Bailey & Anor v Graham & Ors [2011] EWHC 3098 (Ch)

Case No HC10C1327[2011] EWHC 3098 (Ch)IN THE HIGH COURT OF JUSTICECHANCERY DIVISION(INTELLECTUAL PROPERTY)Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 25 /11/2011
Before
HIS HONOUR JUDGE PELLING QCSITTING AS A JUDGE OF THE HIGH COURT
Between
ANTHONY BAILEYClaimantsSYLVESTER WILLIAMSClaimantKEITH VALENTINE GRAHAMDefendantsLEVI ROOTS’ REGGAE REGGAE FOODS LIMITEDDefendantLEVI ROOTS’ REGGAE REGGAE SAUCE LIMITEDDefendant
Mr Ian Glen QC and Mr George Hamer (instructed by Simons Muirhead & Burton) for ClaimantsMr Mark Vanhegan QC and Mr Chris Aikens (instructed by EMW LLP) for DefendantsHearing Hearing dates: 8-10, 14-17, 21 and 22 November 2011
JudgmentHH Judge Pelling QC:Introduction
[1]This is the trial of the liability issues that arise in this claim by the claimants for remedies sought by reference to an alleged breach of contract on the part of the first defendant, alternatively by the first claimant for similar remedies by reference to an alleged breach of a duty of confidence that he alleges was owed to him by the first defendant.[2]This dispute is concerned with a product known as “Reggae Reggae Jerk/BBQ Sauce” (“the Product”). The Product is one that owes its origins to Jamaican street cuisine and can be used either as a marinade for meats or poultry prior to cooking, usually using a barbecue method, or as a condiment. The claimants' case is that the Product is derived directly from the first claimant’s own unique and secret recipe for jerk sauce that they maintain was supplied by the first claimant to the first defendant only following an agreement between each of the claimants and the first defendant that they would together exploit the commercial opportunities represented by the first claimant’s sauce and would divide the profit to be derived from that exploitation on an equal basis. The claimants' only pleaded case is that following the making of this alleged agreement the first claimant showed the first defendant how his sauce was prepared and what ingredients are used – see Paragraph 11 of the amended Particulars of Claim [1/5] and Response 46 to the Part 18 Request for Further Information in relation to the Particulars of Claim [1/25]. It is alleged that thereafter the first defendant sought to exploit the first claimant's recipe for his own benefit in breach of the alleged agreement. If and to the extent there was no agreement as alleged, then the first claimant alleges that the information concerning the first claimant sauce was imparted to the first defendant in circumstances that attracted the duty of confidence and that the alleged exploitation by the first defendant of the first claimant’s recipe thereafter constituted a breach of that duty.[3]It is trite that the legal onus of proving the case they advance rests on the claimants who must prove their case on the balance of probabilities if their claim is to succeed.

The Background and the Parties’ Respective Cases

[4]The first claimant is, and has been since 1997, the proprietor of a takeaway café called “The Blessed West Indian Takeaway” which operates from premises at 203 Coldharbour Lane, Brixton (“the café”). The property from which the café operates is small and consists of three sections arranged linearly –the front part where customers order and receive their food, the kitchen area that is behind it and a small rest area that is behind the kitchen. The defendants prepared a sketch plan of the café which the claimant agreed was broadly correct. A copy of that plan appears at [9/4] in the trial bundle.[5]The first claimant moved to London from Jamaica in November 1986. He claims that prior to that, in 1984, he devised his own jerk sauce which was in essence the same sauce that he used thereafter in his own commercial cooking activities initially in Jamaica and from 1988 in England and Wales. He maintains that he recorded his recipe in writing in Jamaica and that he thereafter memorized it before destroying the paper record of the recipe and moving to London. The first claimant maintains that such was the quality of his sauce that between 1984 and 1986 he won prizes in Jamaica for the quality of his jerk chicken prepared using his sauce as a marinade. There is no evidence, other than his own that this is so. He told me and I accept that he sold food that he prepared from stalls he operated at the Notting Hill Carnival from 1988. He maintains that one of the food items sold by him in this way was jerk chicken prepared using sauce prepared in accordance with his recipe.[6]The second claimant carried on business as a mortgage broker until 9 May 2008 when his authorisation to conduct regulated business was removed by the Financial Services Authority ("FSA"). Although he claims to have continued in the financial services market in an unregulated capacity, his business activity after the withdrawal of his authority by the FSA appears to have been limited. This at least was the effect of the evidence of Mr. Maharaj, his accountant. The second claimant first met the first claimant in 1999 and they have been friends ever since.[7]The first defendant arrived in England and Wales in 1968. He claims that between 1976 and 1984 he worked on stalls at the Notting Hill Carnival cooking jerk chicken using jerk sauce that he prepared and that in 1984 he started selling Jamaican food from a club called “Papine”. The first defendant accepts that activity came to an end with his imprisonment in July 1986. Between 1986 and 1990, the first defendant served just over four years in prison following a trial in the Crown Court where he had been convicted both of being in unlawful possession of a firearm and of conspiracy to supply Class A drugs. Following his release from prison, the first defendant established himself as a Reggae songwriter and singer with both groups and as a solo artist.[8]The first defendant and first claimant first met in 1991 and became close friends. The first claimant harboured an ambition to become a Reggae singer and it may have been that ambition which led in part to the development of their friendship. For reasons that I turn to hereafter, I have concluded that I ought not to accept either the evidence of the first claimant or that of the first defendant save where it is against the interest of the person concerned or is admitted or is corroborated. However I am satisfied that the first defendant did establish himself as a Reggae music composer and singer after his release from prison although in my view that career was in regression and perhaps had come to an end in real terms by 2005. The first claimant had ambitions to become a Reggae singer. He received tangible support from the first defendant after they became friendly. However the first claimant’s career as a Reggae singer and composer never really established itself notwithstanding the clear ambitions of the first claimant.[9]It is common ground that from 1993 the first claimant and the first defendant operated a stall together annually at the Notting Hill Carnival from which they sold food including jerk chicken prepared using jerk sauce that the first claimant maintains was made by him in accordance with his secret recipe. The first defendant maintains that he and the first claimant prepared the sauce together before the carnival and that there was nothing secret about it at all. The first defendant’s case is that he had made and supplied jerk sauce on his own account at a Festival in Belgium on 8 August 1998 and at a festival at Trent Park on 24 August 2004. He maintains that he started experimenting with sauce recipes from at least August 2005 and that he invented the title “Reggae Reggae sauce” in late 2005 or early 2006 which he then applied to the sauce he had perfected during this period. He says the mark was one that he invented because it allowed him to exploit what he perceived to be a synergy between his musical and culinary activities. This is disputed by the first claimant.[10]The third defendant is a company that controls the rights to the Product and licenses its manufacture and distribution. Both the second and third defendants are now owned by a holding company. The first defendant currently owns 65% of the issued share capital in the holding company. 25% of the issued share capital in the holding company is owned by an investment company controlled by Mr. Peter Jones. Mr. Jones is one of the investors who appear on the well-known television programme entitled “Dragon’s Den”. The first defendant appeared on the edition of the programme broadcast on 7th February 2007 soliciting investment to enable him to exploit the Product further. Mr. Jones invested £25,000 in return for a 20% stake in what became the third defendant, as did another Dragon. The other Dragon subsequently sold back his interest in the third defendant at a substantial profit. Mr. Picton–Howell, the defendants’ solicitor, is the registered holder of the remaining 10% of the issued share capital in the holding company. He told me that he holds 5% as a nominee and the remaining 5% is owned by him beneficially. The third defendant is only important because the primary remedy sought by the claimants is the transfer of part of the equity in that company to them in order to give effect to what they allege to be the agreement reached between the claimants on the one hand and the first defendant on the other. The third defendant’s value lies in a licence agreement it has entered into with G Costa & Co. Ltd., under which that company is entitled to manufacture the Product and exploit the “Reggae Reggae” and “Levi Roots” trademarks. “Levi Roots” is the name by which the first defendant is known as a Reggae music performer and composer. It would appear that the business of the third defendant is successful. I was told that the third defendant’s turnover for the year ending 30th August 2010 was £595,251. I was not told what profit had been made but given that its main source of revenue is derived from the licence to which I have referred, it is likely to be substantial.[11]The second defendant is a company that exploits the “Reggae Reggae” mark in relation to products and activities other than the manufacture and distribution of the Product.[12]The issues between the active parties (that is the claimants and first defendant) are simple. The claimants allege that in late January or early February 2006 an oral agreement was reached between them whereby it was agreed that they would together exploit the first claimant’s jerk sauce recipe and share the profits of so doing equally between them. Although it is not pleaded in terms that the effect of this agreement was to create a joint venture partnership, Mr. Glen QC accepted that the claimants were alleging that a joint venture partnership at will had come into existence between the claimants and first defendant as a result of the agreement. The claimants allege that each was going to contribute to the project in different ways. The first claimant was going to supply the recipe, the first defendant was going to carry out the marketing and the second claimant was going to arrange funding and assist with the marketing. The claimants allege that it was pursuant to this alleged agreement that the first claimant supplied a list of ingredients to the first defendant and demonstrated to the first defendant how the sauce was prepared. It is common ground that thereafter the first claimant did nothing to contribute to the process.[13]The first defendant maintains that the claimants' case is nothing other than a cynical and dishonest attempt to take advantage of his ingenuity and hard work made for the first time only after the Product had become a commercial success and supported evidentially by those who for a variety of reasons are maliciously disposed towards him. He says that the first claimant’s sauce was not a secret but was a marinade that they had made together using common ingredients for a number of years for use by them in the preparation of jerk food that they sold together from a stall at the Notting Hill Carnival. He says that he conceived the idea of marketing a jerk sauce that was linked with his musical activities and that he experimented with various ingredients during the second half of 2005 with a view to arriving at a formula that was likely to have most commercial appeal. He says that he tested his various formulations on colleagues at his place of work (the Stockwell branch of Plumbase) and on at least one customer who he got to know well. He says that he resigned his employment by Plumbase in January 2006 in order to devote himself full time to the exploitation of his sauce idea. He maintains that he only approached the first claimant because he wanted to involve his friend in an activity that he thought stood some prospect of commercial success and (he says) because he wanted to use the cafe's kitchen to prepare the sauce. He maintains that the first claimant told him repeatedly that he was not interested but recommended that he meet with the second claimant because the second claimant might be able to assist financially. The first defendant contends that this led to a meeting between the first defendant and the second claimant on or about the 6th February 2006 at which it was agreed that if the second claimant could procure an investment of £5,000 they would proceed on a one third split because he remained of the view that the first claimant would wish to be involved. On this analysis there would appear to have been no agreement at all or at best an agreement conditional on the introduction by the second claimant of £5,000.

