Court and who now seeks leave to appeal the judgment in the Court of Appeal.
I was asked to assess the intellectual functioning and personality characteristics of Mr Bailey and to consider whether there is any potential vulnerability with regard to his ability to understand the complex questions that were put to him in cross-examination and to provide reliable responses.
In order to address these issues I interviewed Mr Bailey at 5 King's Bench Walk, Temple on 26th January 2012 and I administered a number of psychological tests."
She had been given and had read a chronology, the claimants' skeleton argument for the trial, the transcript of Mr Bailey's oral evidence given on 8th and 9th November 2011 and the judgment of HH Judge Pelling QC.
"Mr Bailey was generally a poor historian, particularly in terms of his ability to recall the chronology of events and to provide detail".
Her summary and conclusions contain the following material passages (reference numbers added):
"(1) Mr Bailey was fully co-operative throughout the assessment and I do not have cause to doubt the reliability of the results. On the basis of this assessment Mr Bailey's overall level of intellectual functioning falls within the intellectual disability range. His Full Scale IQ of 55 is within the bottom 1% of the general population.
(2) On testing Mr Bailey showed some notable areas weakness, in particular his scores on the Verbal Comprehension and Processing Speed indexes of the WAIS-IV UK indicate that he has very poor verbal reasoning abilities and that his ability to process simple material and provide a response without errors within a reasonable time is extremely poor. On both of these indexes his scores were below the bottom one percent for the general population. These limitations are of particular relevance to Mr Bailey's ability to give evidence in court and to withstand cross-examination. I have read the transcripts of Mr Bailey's evidence in court and from them it would appear that he did struggle to cope throughout. He told me that he was unable to understand and respond appropriately to some of the questions that were put to him and he often had to ask the judge to explain what the question was and to help him to understand what information was required of him. He also said that he felt that he had problems with remembering things that he was asked about and that he was very slow to answer at times. There are a number of occasions when this is evident in the transcripts but it seems that Mr Bailey's difficulties are seen as evasiveness or lack of co-operation, rather than the marked cognitive deficits that he experiences.
(3) In terms of Mr Bailey's personality characteristics his scores on the Gudjonsson Suggestibility Scale – Form (GSS2) and the Acquiessence Response Set (ARS) indicate that overall he is not abnormally suggestible or acquiescent. It can be seen from the transcripts that on occasions he was able to refute suggestions that he disagreed with and stand his ground. However, his memory recall scores on the GSS2 were outside normal limits for the general population and his Shift score was at the upper end of normal limits. This would indicate that he has very poor memory for verbal material and that he is inclined to change his responses to questions when he is subjected to negative feedback. Taken with his poor verbal compensation and processing speed, these characteristics could certainly render Mr Bailey particularly vulnerable under cross-examination.
(4) In my opinion, Mr Bailey is a vulnerable individual. On the basis of his scores on the Wechsler Adult Intelligence Scale Fourth UK Edition (WAIS – IV UK) he has a significant intellectual impairment, poor verbal memory and a tendency to change his answers in response to repeated questioning, such that were he to interviewed by the Police, he would be considered to be vulnerable in terms of Section 77 of the Police and Criminal Evidence Act (1983) and provided him with an appropriate adult. It is likely that 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. I would respectfully suggest 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."
"[Mr Bailey] does not consider that an interpreter will be needed in relation to his oral evidence and we share that view. He believes that he can speak clearly and slowly enough in order for the judge to understand his evidence."
"We have spoken to our client and he feels that it is important for him to give his evidence openly and in his own words. We have impressed on him the importance of being understood. He assures us that he can speak slowly and temper his accent to make it understandable to the untrained ear."
"We have been able to take instructions from Mr Bailey throughout the course of our retainer by using simple, clear language and by repeating and rephrasing questions as necessary to ensure that he has understood them. He has also been assisted throughout by his brother who knows him well and who has ensured that he is fully aware of the matters being put to him. Accordingly, we consider that he has been able to understand explanations given to him in order to understand the information given to him and to conduct these proceedings."
(1) The Judge as Juror (1985) by Lord Bingham of Cornhill pp 6-9 in which he sets out the five main tests for determining whether a witness is lying, namely, consistency with what is agreed or clearly established by other evidence, internal consistency, consistency with previous statements of the witness, the general credit of the witness and his demeanour.
(2) Eckersley v Binnie (1988) 18 ConLR1, 77 which emphasises that if all the evidence points one way good reason needs to be shown for rejecting it.
(3) Re H  AC 563, 586 where Lord Nicholls of Birkenhead pointed out that the more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.
(4) Mibanga v Secretary of State of the Home Department  EWCA Civ 367  which points out that a fact-finder must survey all the relevant evidence before reaching his conclusion.
None of these propositions was, or could be, challenged by counsel for the defendants. The issue is whether the judge failed to follow or observe one or more of them.
(1) The rejection of all the evidence of Ballantyne, Mundle and Mitchell for the reason given in paragraph 63 of the judgment (paragraph 18 above). Counsel submitted that the stated reason was not sufficient to justify the wholesale rejection of their evidence.
(2) The rejection of the evidence of Mr Bailey's son, Sadiki, given in paragraph 83 (paragraph 19 above), was not justified for the reasons given. In the case of Sadiki, counsel for the claimants pointed out that in at least one respect, the issue of whether Levi Roots cooked at the Notting Hill Carnival, Sadiki's evidence was contrary to that of his father. He suggested that the reason given by the judge, filial loyalty, was insufficient anyway.
(3) The reasons given by the judge in paragraphs 70 and 71 of his judgment, quoted in paragraph 21 above, for rejecting the evidence given by or on behalf of the claimants as to the course of the demonstration were insufficient and circular. They were insufficient because Mr Hoffman was an old friend who had helped out in Mr Bailey's kitchen on many occasions; he was not a competitor in any proper sense. It was circular because it depended on the conclusion reached by the judge in paragraph 71 of his judgment that Levi Roots had been creating his own sauce in the latter months of 2005. Counsel suggested that the result was that the judge accepted the evidence of Levi Roots, which he had found to be unreliable, in preference to that of Mr Bailey, Sadiki Bailey, Mr Hoffman and Mr Mitchell.
(4) Counsel for the claimants submitted that the judge had failed to recognise that at least two documents were consistent with their case that Mr Bailey was recognised for having devised a jerk sauce, namely, the application to Sainsbury's and Dragons' Den referred to in paragraph 3 above.
(5) There was an issue whether Levi Roots could or did cook which the judge determined in favour of Levi Roots in paragraph 71, quoted in paragraph 21 above. Counsel for the claimants submitted that in so doing the judge accepted the uncorroborated evidence of Levi Roots.
(6) In relation to the credibility of Mr Bailey counsel submitted that the evasiveness perceived by the judge was not symptomatic of dishonesty rather than misunderstanding, that the examples he gave were neither strong nor suggestive of dishonesty and the discrepancy between the letter before action and the particulars of claim was indicative of "the natural process of recall" and did not involve "a purposeful lie".
(7) In the case of Mr Williams counsel for the claimants submitted that an invoice dated 26th April 2006 concerning "Jerk Sauce @ £3.99 per litre" was consistent with his evidence. He contended that the two examples of inconsistent evidence were neither lies in relation to a material fact nor a sufficient foundation to justify rejecting the whole of his evidence.
I will deal with each of those aspects in due course.
Lord Justice Longmore
Lord Justice Davis