Anthony Bailey and Another (Appellants/Claimants) v Keith Valentine Graham (Aka "Levi Roots") and Others (Respondents/Defendants)

Hearing dates : 31 October—1 November 2012

The Chancellor:

Introduction

Both the first claimant ("Mr Bailey") and the first defendant, best known as Levi Roots ("Levi Roots"), are Jamaican by birth. They have lived here since, respectively, 1986 and 1968. They met in 1991 and became close friends. From 1993 they together operated a stall at the Notting Hill Carnival taking place annually at the end of August from which they sold jerk chicken. This case concerns the jerk sauce with which jerk chicken (or other meat) is prepared. Its derivation and nature was described in the expert's report of a food consultant in these terms:

"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 June 2006 Levi Roots started preparations for the launch of a jerk sauce entitled Reggae Reggae Sauce at the Notting Hill Carnival in August that year. In that month he applied to Sainsbury's for financial and other support. Later in the year he applied, successfully, to go on the TV programme "Dragons' Den" on which he obtained financial support of £50,000. As required by the investors, Levi Roots incorporated the third defendant in January 2007. The programme was broadcast on 7th February 2007. On 17th February 2007 the recipe for making Reggae Reggae Sauce was disclosed by Levi Roots to G Costa & Co Ltd. By a licence made on 1st August 2007 the third defendant granted to G Costa & Co Ltd the exclusive right to make and distribute Reggae Reggae Sauce made in accordance with that recipe. The Reggae Reggae Sauce and the associated brand became and are commercially successful.

In February 2010 Levi Roots and solicitors acting for the second and third defendants received from solicitors acting for Mr Bailey and Mr Williams a letter before claim entitled "Re: Reggae Reggae Sauce". The material part is in the following terms:

"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."

The claim form in this action was issued by the claimants on 20th April 2010 seeking damages for breach of contract and breach of confidence. In the amended particulars of claim Mr Bailey asserted that in 1984 he had devised in Jamaica a sauce, which he defined as "Bailey Sauce", used in his jerk chicken dishes. He alleged in paragraph 3 that, save as admitted in paragraphs 5 and 11, he deliberately kept the recipe for that sauce secret.Paragraph 5 dealt with a disclosure in 2004 to his chef when he, Mr Bailey, was hospitalised in Jamaica.Paragraphs 7, 8 and 11 are in the following terms:

"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 was were 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.

[9..

10..]

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 defendants sought further information in relation to the Bailey Sauce referred to in paragraph 1 of the particulars of claim and elsewhere. The response was as follows:

"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...