The Trial

[14]The trial took place between the 8th-10th;14th-17th and 21st-22nd November 2011. I heard oral evidence in support of the claimant’s case from: 14.1. The claimants; 14.2. Mr. Carlos Hoffman, a chef who specializes in West Indian cuisine; 14.3. Mr. Sadiki Bailey, the first claimant’s son; 14.4. Ms Annalisa Mundle, an employee at the first claimant’s café from 1999 to 2003; 14.5. Ms Sophia Ballantyne; 14.6. Mr. Linton Mitchell; 14.7. Mr. Maharaj, a chartered certified accountant; and 14.8. Ms Anita Flowers. I heard oral evidence in support of the defendants' case from: 14.9. The first defendant; 14.10. Mr. Baxendell and Ms Sarah Williams, both employees of G Costa &: Ltd; 14.11. Mr. Dipin Patel; 14.12. Mr. Holder; 14.13. Mr. Picton-Howell; 14.14. Ms Nadia Jones; 14.15. Mr. Jason Fagan; 14.16. Mr. Prabakar; and 14.17. Mr. Vincent Craig.

The Methodology of this Judgment

[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 [1999] 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.

The credibility of the parties as witnesses

[18]The First Claimant It was submitted on behalf of the Defendants that the first claimant was not a witness whose evidence I could properly accept save to the extent that it was admitted or was corroborated or was against his interest. I accept that submission. My reasons for reaching that conclusion are as follows. First his case was contradictory. At the forefront of the defendants’ submissions as to why I should regard the first claimants as an unreliable and incredible witness was the letter before action [8/1] sent to the Defendants by the claimants’ current solicitors. The significance of a letter before action is that it forms the basis or should form the basis for an attempt to resolve differences using the Pre-Action Protocols. It is meant to set out accurately and comprehensively the case being advanced so as to enable the proposed defendant to respond in detail to what is being alleged as a pre-cursor to an attempt to resolve the dispute either by negotiation or by alternative dispute resolution. Thus, whilst such a letter is not supported by a statement of truth, it is nonetheless a document which all concerned can expect to fully and accurately set out the case of the party on whose behalf it is sent. Where such letters are written by solicitors and it is suggested that there is a material inconsistency a court can legitimately expect a solicitor who is satisfied that a mistake has been made to say so either in correspondence or a witness statement. The letter in this case was written by a solicitor. It has not been suggested by the solicitor concerned that the letter erroneously failed to set out the claimants’ case in accordance with the claimants’ instructions. That is all the more significant here because(a) it has been obvious to all concerned since at least the completion of the disclosure exercise that the credibility of the parties and their witnesses would be key issues and(b) a witness statement had been filed by the solicitor concerned going to other issues, but a decision was taken not to call the solicitor concerned. I was told of that decision after the cross examination of the claimants had been completed. I infer therefore that the decision was taken in the knowledge that the first and second claimants’ credibility had been attacked by reference to material differences between their case as set out in the letter before action and their pleaded case and evidence.[19]It was argued that aside from the points so far considered the defendants and their advisors were entitled to conclude that care had been taken by the claimants and their advisers to state accurately the case the claimants wished to advance in the letter before action because at the same time as the letter was sent, notice was given to the defendants that the claimants’ solicitors were acting on a conditional fee basis and with the benefit of ATE insurance. Whilst I can see the forensic attraction of such a submission, in my judgment considering it further involves an unacceptable degree of speculation which is unnecessary having regard to the points so far considered. I leave these factors to one side.[20]Both claimants were content to accept in the course of their cross examination that the letter before action had been prepared on the basis of information supplied by them. They were also prepared to accept in cross examination that they were aware of the importance of the letter. Those answers (which were against their interests) corroborated negatively by the absence of any evidence from their solicitor that suggested the letter departed materially from the instructions he had been given at the time leads me to conclude that the letter was prepared on the basis of instructions given by the claimants and accurately reflected the instructions that had been given by the claimants at that time. Thus I accept the submission made on behalf of the defendants that there were material differences between the case as set out in the letter before action and the case as advanced by the claimants in their pleadings and in their evidence for which was no coherent or credible explanation offered.[21]One of the major issues between the parties is whether and if so when the first claimant disclosed what he maintains was his secret recipe to the first defendant. 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.[22]The points I have so far made apply equally to both claimants. Turning now to the first 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. An example of the manner in which the first claimant sought to evade answering questions, the answers to which he considered to be potentially damaging concerned packaging. I can do no better than set out the relevant exchanges: “Q. What I'm asking you is, did Levi first come up with the 7 idea of selling jerk sauce in sachets? 8 A. No. 9 Q. Now, let's consider the Reggae Reggae name. Given 10 there's a lot whispering on the other side, I want to 11 make clear, it was Levi's idea to come up -- 12 JUDGE PELLING: Just pause, Mr. Vanhegan. Yes? 13 MR. GLEN: It's just that we were wondering whether he 14 understood the word "evasive". 15 MR. VANHEGAN: He may not have done. …. 24 JUDGE PELLING: Now, what Mr. Vanhegan is going to say at the 25 end of the trial, when the barristers make their closing 1 submissions, their final speeches, is that you 2 deliberately avoided answering relevant questions 3 because the answers would not support your case. You 4 understand what I'm saying? 5 A. Yeah. 6 …. 1 JUDGE PELLING: So can I suggest that for the rest of your 2 evidence you listen very carefully to what Mr. Vanhegan 3 says and attempt to answer the question directly. All 4 right? 5 A. Yes, sir. 6 JUDGE PELLING: Very well, thank you. 7 MR. VANHEGAN: I'll just ask you again about the sachets. 8 Between yourself, Sylvester and Levi, Levi was the first 9 person to suggest selling jerk sauce in sachets, wasn't 10 he? 11 A. No. 12 Q. Who was it? 13 A. Levi came up with a -- Levi came up with a drawing of 14 the sachet, yeah? He came up with a drawing of a sachet 15 and showed that to Sylvester and myself, yeah? And then 16 we asked is that a good idea. 17 Q. So Levi was the first one of you to come up with the 18 idea of using sachets for the sauce; is that correct? 19 A. Yes.” 23. And if you could take bundle D5, still, if you've got 24. 19 it. Turn to tab 26, please. This is a photo which 25. 20 I think you provided from the carnival in 1994. Do you 26. 21 recognise -- 27. 22 A. This is for 94? 28. 23 Q. Yes, 1994. 29. 24 A. This is before 94. This picture is before 94. 30. 25 Q. Do you want to explain why it's before 1994? 31. Page 126 32. 1 A. I remember this is before 94. This is on Needham Road.33. 2 You can go and check Westminster. They will give you34. 3 a licence for this.35. 4 Q. Do we have a copy of the originals in court, please?36. 5 This is a photograph which you provided on disclosure to37. 6 my clients. Perhaps I can pass it to my Lord first, and38. 7 he can pass it down to you. (Handed).39. 8 My Lord, if you have a look at the back of that40. 9 photograph, this is a document which your clients --41. 10 you, your assist solicitors listed in a list of42. 11 documents for this litigation.43. 12 JUDGE PELLING: Can you pass that to Mr. Bailey? Thank you.44. 13 (Handed).45. 14 MR. VANHEGAN: Mr. Bailey, could you read the date of the46. 15 photograph which is on the back of that, please.47. 16 A. It says September '94. 48. 17 Q. So you told your solicitors it was September '94, you 49. 18 listed it as September '94. The photograph says 50. 19 September '94, and your evidence is now categorically 51. 20 that this is not 1994 carnival; is that correct? 52. 21 (Pause). 53. 22 A. Well, the date is there, the date is there, 94, but it 54. 23 is during that period anyway. During that period. 55. ? 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.[23]The Second Claimant I start by making clear that I leave out of account in assessing the second claimant’s credibility the removal by the FSA of his authority to conduct authorized investment business. I do not know enough about the circumstances to enable me to decide whether that factor could be relevant to an assessment of the second defendant’s credibility as a witness.[24]I am entirely satisfied that the second claimant sought to mislead me in a number of identifiable respects. The following are examples. An article was published in the Mail on Sunday concerning the Product and its origins. The second claimant was asked whether he had read the article concerned. The relevant exchanges were as follows:
“2 Q. Had you read the Daily Mail or Sunday Mail article at 3 the end of 2009 or the beginning of 2010 about the 4 Bailey Sauce? 5 A. No. 6 Q. Can I see if I can trigger any memories on that. Can 7 you take bundle 4, be given bundle 4, turn to tab 1, 8 page 391. Do you recall reading this newspaper article 9 at around the end of 2009, beginning of 2010? 10 A. No, sir, I don't read articles online. This is from the 11 Mail Online. 12 Q. No, this print-out is from the Mail Online, but it was 13 actually in the newspaper itself. 14 A. No, I don't get the Daily Mail. 15 Q. You don't recall Toni Bailey discussing the fact that he 16 appeared in the Sunday newspaper at this time? 17 A. No. 18 Q. Not at all? 19 A. No.”
This answer is to be contrasted with paragraph 35 of his witness statement where the second claimant says:
“…Tony called me in late December 2009 to say that an article had appeared in the mail on Sunday about [the first defendant] [the first claimant] and [the Product]. … I met [the first defendant] at his café and read the article in a copy of the paper that he had.”
These two accounts are flatly contradictory. Both cannot be true. It is not suggested that one is innocently erroneous. It supports the submission made on behalf of the Defendants that the second claimant has sought to mislead me.[25]The first defendant had a relationship with Ms Timmii Twumasi. Ms Twumasi did not give evidence before me. However the material that is available to me suggests that the relationship came to an end in circumstances that can only be described as extremely acrimonious. It was suggested that the second claimant was being encouraged to embark on these proceedings by Ms Twusami. Given that(a) Ms Twusami did not give evidence before me, and(b) whether she has (i) encouraged one or both claimants to bring this claim and (ii) if she has whether she did so maliciously for the purpose of harming the first defendant, are not issues that are relevant to any issue I have to decide, it is not necessary or desirable for me to decide what if any role she played in the commencement of these proceedings. However, the second claimant was asked a number of questions about his connections with Ms Twusami which in my judgment demonstrated very clearly that his was not evidence that I could safely rely upon other than when it is corroborated, is admitted or is against his interest. On day 3 of the trial he told me: Q. How long have you known Ms Twumasi? 15 A. I've known her since January 2010. 16 Q. January 2010? 17 A. Yes, sir. 18 Q. You knew that she was Levi Roots' ex-girlfriend, didn't 19 you? 20 A. I didn't know that, sir, no. 21 Q. You never knew that? 22 A. No. 23 Q. Did you share the same business address? 24 A. Sorry? 25 Q. Do you share the same business address? Page 168 1 A. No, sir. 2 Q. You don't? 3 A. No. However, on day 4 of the trial the second claimant changed his evidence but did so only when confronted with documents that demonstrated his earlier evidence had been untrue:
