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 …

The Revolution will not be Carbonised: Guest Post on Craft Beers by Matt Seys-Llewellyn

Dear Readers,

I am sorry to have not blogged in quite a while, I have been away on my travels. In fact, I have just come back from China and Hong Kong (HKSAR). I had a wonderful trip. 

I trust you will forgive the lack of posts, but I am delighted to host the following fascinating and informative post from my friend Matt Seys-Llewellyn. I always wanted to cover a wide range of food and drink issues on this blog, but my lack of experience and knowledge often holds me back. I am very grateful to Matt for his providing this incredibly helpful and useful introduction to Craft Beers. He is very well-informed on the subject, but fortunately, always partakes with discretion and moderation!

Over to Matt for his article 'The Revolution Will Not Be Carbonised'. There was no prompting from me for the title. It's a great homage to the late great talent which was Gil Scott-Heron. A king of jazz and soul, he is often neglected as the true founder of rap music. To hear the maestro at work check out:  YouTube: The Revolution Will Not Be Televised

The Revolution will not be Carbonised

What have you been doing while Snigdha has been slaving away, marking papers? Be honest, you’ve been in the pub every evening and enjoying the end of the university term. 

I’m here (with Snig’s permission) to say a few words about ‘real ale’.  Its a provocative term: to some it conjures up images of bearded men out in the country drinking something black as pitch, and to others its actually quite inspiring.  As someone who spent their undergraduate days forced to choose between Heineken and Carling, I fall into the latter camp.   I worked at a “micro” in North Wales before I went to Cambridge, and did everything from bottle washing, to label design, to hauling firkins (barrels to you lot!). 

Herein I will use use the term ‘Craft Beers’ to cover the range of real ales, lagers, Belgian Beers and the like.  Beer with character and beer made with skill. 

Jargon busting 

One of the problems I find have with the some craft beer enthusiasts is that things descend into jargon.  I believe that most things about describing taste are understood by all, but understanding some of the key terms will help you understand what you’re drinking: 

• Bottle-conditioned 

BC beers are vital to the craft beer industry.   When the beer is racked off away from the sediment and yeast, and decanted into bottles, a small amount of sugar is added to each bottle so it can continue the final stages of fermenting under glass.  This adds to the taste, and by-product of that final fermentation creates the fizz.  The alternative involves a completely dead beer and an injection of carbon dioxide at the point of bottling.  

• Cask-conditioned 

Like bottle conditioned, but with added considerations about how quickly the beer will be served, and the percentage of Irish Moss to keep the beer clear. 

• Hops 

You already know what hops are - they give beer most of its flavour and bitterness - but did you know there are at least 50 distinct varieties?  My friends at Charles Faram (the hop factors) are always finding hybrids of them.  The three you will most often come across include Cascade (gives the citrus taste), Syrian Goldings and Fuggles.  All give beer a freshness and a zestiness that thirsty Londoners want in a golden bitter or a lager variation. 

• Lambic fermentation 

Most beers are fermented by adding yeast (and there are usually two types: one for beers and a different one for lagers).  Lambic fermentation is where the beer vats spend time being exposed to the airborne yeasts that live in certain special cellars.  This produces a bitter almost sour brew, often sweetened by fruit syrups.  A Belgian delicacy. 

So where are the gems? 

This is an unashamedly London blog, so with this in mind I suggest my favourite spots in Central London where the beer is worth the trip, and the atmosphere makes it worth staying. 

Craft Beer Company, Leather lane, EC1N 7TR 

The boys at CBC have really done wonders in little more than a year.  I love the variety of foreign beers in bottles, and English ales and porters on tap.  They also do a mean pork pie.  Anyone who can recommend a Norwegian beer, while pouring you a pint of Dark Star, is on their way to greatness. 

Tube: Chancery Lane and 7 minutes walk 

The Jerusalem Tavern, Britton Street, Clerkenwell, EC1M 5UQ 

I love this place: its wholly owned by St Peter’s brewery in Suffolk and mostly stocks their own beer, which is thoroughly excellent.   Inside the decor is very country pub, but cool and quiet.  Attracts a youngish crowd in the evening, but happily it seems to be student free. 

Tube: Farringdon and 4 minutes walk, Old Street and 15 minutes walk, Chancery Lane and 10 Minutes walk

The Cross Keys, Lawrence Street, Chelsea, SW3 5NB  

I found this pub after the cryptic hint “it’s near the house of the guy who wrote ‘Sartor Resartus’” (Thomas Carlyle), which tells you something about the people I drink with.  Do look on the map first as its hidden in the backstreets near Chelsea Embankment, but the beer (and food) is worth the trek.  You also get a nice view of the river if you get there early enough. 

