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 …