“1 "Answer: No." 2 That was the discussion we had about whether or not 3 you shared the same business address. 4 A. That's correct, yes. 5 Q. Could you please then go to bundle 4, tab 1 again, 6 please. … 12 MR. VANHEGAN: Volume 4 again, sorry, tab 1, page 389. This 13 is a non-disclosure agreement that Miss Twumasi gave 14 Mr. Fagan at the meeting on 24 May, which I understand 15 from your evidence you also attended with Miss Twumasi. 16 Do you recall Mr. Fagan being given this 17 non-disclosure agreement by Miss Twumasi? 18 A. Yes, I do. 19 Q. You do? 20 A. Yes. 21 Q. Could you see at the second line between, then it has an 22 entry "Miss T Twumasi, the disclosing party"; do you see 23 that? 24 A. Just a minute. That's right, yes. 25 Q. Do you see that it says: "... a corporation organised existing under the laws 2 of English, Scotland and Wales ...(Reading to the 3 words)... head office located at Suite M, 135-143 4 Stockwell Road, Brixton, London, SW9 9TN." 5 A. Correct. 6 Q. That's your business address, is it not, Mr. Williams? 7 A. That's my business address, yes, it is. 8 Q. Were you deliberately, then, trying to mislead the court 9 on Thursday about her not sharing your business address? 10 A. No, sir. 11 Q. Can you explain why she refers to your business address 12 as her business address, then? 13 A. As I explained to you on Thursday, sir, Miss Twumasi 14 came to me for technical advice based on a website she 15 was -- she had given Mr. Fagan commission to make, to 16 design. She is looking at me as a business advisor and 17 she came to me for advice. 18 I did afford her to use my business address as 19 her -- as the address for the document, yes, I did. 20 Q. So she did share your business address, Mr. Williams? 21 A. No, sir, not necessarily. 22 Q. Either she did or she didn't, Mr. Williams. 23 A. Affording someone to use your business address doesn't 24 necessarily mean that she shared the address.”
This is plainly contradictory evidence given by the second claimant for which there is and can be no explanation that is consistent with the second claimant being a reliable witness.[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[27]The First Defendant The first defendant is a witness whose uncorroborated evidence I cannot safely rely upon. My reasons for reaching these conclusions are set out below. Where I have sought to illustrate what I consider to be clear absences of candour, I have done so by way of example. The list is not a complete one and is not intended to be so. I have adopted this course (as I have done also when considering the claimants) because to adopt any other course would unnecessarily lengthen this judgment.[28]Before turning to these examples, it is necessary that I mention first the first defendant’s criminal convictions. I do so at this stage because a submission made on behalf of the claimants was that they alone justified the conclusion that the first defendant was not to be regarded as a credible witness.[29]The first defendant was convicted of burglary while a juvenile and sentenced to a short period of juvenile detention following a guilty plea. The first defendant is now 52 years old having been born on 24 August 1958. I do not consider it right to reach conclusions concerning the first defendant’s credibility by reference to that conviction, even though the offence was one of dishonesty. The offence took place too long ago for it to be material to an assessment of current credibility as a witness.[30]The first defendant admitted in cross examination to two other convictions. The first was an assault on a police officer in the execution of his duty for which he was sentenced to a period of imprisonment following a plea of not guilty. I regard this conviction as relevant to an assessment of the first defendant credibility for two reasons. First, the first defendant was convicted following a plea of not guilty. The first defendant does not suggest that he did not give evidence in his own defence in relation to the allegations that were made against him so that it follows that the magistrates must have disbelieved the first defendant’s evidence. At least equally relevant for present purposes is the fact that there was no mention of this conviction in the first defendant’s witness statement. In my judgment this suggests a lack of candour on his part, not least because he mentions a more recent and possibly more serious criminal conviction in paragraph 15 of his first witness statement, the effect of which he seeks to mitigate in paragraph 16 of that witness statement.[31]The final conviction which the defendant refers to in paragraph 15 of his witness statement was one for which in the end he was sentenced to a total period of imprisonment of seven years. The offences for which he was sentenced included one count of conspiring to supply Class A drugs namely heroin and a count concerning the unlawful possession of a firearm. I regard this as relevant to the issue of credibility for the following reasons. First, the first defendant described the first of these offences in his witness statement as being “… caught in possession of drugs…”. This is not the evidence of a witness of candour in relation to the event in question. Secondly the first defendant was less than frank about the way he described what happened at the trial. In cross-examination, he was asked whether he pleaded guilty to the offences with which he was charged. The first defendant claimed not to have entered a plea at all. In answer to questions from me at the end of his evidence, the first defendant sought to maintain that a plea of not guilty was entered on his behalf either by the court before which he was tried or alternatively by the lawyers who represented him at that trial. I consider it unlikely that a represented defendant would fail to enter a plea one way or the other or that lawyers acting for a defendant in a criminal trial would enter a plea other than in accordance with instructions received. The first defendant told me that he did not give evidence at that trial.[32]The first defendant described the convictions I am now considering in a book ostensibly written by him. In that book he described his arrest and imprisonment in these terms:
“By 1986 I had started running a youth club in Brixton called “the Papine”
. The police raided it and claimed they found drugs there and although I was innocent I was back inside again.” A little later he said of these offences:
“I kept applying for parole because I was a model prisoner I knew they would give it to me if I said that I was sorry for my crying but I never did because I was innocent.”
If, as the first defendant claimed in the book, he was innocent, it is not clear why he would not have pleaded not guilty or would have refused to plead as he now alleges so that a plea of not guilty had to be entered on his behalf. In any event, the description of the offences in the book and his assertion that he was innocent must be untrue if paragraph 15 of his first witness statement in these proceedings is true. It is quite impossible for me to identify which of these versions is correct and I do not attempt to resolve that issue. However, the inconsistency I have identified suggests that the first defendant is likely to say what he considers meets the needs of the moment and regards the truth as an optional extra to be adopted only where it is consistent with those needs. This alone exemplifies why his evidence cannot be accepted save where it is admitted or is against his interest or is corroborated by otherwise unimpeachable evidence.[33]A book ostensibly written by an undercover police officer concerning amongst other things the arrest of the first defendant for the offence as I am now considering was put to the first defendant in the course of cross-examination. The book is written in a populist style which does nothing to understate the role of the author in the first defendant’s arrest or generally. It is not necessary that I dwell further on what is said in that book. I make clear however that I leave its content out of account in my assessment of credibility of the first defendant.[34]Against that background there are only two further examples of the approach of the first defendant to the giving of evidence that I ought to mention for the purpose of explaining why I have reached the conclusions I have concerning the credibility of the first defendant as a witness. On a number of occasions in the course of his cross-examination, Mr. Glen took the first defendant to documents that that had been prepared by him or on his behalf with his knowledge that contained statements that were plainly untrue. For example, the first defendant accepted that on his own case the suggestion contained in literature prepared in connection with the Product that the Product was based on his grandmother’s recipe was untrue. An example of this assertion appears at 5/565. The first defendant attempted to explain these untruths away as “marketing”. Marketing involves persuading people to purchase particular products by accentuating the quality and utility of the products or services concerned. Whilst the process will usually involve maximizing what can legitimately be said in respect of the product or service concerned it does not involve what can properly if legalistically be called fraudulent misrepresentations – that is making false representations of existing or past fact that the representor knows to be untrue. It is this sort of approach that leads me to reach the conclusions I have concerning the candour of the first defendant.[35]Another example of this approach is to be found in a document described by the defendants in their disclosure as “Application details for Dragon’s Den”. This document contains at least two false representations that the first defendant knew to be untrue at the time the document was written. First, under the subheading “what is its unique selling point”, the Product is described as having been “… voted the best and tastiest jerk barbecue sauce in the world”. It had not been. It was described as having been tested for 15 years at Notting Hill Carnival. It had not been. On the first defendant’s own case it had come into existence in 2005. Again these were statements that the first defendant sought to explain away as “marketing”. It is an explanation that fails for the reasons already identified.[36]Finally, I turn to what I regard as the single most important illustration of why the first defendant’s evidence lacks credibility save where it is corroborated, admitted or where it is against the interests of the first defendant. The first defendant’s witness statement (as he accepted at T7/77/13–15) makes it entirely clear that his case is that no agreement of any sort was reached between the first defendant and the first claimant. However, late on in his cross-examination, the first defendant asserted that an agreement had been reached in principle between him and the first claimant whereby the first claimant would allow the kitchen of the café to be used to prepare the first defendant’s sauce. These two versions of events cannot both be correct. I gave the first defendant an opportunity to explain the inconsistency – see T7/78/6–10. He was unable to do so–see T7/78/11–80/8.