Tube: Gloucester Road or South Kensington and 20 minutes walk.  Or take a cab, “yah”. 

The Rake, Borough Market, SE1 9AG 

Be honest, when I said ‘Borough’ you thought about the Market Porter didn’t you?  Well this is – dare I say it – just as good?  You might just get to sit down and the constantly changing selection of beer will impress anyone you take there.  Try to avoid the commuter rush 5-7 and you’re onto a winner. 

Tube: London Bridge and five minutes walk 

This of course ignores the very good Fullers and Young’s that are dotted around, and the pop-ups that will sell you your bottles of Meantime, Duvel and the like.  You know the ones. 

So remember, life is too short to drink poor beer, and CHEERS!

Gluten Free Chocolate Brownies: A guest post by Matt Seys-Llewellyn

To my immense surprise Snigdha has kindly offered me a guest slot on her blog to cover a bit of baking because she claims it “isn’t really her thing”.  She’s not alone; sadly most people give up because of a few bad experiences with burnt bits or a dry loaf, which is a shame because cooking is all about having the confidence to experiment (and be willing to eat the failures where possible).

In the hope of encouraging this experimentation I’ve decided to reveal the recipe for my famous chocolate brownies.  Partly inspired by an Austrian friend’s incomparable chocolate cake (thanks Kathy!), and adjusted to be gluten free, they are gooey, satisfying and almost impossible to mess up.  The cooking time required is mercifully short and it is good practice for anything more complicated.   The most important thing is getting the oven temperature right before you put the baking tray in, so turn it on before you start doing anything else!!!

Ingredients (for 12-14 brownies)

150g unsalted butter chopped and cubed

270g chopped chocolate (220 dark, 50g milk)

3 large eggs*

75g rice flour

125g dark muscovado sugar

150g of chopped glacé cherries (quartered. Less likely to stick to the baking tray)

1tsp vanilla essence

Tsp of cinnamon

Pinch of sea salt

*hypothetically you could do this in a vegan way with guar gum, but the magic in this recipe really comes from how the eggs bind the flour together.

Instructions

1)      Preheat the oven to 180 degrees C/ gas mark 4

2)      Line the base of a baking tray of about 20cm by 20cm by greasing the sides and base with some of the leftover butter to stop it sticking to the sides.

3)      Melt the chocolate and the butter together in a bain marie (a pan of simmering water with the bowl full of chocolate/butter sitting in the middle of it).  Melt the chocolate SLOWLY and stir frequently.  You can also cheat by doing it in a single bowl in the microwave if you have asbestos fingers and do it for short bursts at a time.  In both cases stir together gently, adding no more than 50 grams at a time, and once everything has melted together turn off the heat.   I find it is better to do most of the chocolate before you start adding the butter.

4)      Beat the eggs, sugar and vanilla extract together in a separate bowl.

5)      Stir in the flour, cinnamon and that dash of salt to the eggs and then, when the flour lumps have been beaten out (five minutes work) you can add most of the chopped cherries.   Then fold in the chocolate mixture until it is all mixed together to your satisfaction.  Use oven gloves when pouring this in because, even with time to cool, the chocolate will often resemble molten lava for heat and texture.

6)      Pour it all into the pre-prepared tin and give it a tap to ensure that the liquid is level.  Sprinkle on the remaining cherries, if this is your thing, then place in oven.

7)      Aim to cook for about 15-20 minutes only.  Don’t worry if the middle is squidgy as it will continue to cook in the tin once you remove it from the oven. Remember: the aim is not to overcook the mixture, or else it becomes dry rather than gooey.  You can test for optimal gooeyness by gently pressing the middle of the mixture with the back of a spoon – it should be soft without being a liquid or paste consistency.

8)      Leave to cool and then cut into the number of pieces of your choice.  I find I get 12 very comfortably with my sized baking tray – they can be a little crumbly so great big slices are not the aim of the game (whatever the temptation).

9)      They should keep for up to four days in an airtight tin...if they haven’t been scoffed in one!

You can tweak the recipe to your own mix of chocolate and flavours – for example with candied ginger in place of the cherries if you replace the cinnamon with a tsp of ground ginger to help it along.

 The perfect autumnal treat: happy baking! 

 Matt

Snigdha says:

My thanks to Matt for his wonderful guest post! I am really grateful to him for the time and effort he has put into the brownie recipe, complete with photos and step-by-step instructions.

I am very lucky to have lots of foodie friends to bounce ideas from, and Matt is no exception with his excellent knowledge of French food and baking.

The brownie recipe is one I will try in the kitchen. Heaven knows I've tried making scones, muffins, bread and cakes, but all ended up just a little dodgy.  Perhaps the more rough-and-ready technique for making brownie mix will work better for me. And I'll remember to preheat the oven too!

Thanks again, Matt!