Saturday, 1 December 2012

Reggae Reggae Litigation: The Court of Appeal decision – guest post by Matt Seys-Llewellyn


In 2001 I decided to change career from being a lawyer in practice to a lecturer. It was a gamble, which thankfully paid off. I love teaching and have the privilege of meeting many wonderful students. Matt Seys-Llewellyn is one former student who always impressed me with his immense intelligence, speed of thought and diligent work ethic but also a maturity and humility which is rare in wannabe Barristers. It became clear that we had a mutual interest in food and drink and it has been my pleasure to remain friends with him.

Matt is something of a 'Legal Ninja', and is one of the first people I turn to with questions of brand new legal developments and current legal practice. His knowledge is truly voluminous, and what he doesn't know, he can find out for you in a matter of minutes. Able to construct winning and compelling arguments, but deliver them with grace, he deserves every success in his future legal career.

So when I heard that the unsuccessful claimant (Tony Bailey) in the “Reggae Reggae Sauce” litigation against Levi Roots (AKA Valentine Graham) had sought to appeal at the Court of Appeal, there was only one person who could write it up with accuracy, humour and flair.

Matt's other brilliant guest posts can be found by clicking on the links below:
Craft Beers: The Revolution Will Not Be Carbonised 
Gluten Free Brownie Recipe 

I will now hand you over to Matt. I hope you enjoy this astute and fascinating analysis.

Bailey v Graham for Snigskitchen

We’re used to spicy things on this blog, but usually confined to the kitchen and not the courtroom! Yes that’s right kids, last week the Court of Appeal refused permission to appeal the claim in Bailey v Graham [2012] EWCA Civ 1469: long time readers will know this as the “Reggae Reggae” sauce litigation which Snigdha covered HERE and then HERE.

The claim turned on two issues – 1) was the recipe that Levi Roots turned into Reggae Reggae sauce based on Mr. Bailey’s secret recipe and 2) did they agree to be joint business partners in marketing the sauce, before Mr. Roots found fame in Dragon’s Den?

Seasonings

Jerk sauce is a chilli based thick marinade that is added to meat to improve its flavour. At the original trial, HHJ Pelling QC summarised its historic origins thus: “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”. The name ‘jerk’ probably derives from the Spanish name for dried meat ‘charqui’.

A few key ingredients tend to remain the same whatever the chef – the Scotch Bonnet pepper for example – but otherwise there is a great variety of recipes and flavourings. These are often handed down through families and Mr Bailey brought one such recipe to the UK in 1984. He ran a stall with Levi Roots at the Notting Hill Carnival in 1993 and set up his own shop in 1998 that made use of his secret recipe. Mr Roots himself was no amateur, and worked in the Stockwell branch of Plumbase producing various Caribbean classics. Mr Bailey’s argument was that, during a period in 2004 when he was unwell, he shared the recipe with his two sons and Mr Roots so that batches of the sauce could be made up while he was away. Two years later Levi Roots went on Dragon’s Den, and beyond those bare facts the decision is based on whether Mr. Bailey and his witnesses were credible enough to prove the elements of his claim rather than whose team of witnesses were more credible. As Snigdha noted the first time round, both sides faced similar issues and I won’t rehash those questions here.

One interesting contention is the claim of Mr. Bailey that he and the second claimant came up with the name ‘Reggae Reggae Sauce’ in a meeting with Mr Roots in February 2006, but ultimately they could not prove that was the case. As far as we know it was Levi Roots who had the brainwave, pitched it successfully to the Dragons and got it into the supermarkets.

One wonders about the merits of a blind taste test, but there is no record of whether the lawyers for either side suggested this…

Digesting the law

It may come as a shock to keen cooks, but recipes are generally not confidential information*. The legal test suggested in De Maudsley v Palumbo [1996] EMLR 460 states that the material relied on must be capable of being realised, namely that it must be specific in terms of quantities and ingredients (and this was not precise enough on e.g. the amount of water to add). Moreover, where the main ingredients would be labelled on a bottle and the preparation involved would be minimal, the recipe could not remain sufficiently secret. The recipe also made use of a number of branded materials - such as Sarson’s Malt Vinegar and a style of ketchup – that reduced the amount of actual cooking and active control needed. Such was the reasoning of the judge at the trial and affirmed by Sir Andrew Morrit in Mr. Bailey’s application to appeal.