The Credibility Of The Witnesses Other Than The Parties

[37]I first identify those witnesses whose evidence was not disputed and whose evidence is therefore agreed between the parties. Of these, Mr. Richard Farleigh and Mr. Eric Woodland–White do not give any evidence relevant to the principal issue I am now concerned with namely whether or not a contract to the effect alleged by the claimant was entered into between the parties.[38]Mr. Paul Smith gives evidence that establishes that the first defendant was purchasing bottles in his own name from the end of March 2006. This evidence is relied on by the defendants as being relevant to when within the time frame identified by Mr. Maharaj a meeting took place attended by the first defendant, the second claimant and Mr. Maharaj. I will return to this evidence later in the judgment when I come to consider the evidence of Mr. Maharaj.[39]The evidence of Mr. Plumley is relevant to an issue of more central importance. It is the first defendant’s case that he developed the sauce that ultimately became the Product 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.[40]Plumbase was and is a plumbers merchant and the first defendant was employed there as a warehouse assistant. Mr. Plumley was the manager of the Stockwell branch of Plumbase at the relevant time. His agreed evidence was that he recruited the first defendant in early 2005. At paragraphs 3 to 5 of his witness statement he says:
“3. Sometime soon after [the first defendant] started working at Plumbase (to the best of my recollection it was around June 2005) he started to bring bottles of home made sauce to work to give to his colleagues. He gave me one of the bottles and a bottle each to everyone else who worked with us. 4. I remember that he wanted to sell the sauce in sachets. During his lunch hours Mr. Graham would often sit in the office area at work drawing designs for sachets for his sauce. 5. He left Plumbase towards the end of January 2006 because he wanted to make a go of his business making and selling the sauce.”
I accept this evidence as I must because it is agreed and because there is nothing in the other material that supports the suggestion that it was obviously wrong.[41]Next I turn to those witnesses who gave oral evidence before me and whose evidence I am satisfied should be accepted as honest and truthful. In each case, I have reached that conclusion because: 41.1. None had significant financial, commercial, social or familial links with either claimant or the first defendant that might predispose that witness to mislead me; 41.2. Each gave evidence in an entirely objective manner, and answered the questions that were put to them without evasion or equivocation; 41.3. None gave any answers in cross examination that caused me to doubt their reliability as witnesses; and 41.4. The demeanour of each while giving evidence was such as to satisfy me that they were each in fact honest and truthful witnesses. For the most part, I have been able to accept the evidence of each of these witnesses in its entirety. Where that has not been so, I have identified the evidence that I have not been able to accept below. Where I have not accepted the evidence of the witnesses I am about to refer to, I am satisfied that the evidence they gave in relation to those issues whilst mistaken was honest.[42]The first of these witnesses is Mr. Dinesh Maharaj. He was called by the claimants. He is a chartered certified accountant and registered auditor. He is currently the accountant who acts for the first claimant and has been for a number of years. He was also the second claimant’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, the second claimant and the first defendant sometime after the end of February 2006. The first defendant’s case is that the meeting took place sometime in March 2006 – see paragraph 74 of his witness statement. The timing is significant for the first defendant’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 the second claimant which he says was made at the end of February 2006. The first defendant maintains that this agreement came to an end on 27 April 2006 in the course of an acrimonious meeting between him and the second claimant at the first defendant’s home. This is unlikely to be true if the meeting with Mr. Maharaj took place after 27 April 2006.[44]Mr. Maharaj’s evidence is that he can recall the meeting as having taken place sometime between March and June 2006 and had been attended by the second claimant and first defendant. According to Mr. Maharaj’s statement, the advice that was being sought from him was “… advice as to the feasibility of setting up the business including the manufacturing, marketing, distribution and promotion of the sauce, and the costs of renting any premises and the purchase of equipment for manufacturing and packaging the sauce.”. In cross examination he said that the purpose of the meeting was to “… check out the feasibility basically …” [T4/163/23-25]. In re-examination he said that “.. my recollection is that they would start very small going to local shops and to produce this properly in sachets and bottles and just get a feel for how this product would take off.” It is entirely clear from this part of Mr. Maharaj’s evidence and from paragraph 3 of his witness statement read as a whole that the business had not started to function in any real sense at that stage.[45]The second claimant’s evidence was that the meeting took place on 2nd May 2006. I reject this evidence as untrue. My reasons for reaching that conclusion are as follows. He says in his statement that a document was created on the second claimant’s computer which consisted of various strap-lines for advertisements for sales of sauce in sachets together with other marketing materials. This material is in the bundle at 5/43. The first point that emerges from this material is that it is exclusively concerned with the sale of sauce in sachets. It is not concerned at all with the sale of sauce in bottles. The implication of the second claimant’s statement is that a discussion concerning the sale of sauce in bottles took place for the first time at the meeting with Mr. Maharaj. I accept that this is the probability because it is consistent with(a) the discussion being about sales in sachets up to that meeting as evidenced by the documents at 5/43,(b) with Mr. Maharaj’s evidence that the discussion in the meeting concerned sale in sachets or bottles and(c) the second claimant’s evidence that the discussion concerning the sale of sauce in bottles arose at or after the meeting with Mr. Maharaj as a result of it becoming apparent that the costs of supplying in sachets would be too high. This leads me to think that the meeting must have taken place much earlier that the 2nd May 2006 and in fact before the 23rd March 2006. I say this because of the evidence contained in the unchallenged statement of Mr. Paul Smith. Mr. Smith’s unchallenged evidence is that the first defendant’s first purchase of bottles from HS French Flint Limited was on 23rd March 2006. Given the basis on which Mr. Maharaj was asked to advise was in relation to feasibility and by reference to the supply of sauce in sachets at least initially, the probability is that this purchase would have been after not before that meeting. Given that it would appear that the discussion concerning the mode of supply prior to the meeting with Mr. Maharaj had been exclusively focused on supply in sachets it is likely that the earliest that any consideration was given to the supply of sauce in bottles was at or after that meeting. For these reasons I conclude that the meeting in fact took place before the 23rd March 2006.[46]The second claimant’s ostensible reason for saying that the meeting took place on 2nd May 2006 was because when he re-opened the document at 5/43 on his computer it showed that it was either created or last opened on 2nd May 2006. There is no independent evidence that this is so. The second claimant dealt with this issue in cross examination in a manner that was wholly unsatisfactory. It was put to him that at the time he signed his statement he must have known that the meeting took place earlier than 2nd May 2006 which he denied [T4/25/21-23]. His explanation was that he took the date he claimed was a modification date as being the date when the document was created. In the end the second claimant was driven to concede that the documents I have mentioned [5/43] were documents that were exclusively concerned with the sale of sauce in sachets and that it was these documents that were the subject of discussion with Mr. Maharaj – see T4/38 – 39/4. Once that is accepted then it is inherently unlikely that the meeting took place as late as the 2nd May 2006 because by then the first defendant was purchasing substantial numbers of bottles. The sachet idea had been abandoned at least temporarily. These conclusions further damage the credibility of the second claimant as a reliable witness and substantially undermine his case that there was a subsisting relationship after 27th April 2006 which is when the first defendant says he brought the relationship to an end.[47]The evidence of both Mr. Baxendell and Ms Williams was truthful and accurate. However, the evidence of Mr. Baxendell was immaterial to whether a contract to the effect alleged by the claimants had been concluded between them and the first defendant. Ms Williams’ evidence is likewise immaterial save in one respect. Her evidence was that she believed the sauce the first defendant brought to her for development into a commercially exploitable product had not been cooked. It was clear to me that she honestly believed that to be so but was mistaken in that belief. I say this because the evidence of Mr. Holder (whose evidence I accept in its entirety for the reasons given below) was that he saw the first defendant cooking sauce and this corroborates the first defendant’s case that his sauce was cooked.[48]Mr. Dipin Patel was a fellow employee of the first defendant at Plumbase in 2005. Mr. Holder was a customer of Plumbase during this period. Although each maintains a passing acquaintance with the first defendant (see T5/9 (Mr. Patel) and T5/15/3 - 16/10 (Mr. Holder)), it was not suggested to either of them that they had anything to gain from giving false evidence to me. Although Mr. Glen submitted that their evidence ought to be treated with circumspection because of this transient connection, I regard this submission as unrealistic not least because the suggestion that they might give perjured evidence for this reason was not suggested to them. There is nothing in the surrounding evidence which suggest they would have any reason to mislead me and in my judgment they were witnesses whose evidence I can safely accept as truthful and accurate.[49]Mr. Patel’s evidence which I accept was that he was employed at Plumbase in 2005 and 2006. He remembered the first defendant preparing some spicy sauce that he brought into work for tasting by colleagues. Mr. Patel said in his statement that the first defendant did so on more than one occasion, that he was experimenting with different versions of the sauce and that this took place sometime before the end of August 2005 because Mr. Patel remembers the first defendant saying that he would be taking the sauce to the Notting Hill Carnival which was to take place in late August 2005–T5/7/12–22. Mr. Patel was pressed to agree that the first defendant said the sauce was one that he had been preparing for years for the Carnival. Mr. Patel did not recall him saying such a thing. However he did recall that the first defendant was experimenting and brought in at least a few different versions of the sauce– see T 5/9/12 - 10/1. I accept this evidence.[50]Mr. Holder was a customer of Plumbase as I have said. His evidence is that he got to know the first defendant because he was an employee Plumbase, the plumbers’ merchants he used at the time for supplies needed for his business. In his statement, Mr. Holder says that as a favour he went to the first defendant’s home in order to fix a tap. He went with his son who was at that time working for him. In his statement, Mr. Holder says this would have been in June or July 2005. Mr. Holder was pressed to explain how he could recall the period so accurately. He explained that his son worked for him only for a short period between March and August 2005–See T5/12/18–20. He was able to further refine the likely time of the visit to June or July 2005 by reference to the task being undertaken, the relative skills of his son at the time and the fact that he recalled instructing his son to carry out the work– See T5/12/23–13/10. I found this evidence entirely convincing. Thus I accept that the visit to which Mr. Holder refers took place in either June or July 2005. Mr. Holder’s evidence was that on this occasion the first defendant was cooking something that smelt good and was described by the first defendant as jerk sauce. His evidence was that he was given a bottle of the sauce a few days later and that he told the first defendant he thought it would sell well see paragraph 5 of his witness statement. I accept this evidence is true.[51]At this stage it is convenient to mention Mr. Neil McGovern. Mr. McGovern was to be called to give evidence but in the end was not able to give evidence (because he was in India) and his evidence was admitted by agreement as a Civil Evidence Act statement. In those circumstances it is open to the claimants to submit that I should not give any evidential weight, or should give reduced evidential weight, to the statement because it has not been tested in cross examination. I accept what is said in the statement simply because it is consistent with the evidence of Mr. Plumley, whose evidence is agreed, and with the evidence of Mr. Patel and Mr. Holder whose evidence I accept.[52]Mr. McGovern confirms that(a) the first defendant brought bottles of sauce to work and gave them to other members of staff;(b) the first defendant gave sauce to Mr. Holder, a Plumbase customer, and a special, onion free, version of the sauce to Mr. Dipin Patel, a fellow employee of the first defendant’s; and(c) he visited the first defendant’s flat sometime in the summer of 2005 and remembered seeing cooking equipment which he says the first defendant used for cooking sauce and also a large oil drum jerking Pan in his garden. Mr. Glen drew my attention to paragraph 5 of Mr. McGovern’s statement where he says that the sauce in the initial bottle supplied by the first defendant to him tasted strongly of ginger whereas when he tasted the Product he noticed that it did not taste as strongly of ginger. This led Mr. Glen to submit that what was supplied initially was not the Product (no one suggests it was because the Product was not being manufactured commercially in 2005) or the prototype for the Product. However that has not been suggested either. All that has been suggested is that the first defendant was experimenting with different formulations in 2005 and supplying various formulations to his co-workers for tasting.[53]In the end Mr. Glen had no rational explanation for how the first defendant’s conduct in 2005 in cooking sauces and distributing them to his co-workers and Mr. Holder was consistent with the notion that in 2006 he wanted to go into business exploiting commercially the sauce which the claimants allege was made by the first claimant to a secret recipe. Had the evidence been that the sauce manufactured by the first defendant been inedible or unpalatable the position might have been different but that is not the evidence which is entirely to the contrary.[54]There are two other witnesses that fall within the category I am presently considering. The first is Ms Nadia Jones. I accept her evidence in its entirety. Ms Jones is a business adviser and centre manager for the London youth support trust, a registered charity that supports young less advantaged people who aspire to establish businesses. As might be expected, Miss Jones gave her evidence entirely objectively answering all questions put to her fairly and appropriately. Importantly, she has no connection with any of the principal protagonists other than a historical professional contact with the first defendant. In 2006, Ms Jones was a business champion employed by GL E1, and business development support agency. Ms Jones says and I accept that she first met the first defendant in August 2006. On the first defendant’s case his only relevant relationship had been with the second claimant and that had come to an end at the end of April 2006. The first defendant sought a loan of £1000 because he wished to fund the more extensive manufacture of his sauce for sale at the Notting Hill Carnival due to take place in August 2006–see T5/185/11–16. Ms Jones facilitated such a loan and also encouraged the promotional placing of the sauce being manufactured by the first defendant at a fundraising ball held in September 2006. Ms Jones says in her statement that she was impressed by the first defendant’s passion for his business, his hard work and self-discipline. In relation to the involvement of others, Miss Jones says that there was never any mention of anyone else being involved– See T 5/187/7–11. The first defendant did not say that the sauce was being made with someone else or sold with someone else–see T5/187/12–16. However the first defendant did tell Ms Jones that he had demonstrated the demand for his sauce from trading at the Notting Hill Carnival.[55]The other witness falling within this category is Mr. Prabakar. It was not suggested to this witness in the course of his cross-examination that he was giving dishonest evidence and I am entirely satisfied that he was not. It was not suggested that Mr. Prabakar had a continuing relationship with the first defendant or that he had any motive for seeking to mislead me. He is the joint proprietor of Morley’s chicken, a fast food restaurant in Brixton to whom the first defendant sold sauce after he started to produce it at home in 2006. Insofar as his evidence is material he says in his witness statement that:
