Contract – Breach – Oral contract – First defendant selling popular sauce

Bailey and another v Graham and others: Court of Appeal, Civil Division (Sir Andrew Morritt C, Lord Justices Longmore and Davis): 16 November 2012

The claim concerned the popular 'Reggae Reggae Sauce'. The first defendant, G, purported to be the inventor of the sauce.

The first claimant, B, claimed that G had not invented the sauce, but had been given the recipe by him when G had worked at B's food shop. He alleged that he had invented the sauce many years before G had produced it. He brought a claim in breach of contract and breach of confidence. The judge dismissed the claim, holding, inter alia, that B's evidence could not be accepted unless the facts alleged were admitted, his evidence was corroborated or was against his interest. The claimants appealed.

The claimants submitted that a psychological report compiled by a clinical and forensic psychiatrist on B should be admitted in evidence, which concluded that B was a vulnerable person and could not be relied upon to give consistent testimony in court. That report, it was contended, would help to explain what the judge had characterised as evasiveness and inconsistency on B's part. They further submitted that the judge had erred, first, in that he had failed to give proper consideration to the evidence and, secondly that his methodology had been unsound, in that he had failed to appreciate the strength of the evidence required to establish a fraudulent claim. The defendants contended that the report could have been produced at the trial with reasonable diligence, and if given, would not have had an important influence on the result of the case. The appeal would be dismissed.

(1) With regard to the report, on the evidence there was no doubt that the evidence could have been made available before the trial. Nor would the report have had an important impact on the trial, as the judge's findings had not depended on the credibility of B. Further, the very fact that B's memory was poor and that he had a tendency to change his evidence confirmed the judge's assessment that he could not rely on B's evidence unless it was admitted, corroborated or against his interest (see [44] -[47] of the judgment).

(2) With regard to the judge's consideration of the evidence, he had considered the credibility of the parties and all the other witnesses before him and he had correctly recorded that caution would be required when dealing with much of it. He had rejected the claimants' case not on the basis of G's evidence, but on a consideration of all the evidence that bore on it. In the course of the process the judge had considered the evidence of all the witnesses who had given evidence before him. He had balanced their evidence and the events to which they referred.

The care taken in the evaluation of the evidence demonstrated the judge's consistency with the established authorities. A proper consideration of the whole of his judgment demonstrated clearly that he had surveyed all the relevant evidence on a point before reaching his conclusion (see [57], [58] of the judgment). It was clear that the judge had approached the case properly in assessing the credibility of the evidence (see [58] of the judgment).

Mibanga v Secretary of State for the Home Department [2005] All ER (D) 307 (Mar) considered; Eckersley v Binnie 18 ConLR 1 not followed.

(2) The consideration of methodology was only appropriate in cases, such as the instant case, where there was no undoubted starting point. In other cases, the conventional approach was best used to avoid error (see [59] of the judgment). On the evidence, the judge had not erred in his methodology (see [59] of the judgment). There were no grounds on which the court could interfere with the conclusions of the judge or the orders he had made in relation to either breach of contract or misuse of confidential information (see [60] of the judgment). Decision of Pelling J [2011] EWHC 3098 (Ch) affirmed.

Ian Glen QC and Jonathan Hill (instructed by Simons Muirhead & Burton) for the claimants; Mark Vanhegan QC and Chris Aikens (instructed by EMW Law LLP) for the respondents.