One of the many quirks of this case is that it is an appeal over the refusal of a decision to allow an appeal. There is a right to appeal in any civil case where the reasoning of the judge betrays some evident defect or bias, where fresh evidence not reasonably obtainable at trial emerges afterwards or where there has been an error of the law. Reading the decision it quickly becomes obvious that the law was not in doubt, but the live issue quickly becomes whether Mr. Bailey should have had the benefit of special measures. When examined by a psychiatrist after the trial, she reported that Mr Bailey was prone to change his answers under pressure, had a poor verbal memory as well as a comparatively low IQ. Because this issue had not been raised by his lawyers at the time (but certainly could have been) his legal team receive some rather short shrift, and that seems fair. While many people seem to think that cross examination is about tricking your witness into saying what you want**, it is actually designed to test and explore the previous statements of the witness. In civil matters the judge generally will not intervene in the questioning, while criminal trials are different for obvious reasons. That said, I don’t think that any special measures would have changed the outcome of the trial in this instance.

A spicy finish

Should you ever want to make 25 litres of Mr Bailey’s recipe then paragraph [5] of this decision is an interesting refresher course of why Jamaican jerk sauce has such a complex taste. I was once informed that jerk recipes are almost as numerous as grains of sand, and in fact the Levi Roots recipe uses a few ingredients that Mr Bailey did not. For me at least, these additions – spring onions, coriander, cinnamon, nutmeg, basil and thyme – would still change the flavour of something as spicy as a jerk, although the final ratio would be very much a matter of personal taste.

We may never know who was actually telling the truth about the origins of the Reggae Reggae recipe, but I will offer one final thought – never forget your roots. 


Matt works with the Bar team at LexisNexis and once upon a time he learnt the rules of civil procedure from Snigdha. His summary of the case appears in the latest edition of Halsbury’s Laws Weekly Review, and the case itself is here http://www.bailii.org/ew/cases/EWCA/Civ/2012/1469.html

*not that I would ever dare to share any of Snigdha’s secret recipes.
** witnesses never say what you want …

10 comments:

  1. Not that I have great insight into what goes on behind the cameras on Dragon's Den, but like many I do remember the episode that made Levi Roots' name. And the other thing I remember about the programme is how hot the dragons are on whatever intellectual property the entrepreneurs have (or claim to have) in their inventions. This would be such an obvious one, wouldn't it, that whichever dragon it was who put up the money would be expected to check that our fairly thoroughly? Or perhaps I am just being naive.
    However, good analysis, Matt - thanks!

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  2. Thanks Simon!

    The Dragons' researchers must be very hot on this sort of thing, but recipes are a little bit of an odd area of IP and I suspect that the usual trademark and patent searches would have missed this one anyway. Having worked in a brewery, where I did devise my own recipe, I can attest to how difficult it can be to separate out strands of other peoples inspiration from your own...but the claim Mr Bailey was making was that the Reggae Reggae recipe was his through and through and he failed to prove that. I think the point about witness special measures will merit future guidance however.

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  3. Replies
    1. Hello Double Zip Chain Boots,

      This comment didn't appear in my blogger comments screen. So sorry for the delay in getting back to you.

      I'd be delighted if you used this article as a reference. But your tutor may not be!

      Hope your studies are going well!
      Snigdha
      x

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  4. it seems that levi roots is not a chef and he has a lot to hide, bailey should take it further to the supreme court

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    Replies
    1. Dear Damien,

      It is very difficult to take a case to the Supreme Court, let alone expensive!

      Tony Bailey would need leave from the Court of Appeal first. If refused, he would then need to apply to the Supreme Court.

      He cannot apply just because he didn't like the Court of Appeal's decision. He would have to point to an error of law. Or that the decision was so unreasonable, no reasonable court could have made it. These are stringent tests to pass.

      Unless some evidence materialises, Tony Bailey may be better off accepting defeat.

      Thanks for reading, and thanks for taking the time to comment.

      Warm regards,
      Snigdha
      xxx

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    2. Damein please SHUT UP you cant cook either, you only make plenty of noise, YOU ARE A WASTE OF SPACE IN THE KITCHEN. You and Levi could pass for brothers except you are DUM and levi chatty.

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    3. Dear Anonymous,

      I am sorry that you are displeased with Damien. I don't know if he can cook or not.

      I just hope you don't think I am a waste of space in the kitchen!

      very best wishes
      Snigdha

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  5. This sound like we have collided with a few SAUCE eating RODENTS,we will flush them out with RAT sauce PESTICIDES.

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    Replies
    1. Dear Anonymous,

      Whatever your culinary preferences, I would always advise against using pesticides in any kind of cooking.

      Thanks for reading.

      Best wishes
      Snigdha

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