“I have known the first defendant in this matter … since one day at the end of 2005 or early 2006 when he came into Morleys with a small bottle of sauce. I recall that he was working very nearby at Plumbase on Stockwell Green at the time.”
If this evidence is truthful, as I find it is, then the events to which Mr. Prabakar is referring could not have taken place later than the end of January 2006 because Mr. Plumley’s unchallenged evidence is that the first defendant left his employment at Plumbase at the end of January 2006. Paragraph 3 of Mr. Prabakar’s statement continues:
“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”
At this time, on the claimants’ case, the first defendant did not know the first claimant’s allegedly secret recipe. Their case is that this was only communicated to the first defendant 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 the first defendant 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 the first defendant was removing sauce prepared by the first claimant for use at the café and selling it without the knowledge or consent of the first claimant 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: “[The first defendant] 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. This conclusion is also consistent with Mr. Prabakar’s evidence both in his statement (paragraph 60) and his oral evidence (T6/108-110). The reference to “a jewellery sample” at T6/108/21 is erroneous. The witness in fact referred to a urine sample.[56]In relation to the second claimant Mr. Prabakar says at paragraph 11 of his statement:
“Recently (that is within the last two or three weeks) a man who introduced himself as Sylvester Williams came to my shop and asked me to give evidence in this matter to say that Mr. Williams was involved in supplying sauce to Morleys. I recognized Mr. Williams (although I did not previously know his name) because I have seen him around with a friend of my landlord who I know as Keith. So far as I can recall I had never spoken to Mr. Williams before he contacted me in the last few weeks. He was not, so far as I was aware, involved in making or selling the sauce with [the first defendant]. When Mr. Williams approached me I told him that I was not willing to become involved and say that he was involved in the business, because so far as I was aware that was not true.”
In paragraph 18 of his witness statement, the second claimant asserted that:
“Mr. Shaw and I personally paid a visit to Morleys. We agreed a price of £3.99 per litre after I had discussed it with [the first defendant] on the phone. There is now shown to me … a sales invoice no 00002 from my receipt book dated 26th April 2006 recording the agreed price of £3.99 per litre with Morleys Chicken. The proprietor and I agreed a price of £3.99 per litre; this was also agreed with [the first defendant] on the telephone who was supposed to be at the meeting but didn’t show up. [The first defendant] may have agreed another price with them later on. The sauce that was supplied to them was made by [the first defendant] and me. [The first defendant] subsequently supplied them on a regular basis based on the initial order”
Mr. Shaw was not called to give evidence and no application was made to adduce his statement as a civil evidence act statement. The second claimant’s statement is odd on its face because no attempt has been made to identify “the proprietor” by name even though anyone negotiating an agreement of the sort alleged by the second claimant must have been told the name of the person he was negotiating with. The statement in the final sentence of the quotation set out above is inconsistent with the suggestion that the first defendant may have agreed a different price at some subsequent stage. The notion that the second claimant was involved in cooking sauce is at odds with what the claimants say was agreed as the areas of responsibility of the parties to what they allege to be the agreement between them and the first defendant. Aside from these points, the document that the second claimant maintains was a memorandum of the agreement he refers to paragraph 18 of his statement is itself odd. During the trial I was invited to inspect and inspected the original of this document. A copy appears at 5/656. This document is odd. The document relied on is the top copy of an invoice from a sales invoice book that would normally be expected to be handed to the customer concerned leaving the carbon copy of the supplier’s record. Aside from the fact that it was not treated in this fashion, it contains no reference to quantities and is not signed on behalf of Morley’s. It purports to record an agreement with “Tony” but there is no “Tony” who worked at Morley’s or at any rate such a person who was authorized to enter into contracts on behalf of that entity. Indeed, it was not suggested on behalf of the claimant to the witness during his cross-examination that there was such a person. Mr. Prabakar was asked whether it was he who made the agreement with the second claimant. He was entirely clear that he made no such agreement; that he dealt exclusively with the first defendant in relation to sauce and that no one else at Morley’s called or would have entered into negotiations for the long-term supply of sauce–see T6/115/16 to 117/2. I accept this evidence is true. It follows from these conclusions that my confidence in the second claimant as a witness of truth and accuracy has been further undermined.[57]I now turn to those witnesses whose evidence I am satisfied I can accept even though the witnesses concerned have a more substantial link to one of the parties than any of the witnesses I have so far considered.[58]The first of these witnesses is Mr. Picton–Howell. 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 the first defendant 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.[59]Mr. Glen submitted that I ought to be cautious before I accepted the evidence of Mr. Picton-Howell because as he put it [T9/76/16 – 77/3] “… Picton-Howell may be professionally qualified but this sauce led him to move firms, bring the work of the corporate defendants to a new practice. He has a 10% … pecuniary interest in the sauce …” I regard this as ultimately unrealistic. As far as I have been able to ascertain the notion that Mr. Picton-Howell’s evidence might be tainted in the manner alleged was never put to him.[60]Mr. Picton-Howell’s evidence is relevant primarily because he produces some documentation that is relevant to the assessment of the credibility of another witness, Ms Anita Flowers. However, without objection on behalf of the first defendant, he was asked a number of questions which went more directly to the contractual issue that arises between the parties. In summary his evidence on these issues was: 60.1. He had been told by the first defendant that the jerk sauce had been sold at Notting Hill Carnival for many years–see T5/98/3–14; 60.2. The first defendant had not at any stage instructed him of the existence of a partnership the exploitation of the sauce–see T5/115/11–22; 60.3. That the first defendant told him that he had made sauce with the first claimant for many years for use at the Notting Hill Carnival, that he made sauce on his own and with others for many years before that and that he was now seeking to market something that he had developed from that sauce–see T5/116/8–11 and 176/6-23; and 60.4. When on 18 February 2007 the second claimant had sent an e-mail to the third defendant’s website claiming to be an original partner and investor of time and money with an entitlement to one third of the business derived from the exploitation of the sauce, the first defendant had sought advice and that the first defendant had told him that the second claimant was someone who was supposed to have invested £5000 but never had – see T5/116/15–19.[61]Although Mr. Glen sought to suggest that this material was in some way supportive of the claimants’ case I am not able to agree. The claimants’ claim is not one that is based upon impermissible development from the sauce manufactured by the first claimant and first defendant in the years down to 2005 for use at the Notting Hill Carnival. It is formulated exclusively by reference to an allegation that the first claimant had a secret recipe that was only disclosed to the first defendant after the making of the agreement that the claimants allege was concluded in February 2006. The statements which Mr. Picton-Howell says the first defendant made to him are entirely consistent with his case. This is significant or potentially so because the statements I have summarized above were said to have been made by the first defendant to Mr. Picton-Howell at a meeting on 17th January 2007 which was the first meeting the first defendant had with Mr. Picton-Howell. Thus these statements were made before any claim had been intimated. Whilst I cannot discount the possibility that the first defendant was giving instructions to Mr. Picton-Howell that were untrue, the instructions that he gave are consistent with the evidence the evidence of Mr. Prabakar, Mr. Holder, Mr. Patel, Mr Plumley and Mr. McGovern.[62]I turn now to the other witnesses. Mr. Fagan was called by the first defendant. He has known the first defendant for many years and his evidence was that the work he undertook for him (packaging and brand design work) was undertaken at lower rates than would otherwise have applied because of that relationship. However, much of his evidence was not challenged. In particular none of the material set out in paragraphs 13-31 of his statement was challenged. In paragraph 13, Mr. Fagan says that he was approached by the second claimant with an inducement to give evidence on behalf of the claimants. He says:
“Mr. Williams told me he was suing [the first defendant] on a “no win no fee basis” because he had been involved in Reggae Reggae sauce originally, and he asked me to join him in the litigation on the basis that my company had designed the original art work. He said it would not cost me anything and that I could make a lot of money out of it. I was not interested because as far as I was concerned we had done some work for a client and had been paid for it. …”
This material assists me in two respects. First, since the allegation made against the second claimant was not challenged, it suggests and I find that the second claimant made the approach to Mr. Fagan that is alleged. Since the implication is that the second claimant wanted Mr. Fagan to advance a false claim and/or give false evidence that supported the claimants’ case it reflects poorly on the credibility of the second claimant as a witness and secondly it enables me to conclude that Mr. Fagan is likely to be a witness on whose evidence I can rely notwithstanding his close connection with the first defendant because he resisted and rejected the second claimant’s blandishments. Mr. Fagan’s responses were those of an honest man.[63]Of the remaining witness, I leave over a consideration of Mr. Hoffman and Mr. Sadiki Bailey (the first claimant’s son) because their evidence is best considered in relation to the factual allegations in relation to which their evidence has been adduced. That leaves Ms Anita Flowers, Ms Ballantyne, Ms Mundle and Mr. Mitchell. In my judgment 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.[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 the first defendant 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. Down to the date when the email was sent, she had been in discussion with Mr. Picton-Howell concerning the provision of a witness statement with a view to her being called to give evidence on behalf of the first defendant to whom she had lent money to enable him to continue the project, had provided substantial marketing advice and support and had for a time had an apparently close emotional relationship with him as well. By the time the discussions took place between Mr. Picton-Howell and Ms Flowers, that relationship had ended, she was no longer involved in the first defendant’s business activities and she considered that she was owed a substantial sum by the first defendant to whom she had lent money and also given a car. She considered that contact between Mr. Picton-Howell and her had been engineered by the first defendant on a false basis. This then is the background to an email that she sent to Mr. Picton-Howell dated 31st May 2011 [3/19/359] that was in the following terms:
“Hello Teja: At this present time I have decided not to sign the witness statement. Not because I think Mr. Bailey and Mr. Williams have a case against Mr. Graham, but because as I wrote in my last email, my previous investment and time has not yet been realised. To continue working and investing my time again, for Mr. Graham’s financial benefit without any recompense would be unprofessional and foolhardy of me. I am therefore considering taking legal advice from my solicitor, unless Mr. Graham has got another resolution in mind, which would make me consider and review my position. Kind regards, Anita”
In those circumstances, the defendants submit that I should accept the evidence of Mr. Picton-Howell and thus conclude that what he says Ms Flowers told him represents the true position and anything to the contrary in her oral evidence of the statement that she signed and which was served on behalf of the claimants should be rejected. In my judgment this approach elides two different issues. I accept Mr. Picton-Howell’s evidence as truthful and accurate as I have already indicated. Where his evidence differs from that of Ms Flowers’ evidence, I unhesitatingly prefer his evidence over that of hers. However that does not lead to the conclusion that I should find the position to be as she told Mr. Picton-Howell rather than as she stated in her witness statement. Rather it means that she has given two partially inconsistent statements in circumstances where the email that I have referred to above suggests that she considers giving evidence “ … without any recompense …” would be “ … foolhardy …”. In my judgment the only safe conclusion to reach in such circumstances is that her evidence cannot safely be relied on at all or for any purpose. Although Mr. Vanhegan QC submitted that I could safely rely on Ms Flower’s evidence to the extent that it is consistent across her witness statement and her communications with Mr. Picton-Howell, I am not able to accept that submission. Once a witness has committed him or herself to two partially different versions of events in circumstances where it is to be inferred he or she is unwilling to give evidence without “ … recompense …” the only safe course is to disregard that witness’s evidence entirely other than to the limited extent indicated at the start of this paragraph. Anita”

Factual Findings and Conclusions

[65]The claimants’ primary case is advanced by reference to the oral agreement that they allege was concluded between them and the first defendant in February 2006. That claim as pleaded in Paragraph 8 of the amended Particulars of Claim is that an oral agreement was reached that each would have an equal interest in what is called the “Bailey Sauce Business”. This is defined in Paragraph 6 of the amended Particulars of Claim as meaning “ … selling the Bailey Sauce … in bottles …”. Bailey Sauce is defined in Paragraph 1 of the amended Particulars of Claim as meaning a sauce devised by the first claimant in 1984 in Jamaica. As I have observed already the onus rests on the claimants to prove on the balance of probabilities the existence and breach of this agreement.[66]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.[67]The claimants’ case is supported by evidence from Mr. Hoffman and Mr. Sadiki Bailey, the first claimant’s son. Mr. Sadiki Bailey’s evidence on this issue is contained in paragraph 8 of his witness statement. In essence he says that the first defendant arrived at the café with Mr. Hoffman without warning and that he shouted out to the first claimant to come and show him (the first defendant) how to make the sauce. He then says “… my dad …got up to show [the first defendant] how to make the sauce in confidence. My dad had to show him more than once before he eventually got the hang of it.”.[68]Mr. Hoffman’s evidence in relation to this issue is set out in Paragraph 15 of his witness statement. That paragraph was altered in material respects by Mr. Hoffman in the course of his evidence in chief. In particular he changed the paragraph so as to make clear that the visit to the Café by the first defendant and him was by appointment. He was also anxious to change the terms of Paragraph 15 so as to emphasise that he was paying full attention throughout what he says was the demonstration by the first claimant of how to make his sauce in accordance with his supposedly secret recipe. Mr. Glen asked him in terms whether he could say what the recipe was as a result of the demonstration he says took place to which the response was that he could - see T2/89-90.[69]Mr. Hoffman agreed in cross examination that he was an experienced chef who had himself been running a café since 1994 and making jerk sauce for a large number of years. Thus if Mr. Hoffman’s evidence is correct then the first claimant was apparently content to demonstrate how to make his strikingly popular and successful sauce not merely to the first defendant who he says he was contractually bound to but also to an experienced chef and a trade competitor to whom he was not bound by contract. This is surprising. I have full regard to the point made by Mr. Glen on a number of occasions that these were not sophisticated business people. However that is not an answer to this point. The fundamental foundation of the claimants’ case is that the first claimant had devised a secret recipe while he lived in Jamaica in the early 1980s. It was supposedly so secret that he first wrote down the recipe and then memorized it before destroying the paper record before removing to London. It remained so secret that on the first claimant’s case it was not communicated to anyone before 2004 and even then only first to his employee and then to his son Damian for the purpose of enabling sauce to be made for the purpose of carrying on the business of the Café while the first claimant was in hospital. Aside from this implausibility issue, I draw attention to the difference between the evidence of Sadiki (that the first defendant and Mr. Hoffman arrived without warning) and the evidence of Mr. Hoffman (that the meeting took place by prior arrangement).[70]In my judgment the claimants’ case concerning the alleged demonstration is to be rejected. First, the notion that the claimant 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 the first claimant would have been prepared to adopt such an approach.[71]Secondly however, and more importantly, what the claimants allege occurred would be entirely unnecessary if the first defendant 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 of 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 the first defendant 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 the first defendant 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 the first defendant 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 the first defendant was doing was recycling the first claimant’s sauce taken from the Café is that such an analysis is inconsistent with the evidence that the first defendant 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.[72]In the course of his submissions, Mr. Glen suggested that this analysis was misplaced because there was for example evidence – so he submitted – that the first claimant had prepared a version of his sauce without onions which inferentially was the sauce that was then supplied to Mr. Patel – see T9/21/16-19. I reject this point as one that affects the analysis set out above. The evidence to which reference was being made was paragraph 19 of the first claimant’s statement. However(a) the reference was to a sauce made for the first defendant that was garlic free and(b) it was not suggested in the paragraphs that what was made was made on a one off basis or specifically in 2005. Indeed, the implication from the order of the statement is that this evidence referred to events prior to 2004. The sauce that Mr. Patel had asked for was said to be one that was onion free. Although his evidence suggested that the version he wanted would have to be garlic free as well that does not address the point that the first claimant does not suggest he ever made a sauce that did not contain onions. Thus the only person who could have made a sauce that did not contain onions was someone working for the first defendant or the first defendant himself.[73]All this leads fairly clearly to the conclusion that on the balance of probabilities the first defendant’s description of what happened at the alleged demonstration is to be preferred over that of the claimants. 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.[74]First, the claimants rely on three categories of evidence, each of which it is submitted flatly contradict the case being advanced by the Defendant. First reliance is placed on the evidence of Mr. Maharaj and in particular on his evidence that he was told by the second claimant in the presence of the first defendant at the meeting which I have concluded took place in March 2006 that “… Mr. Bailey had created the sauce and that it was a product that had sold very successfully at the annual Notting Hill Carnival. “ Secondly, reliance is placed on two documents generated by the first defendant which it is submitted flatly contradict his case. The first is an application for support from Sainsbury’s dated 9th August 2006 [5/731]. The other is a document that the defendants in their disclosure have described as being “Application Details For Dragons Den” [5/594]. The document is not dated. However the chronology submitted by the Defendants suggests that the application was submitted on 6th December 2006. It cannot have been earlier than 29th November 2006 because that was the start date for the World Food Market which is where the first defendant was spotted by the BBC researcher who invited him to apply to appear on the Dragons Den programme. Thirdly the claimants rely on two documents that they submit were either created by the first defendant or were approved by him which contain statements that on analysis are more supportive of the claimants’ case than that of the defendants. These documents fall into a different category from those previously considered only because they were not expressly addressed to a third party.[75]I turn first to the Sainsbury’s application form. The claimants rely on this document because they say that the document was written out by the first defendant’s daughter at his dictation. They submit that the contents of the document are more consistent with their case than that of the first defendant. The document contains a section entitled “How Did Your Business Start?” In that box the first defendant caused the following to be written:
“We started in 1986, as a result of requests from customers. From a small stall at the annual Notting Hill Carnival … selling Jerk … chicken … all garnished with our family secret recipe for “the tastiest Jerk BBQ sauce in the world”
. For twenty years the same people return religiously year in year out just to get a taste of the Jerk/BBQ sauce we call “Reggae Reggae Sauce”. In 1991, we first started selling it in home made jars from the carnival and from our family West-Indian take away in South London where it has gained a name for itself already and now due to demand from long standing supporters we are forced to take production seriously. ” It goes without saying that much of what is said in this document is wholly untrue even on the defendants’ case. However quite a lot of what is said does not fit with the known facts or with the Claimants’ case either. The explanation that the first Defendant offered for the contents of this document is that it is essentially a marketing presentation in which he was attempting to create a track record for the product in an effort to gain support. He says that they started in 1986. That is not in any sense consistent with the claimants’ case because the Claimant did not move to the UK until November 1986 and on his own case did not start selling food at the Notting Hill Carnival until the carnival in 1988. Furthermore the first defendant and first claimant did not meet until 1991. On the other hand the defendants’ case is that the first defendant first made and supplied jerk Sauce at the Clapham Common Festival in June 1986 – see paragraph 13 of the Defence [1/61] and Paragraph 33 of the Defendant’s witness statement 3/270]. I do not conclude that what is said here is true. As I have said I am not able to accept the uncorroborated evidence of the first defendant. However what he says in the Sainsbury’s document is consistent with what has been pleaded on his behalf and what appears in his statement. Thus the notion that this document is consistent with the claimants’ case but not that of the defendants is to that extent wrong.[76]The statement that in 1991 the first defendant first started selling the Product or its predecessor from the carnival is wrong on any view since it is now common ground that sauce was not sold other than as an accompaniment to food being cooked and sold from the stall until 2006. The representation that the product was being sold from “our family” take away in South London is said to be consistent only with the claimants’ case. I do not agree. The only shop that either the first defendant or the first claimant had in 1991 was the first defendant who had an interest in a fashion shop which was owned or operated together with his brother. The Café was not taken over by the first claimant until 1997. Thus whilst I agree that what is said in the document is not true, it cannot legitimately be said to be consistent with the claimants’ case either. As I said in the course of the closing submissions, legitimate marketing does not involve making untruthful representations of fact or should not. However it was entirely clear from the first defendant’s evidence that he does not subscribe to that view. He is as I have said already someone who regards the truth as an optional extra. 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.[77]The next document on which the claimant places reliance is the Dragons Den application document. Although it is described as being the application it is entirely unclear whether this document is a copy of the application submitted or an un-submitted draft. It probably does not matter for present purposes since it is the statements contained in the document which are said to be important because they were written or directed to be written by the first defendant. The claimants rely upon the statement in the box which asks the applicant to identify his or her product’s unique selling point. The phrase most relevant for present purposes is “… marketed and tested for 15 years on thousands at the largest street party in Europe the Notting Hill Carnival.” The submission that was made by reference to this text [T9/7] that this in effect could only be a reference to the sauce created as the claimants would have it by the first claimant pursuant to his alleged secret recipe.[78]There are a number of difficulties about that proposition. First, what the first defendant says in this part of the form is untrue. The contrary is not seriously suggested. However there are other statements elsewhere in the form that are also untrue. They do not assist either party but are consistent with a reprehensible attempt to oversell what was on offer. This statement relied on by the claimants is typical of this approach. First the reference to 15 years can only mean at the latest 15 years from the date of the form. As I have explained the date of the form is either late November or early December 2006. Thus 15 years back from then is either late November or early December 1991. It is common ground that the first claimant and first defendant did not start selling food at the Notting Hill Carnival until August 1993. The other point that ought to be made is this: It is common ground that the sauce that was the subject of the Dragon’s Den application was not on any view a sauce made to the first claimant’s allegedly secret recipe. That is so because on the claimants’ own case what was supposedly produced by the first claimant at the demonstration was used as a base from which other versions were developed. It is the claimants’ case that what was described by the first defendant as Reggae Reggae sauce at the Dragon’s Den was in essence that modification. Thus whilst what is said in the document is undoubtedly untrue (and thus further damages the standing of the first defendant as someone whose uncorroborated evidence can safely be accepted) it cannot be said unequivocally to support the claimants’ case.[79]There are a number of other documents that were brought into existence by the first defendant for marketing purposes and which are relied on by the claimants on the basis that the contents are more consistent with their case than with that of the defendants. Reliance was placed on the first defendant’s sachet pitch document which bears the hand written date of 2nd February 2006. This document suffers from the same sort of problems as those I have already considered. It asserts that “our family” have been blending sauce since the 1960s. There is nothing that suggests this is consistent with the first claimant’s case which is that he devised his secret recipe in 1984. The first defendant maintains that he was brought up in Jamaica by his grandmother from 1961 – 1968. There is nothing in this statement that is obviously more consistent with the claimants’ case than with the defendants. There is a reference to the sauce being sold from the stall at the Notting Hill Carnival. The statement that bottles of sauce were being sold separately from food may be untrue but that is not the point for present purposes. The claimants’ case is that the first claimant was exclusively responsible for making the sauce to be used at the Notting Hill Carnival. However the first defendant’s case is that such was not the case and that they made it together each year before the carnival. On that basis this statement does not assist either party in relation to the issues I am now considering. Similar considerations apply to the document at 5/652.[80]The final point left concerns the evidence of Mr. Maharaj. As I have said I found him to be an honest witness who was doing his best to assist the court. There was as I have said a single meeting which was attended by the second claimant and the first defendant with Mr. Maharaj. The key issue concerned the date of that meeting. The second claimant maintained that the meeting occurred in May 2006. If that had been so then what took place at that meeting would be have been supportive and perhaps highly supportive of the claimants contentions not least because it would have been highly inconsistent with the defendants’ assertions as to what had happened. However, for reasons that I have already given that proposition is plainly unsustainable and I find on the balance of probabilities that the meeting took place in March and probably the first part of March 2006. Once that is understood much of what Mr. Maharaj says ceases to assist because it then becomes as consistent with the defendants’ case as it is with the claimants’ case. On the first defendant’s case, at that time he still harboured a hope that the first claimant would agree to be involved contrary to the position that he had adopted down to then.[81]The only real point to emerge from the evidence that may still be relevant is that Mr. Maharaj recalled being told that the sauce had been created by Mr. Bailey. The point made by the claimants is that this remark was made in the presence of the first defendant and not challenged. This is a fair point and one that has to be balanced with the other material that I have so far considered. However,(a) there are no notes that have been kept which enable the nuances of what was said to be clearly understood; and(b) the statement is not strictly correct because the sauce that was to be marketed even on the claimants’ case is something derived from the sauce made in accordance with the first claimant’s supposedly secret recipe. In the next sentence of Mr. Maharaj’s statement he says “The implication was that the sauce was made at Mr. Bailey’s premises”. It is not entirely clear what this is a reference to. If it is a reference to the sauce that it was planned to sell then that provides support for the Defendant in two respects. First it provides support for the notion that this meeting took place much earlier than the second claimant would have me believe. Secondly it provides some support for the notion that at the stage when the meeting took place the first claimant was still hoping that the first claimant would allow his premises to be used for the manufacturing of his sauce. It probably also means that the meeting took place before the alleged demonstration because on the first defendant’s case the first claimant’s reaction to his request that he watch the first defendant prepare his sauce was the point at which it became clear that the first claimant would not involve himself in the project. Thus I do not consider this evidence assists me to resolve the central questions that arise in this case.[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 the first defendant because of a belief on the part of the witness that the first defendant was indebted to him. There is some material that suggests that might be so – see T2/107/15-112/3. 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 – see for example the exchanges at T3/38/24 – 41/2. Thus in my judgment his evidence is not evidence which outweighs the points I have considered already.[84]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 the first defendant 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.[85]This conclusion tends to support the first defendant’s case that there was never an agreement to the effect alleged by the claimants. This is so because it is not suggested by the claimants that the supposedly secret recipe was ever supplied to the first defendant other than at the alleged demonstration. It is not suggested that anyone other than the first defendant was going to manufacture the sauce and in particular it is not suggested that the first claimant 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.[86]As I have said already 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.[87]The material relied on by the defendants is summarized in paragraphs 118-120 of the defendants’ closing submissions. Paragraph 118 contains 21 sub-paragraphs. I intend focusing only on those elements which in my judgment have the quality of un-ambiguity that I have referred to above.[88]In my judgment the conduct of the first claimant was on any view extraordinary if there was an agreement to the effect alleged. The agreement alleged makes no commercial sense if the first claimant had a secret recipe that he guarded as closely as he alleges. On his case it was he who made the sauce for use at the Café; it was he who made the sauce for use at the carnival each year. In those circumstances, why would he enter into an agreement which involved revealing the secret that he had hitherto, on his case, guarded so closely, to the first defendant so as to enable the first defendant (who on the claimants’ case is not a chef and cannot cook) to prepare the sauce for onward sale to the public. On the claimants’ case, the key attraction of the sauce was its unique and appealing flavour. In those circumstances there was no logic in allowing what was to be sold to the public to be prepared by someone who (according to the claimants) is not a chef and cannot cook. This might have been understandable if the intention had been that the first claimant was to retire, so that the joint venture would be a means of providing an income for him in his retirement. However that has never been suggested. The evidence suggests that the first claimant has continued to run the Café as before. Thus, on his case he would continue to make sauce for use in the Café. That being so, why would he not also make the relatively small additional quantities required for the joint venture in its early years?[89]The first claimant did nothing from the date of the demonstration down to August 2006 when he attended the Notting Hill Carnival as usual. He made no attempt to enquire how the first defendant was getting on preparing the sauce, he made no attempt to test the quality of what was being produced, he did not enquire as to how much product was being made, how it was being packaged and, critically, how much had been sold, to whom and with what financial results. He made no attempt to arrange or instigate a meeting of the supposed partners at any stage whether formal or otherwise.[90]Mr. Glen impressed upon me again the need to remember that the first claimant is essentially a simple man in a limited way of business. I fully accept that. However I do not regard this as an answer to the point I am now considering. If as the claimants allege the first claimant was permitting the exploitation of his secret recipe it is inconceivable that he would not want to know what progress was being made. Secondly, whilst I accept that the Café is in a small way of business, it is nonetheless a business that has operated apparently successfully since the first claimant took it over in 1997. As such, if he had been in a joint venture business with the second claimant and first defendant he would have wanted to know when trading commenced and with what results for on his own account one of the few matters that had been agreed expressly was that the parties were to share the profits equally between them.[91]The final point deployed in answer to the point I am now considering is that it had been agreed that the proceeds would be ploughed back into the business. Assuming that there was an agreement at all and that there was such a term agreed, the real difficulty is that at no stage did the first claimant make any enquiries at all concerning the financial performance of the joint venture. It must surely be obvious that a start up business of the sort alleged would be dynamic in nature and decisions would have to be taken as matters progressed on how the business was to develop and when and to what extent any profits should be distributed. The first claimant showed not the slightest degree of interest in any of these issues. It is common ground that what became the product was launched at the Notting Hill Carnival in August 2006. The first claimant was present on his stall from where the sauce was being sold. Even thereafter however, none of the enquiries I have mentioned were made. The least that might have been expected was an enquiry as to how successful the launch had been. There was none.[92]There are two other aspects of the first claimant’s conduct which to my mind are clearly inconsistent with the notion of an existing binding joint venture agreement between the claimants and first defendant. It is common ground that the first claimant was told by the first defendant in December 2006 that the first defendant was to appear on the Dragons’ Den programme – see Paragraph 26 of the first claimant’s witness statement [2/5/199]. If there was a joint venture in being, then it might be expected that the first claimant would wish to appear or be involved given that the recipe that on his case was being exploited was his recipe. Even if he was content to leave marketing to his ostensible joint venturers, it might have been expected that he would at least wish to discuss the presentation either with the first defendant or the second claimant. It is not suggested that he sought to do either.[93]The other aspect to the first claimant’s conduct that I regard as inconsistent with the existence of a binding joint venture concerns the development and sale of a product called “Lightning Sauce”. This product was manufactured by Mr. Sadiki Bailey and is sold over the counter in the Café. This product was one based on what is alleged to be the first claimant’s secret recipe – see T3/28/12-22. According to Mr. Sadiki Bailey this business was commenced 2 years ago – that is during the Autumn of 2009 – that is after the first claimant had been told that the first defendant was to appear on Dragons Den, after the relevant programme had been broadcast, after the official launch of the Product at Lambeth Town Hall that was attended by the first claimant but before the publication of the Mail on Sunday article and before the first claimant made his first contact with the first defendant concerning the Reggae Reggae sauce business – see Paragraph 41 of the first claimant’s witness statement [2/5/203]. Whilst the point is not one that is decisive, in my judgment this conduct is more consistent with the first claimant not believing there was any binding agreement such as is now alleged rather than with him thinking that there was. Had he thought there was such an agreement, he would by then have been demanding accounts, demanding meetings and seeking a division of the profits in accordance with what he claims to have been the agreement between the parties. What in fact he did was nothing except to authorize his son to start exploiting the recipe that on his current case was being exploited by a joint venture partnership in which he was a partner.[94]I now turn to the conduct of the second claimant. His case is that he was the person with financial expertise. On the claimants’ case the first claimant was to have no active role to play in the binding joint venture other than what the second claimant called a consultancy role. Thus the whole of the business was going to be conducted by the second claimant and first defendant. This being so, it was to be expected that it would have been agreed at some stage who was to maintain the books of the business. I fully appreciate in 2006, on the claimants’ case the business was trading in only a small way. However, it was trading and the second claimant knew even if the first defendant did not that it was necessary to maintain books of account recording sales and the costs of sales for two reasons. The first was to be able to deal with all relevant tax issues as and when they arose. Secondly and perhaps more importantly from the parties’ perspective it was necessary for the purpose of judging when the business started to make a profit. It will be remembered that on the claimants’ case it had been agreed that there would be an equal split of profits but initially and for an unidentified period it was intended that the profits be ploughed back into the business. If that was so then it was critical to maintain some sort of financial record to enable judgments to be made as to when profits were being made and for how long profits were to be retained before dividing some or all profits up between the claimants and first defendant. In fact this was never done. This suggests that there was not an agreement of the sort alleged.[95]An additionally odd aspect to this issue is that of all the parties to the alleged agreement the person who on the face of it was least qualified to keep records of this sort was the first defendant. Yet not the slightest attempt was made by the second claimant to either keep such records himself or supervise the keeping of such records by the first defendant or seek to inspect such records – something which in my judgment is more consistent with a recognition on the part of the second claimant that he had neither an interest in or entitlement to inspect such records as were maintained or himself to maintain such records. This is more consistent with there being no agreement than with there being such an agreement. The second claimant’s evidence on this issue was wholly unsatisfactory. He accepted that he had said earlier in his evidence that it was the first defendant who was to maintain the records [T4/115/23]. As far as I can see there is no evidence of any discussion at which an agreement to this effect was alleged. However, he then suggested that the books were to be maintained by Mr. Maharaj [T4/115/24-116/3]. There is no evidence that such a role was ever discussed between any of the parties or between any of them and Mr. Maharaj’s evidence was that he was being asked about the feasibility of a proposed business. I then asked him why he was not to be involved in the book keeping when on the face of it he was the person most qualified to do so. His answer [T4/117/3-7] was “Well, because all the money, my Lord, was being handed 4 over to Levi. He was buying whatever was necessary and 5 he had the receipts, so it was just natural that he 6 would initially be responsible for keeping the accounts, 7 keeping the amount of what's sold, when and what” I asked him why he had not asked to see the books and records of the partnership of which he was supposedly a partner. His response was to say that he did not because he had been excluded by the first defendant [T4/117/8-17]. This was in truth no answer at all to the point which was that there was no evidence at all of any attempt by either claimant to seek access to the books and records of the partnership which they claim to be partners in. This is not conduct that is consistent with the existence of an agreement to the effect alleged by the claimants.[96]There are two other aspects to the second claimant’s relationship with the first defendant that in my judgment are inconsistent with the parties having entered into an agreement as alleged by the claimants. They were focused on in some questions from me to the second claimant at the end of his evidence but picked up on points he had made in the course of his evidence. The relevant material appears in the transcript at T4/111/3- 114/11. In summary the second claimant received a message from Sainsbury’s postponing a meeting that followed the submission of the application to Sainsbury referred to above. I asked the second claimant why when he learned of this important meeting he did not insist on attending it given that on his case he was meant to be involved in marketing. His only evidence on the point in the end [T4/112/3] that he didn’t ask him because on an earlier occasion the first defendant had told him in as many words that he was no longer involved. Assuming that such a conversation took place, it is one that is consistent with the first defendant’s case as to what had been agreed between whom and how it had been brought to an end. The acceptance of that statement as a reason for not even attempting to get involved with the Sainsbury’s meeting is not consistent with the claimants’ case. If there was no such conversation as the second claimant alleges as being the basis for not asking to attend the Sainsbury meeting, then the unanswered question is why he did not ask to attend it. Such conduct is not consistent with the claim advanced by the claimants. The other issue concerned the introduction of an investor. His evidence was that the first defendant was not interested. I asked the second claimant why he had not insisted on taking the investment. The second claimant said first that he did not insist [T4/113/10-19]. Then he said that there was such a conversation [T4/114/1-9]. In my judgment this second response was one made up by the second claimant after it became apparent to him from my questions that his earlier, truthful, response was not helpful to the claimants’ claim.[97]Aside from the points already considered it is significant that at no stage did the second claimant ask for a share of the profits of the business of which on his case he was a partner. This is a point of some significance. In February 2007, the second claimant had sent to the defendants an email asserting that he was a partner and investor in the business being operated by the first defendant. Thereafter, the second claimant maintains that he was in financial difficulty and his house was in danger of repossession. Had he been a partner in the business, it might be expected that he would seek to withdraw some profits in order to meet the debt that had accrued (£5,000). In fact he asked the first defendant for a personal loan. The following exchange took place on this issue during the second claimant’s cross examination:
“Q. Do you want to just go to paragraph 33 where you mention 13 asking for assistance. Paragraph 33 of your witness 14 statement, bundle 2, tab 4. You say you rang him and 15 asked him to lend you £5,000 as you were in financial 16 difficulty to save your property in mid-2007. 17 A. Yes. 18 Q. When was your property repossessed? 19 A. 2008. 20 Q. And why didn't you say you are entitled to the £5,000 as 21 a share of the profits in the business? 22 A. I wasn't having that sort of discussion with Levi about 23 shares in the business, because -- 24 Q. So you never asked him -- sorry, go on. 25 A. I knew what his intention was, his intention was to cut Page 95 1 us out of the business. That's why I asked him to lend 2 me the money. 3 Q. It is fair to say, isn't it, that nowhere in your 4 evidence have you asked Levi for a share of the profits 5 in the business? 6 A. I have never asked him for a share of anything.”
In my judgment this conduct was not consistent with the second claimant believing that there was an agreement to the effect the claimants now contend. Precisely similar points can be made by reference to the fact that (a) the second claimant was not aware that a website had been established, and (b) did not share in any of the proceeds of sale of Reggae Reggae Sauce sold at the 2006 Carnival. In the end the second claimant’s answer to each of these points when put was “… we were excluded from any information relating to Bailey Sauce/Reggae Reggae Sauce …” [T4/87/9-10]. This is not an answer to the points made however because it does not explain why nothing was ever done to force the issue down to the date when the letter before action was sent in February 2010 [8/1] other than the email in February 2007 [6/900] that was not in the end followed up even though it received a reply [6/899].

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[98]In the end the claimants’ closing submission focused on whether the first claimant 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 the first defendant’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 the first claimant 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 the first defendant 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.[100]I now turn to the alternative claim formulated in breach of a duty of confidence. In the circumstances I can do so relatively shortly.[101]The claim for breach of the duty of confidence has been pleaded as arising from the exploitation of the Bailey Sauce (as defined in the amended Particulars of Claim as I have described already) to the exclusion of the claimants. This claim cannot possibly be a claim that is available to the second claimant as was accepted by Mr. Glen at the start of the trial. That being so, and even though there has been no application to amend the amended Particulars of Claim, I propose to proceed on the basis that the claim is brought by the first claimant alone.[102]In order to succeed, the first claimant must show that that which he claims confidence in (his recipe) was imparted to the first defendant in circumstances importing an obligation of confidence - see Coco v. A.N.Clark (Engineers) Limited [1969] RPC 41 at 47.[103]In my judgment the first claimant has no prospect of satisfying this requirement in light of the findings that I have made. The pleaded circumstances in which it is alleged that the information was allegedly supplied was at the demonstration referred to in Paragraph 11 of the Particulars of Claim. As I have already indicated the claimants’ case concerning the alleged demonstration is to be rejected for the reasons I have identified. No other basis by which it could be alleged that the recipe was supplied to the first defendant in circumstances importing an obligation of confidence has been pleaded. On that basis the claim must fail.[104]In any event I question whether the recipe on which reliance was placed by the claimants is sufficiently certain to have the necessary quality of confidence about it to found a claim for breach of confidence. The material relied on must be capable of being realized as an actuality – see De Maudsley v. Palumbo [1996] EMLR 460 per Knox J at 469. Here it is common ground that the only confidential information on which reliance can be placed is the contents of the recipe. The recipe relied on is that set out (without reservation as to confidentiality) in Paragraph 1 of the responses to the Part 18 Request [1/13].[105]It is not necessary that I set out this material seriatim. It is sufficient to note that the recipe is riddled with imprecision as for example “2-3 lbs of chopped onion …”. This recipe was to prepare 25 litres of sauce. Whether 2lbs or 3 lbs of onions are used will make a difference and perhaps a significant difference to the taste of the end product. Similar points can be made by reference to the fact that the recipe does not state whether the seeds should or should not be removed from the Scotch Bonnet peppers, refers to 5-7 whole chopped garlic which is as imprecise as the specification in relation to onions and is significant for the same reasons. Contrary to what the first claimant considered to be the position, soy sauce and browning are different substances with different flavours and different properties. However, the recipe says merely that “150 mls of soy sauce/browning …” should be used. “All Purpose seasoning” is specified but the evidence shows that different proprietary brands of such seasoning contain different herbs with different flavours in consequence.[106]However there are two points which to my mind fatally undermine the notion that this recipe is capable of supporting a claim for breach of confidence. First, it provides that the cook should add “… water to dilute to gain the required thickness and strength …”. No two chefs using the recipe are likely to get the same outcome following a direction of this sort. Some will produce sauce that is runnier and/or weaker than others. The only methodology specified is to blend without specifying for how long or to what consistency. It is then said that the ingredients should be mixed together with ketchup and then stir in water and “… add the vinegar, keep stirring all the time, keep tasting until desired taste is reached.”. This emphasizes what must now be obvious that there is nothing special either about the ingredients or the methodology of making them into a sauce what matters is the strength or weakness and/or taste of the sauce which is a matter for individual preference to be achieved by adjusting the contents of the product.[107]The recipe contains no provision concerning cooking although the first claimant maintained in the course of his evidence that the sauce was cooked – see T1/143-144. If it is to be cooked (and Ms Ballantyne thought it was [T4/138] but Mr. Sadiki Bailey thought it was not [T3/79]) the evidence was (and it is in any event obvious) that the effect of cooking would be to alter the flavour of the end product. If the first claimant is correct and his sauce is to be cooked then this introduces a further random element because the recipe is entirely silent on whether the sauce should be cooked and if so for how long and at what temperature. On the first claimant’s own evidence the outcome could be variable. According to him, when he was in hospital in 2004, he first supplied his recipe to his chef and then to his son. The chef was unable to create a sauce from the information supplied or at any rate one that was useable. That was why what he maintains is the same information was supplied to his son Damian. There is every reason to doubt the accuracy of this evidence. The claimants’ case as to this incident had changed in material respects. But that does not matter for present purposes. If a presumably competent professional chef cannot make a sauce from the recipe that replicates what the first claimant’s sauce was like then the recipe is obviously wanting in particularity.[108]Finally there is an added difficulty. The ingredients used are completely standard and would have to be listed on a sauce that was sold to the public as such. Thus the confidence would be capable of existing only in the quantities used and the methodology of preparation. Those elements are as I say too imprecise to enable the repeated preparation of a product to a consistent standard. In those circumstances I do not consider this recipe is sufficiently well developed to be capable of being confidential information.[109]In any event I question whether the recipe was ever secret in any real sense at all. It was on the first claimant’s own case supplied to his chef in 2004 as well as to his son. He took no steps to ensure that when he prepared the sauce he was on his own. He made no attempt conceal what he was doing from Ms Mundle (T3/109-110) or from Ms Ballantyne (T4/126-127). He was on his evidence happy to demonstrate the making of his sauce at the alleged demonstration not merely to his supposed partner the first defendant but also to Mr. Hoffman who was not only an experienced chef but also the proprietor of a rival café. No confidence was claimed in the recipe when it was set out in the response to the Part 18 request and in was also apparently willing to pass it on to Mr. Sadike Bailey.[110]All this leads me to conclude that the alternative claim formulated as a claim for breach of a duty of confidence must also fail.

Conclusion

[111]This claim is dismissed.

Cited in 1 later judgment