Perkier Foods Ltd v Halo Foods Ltd

There are two applications before me. The first is the application of the Claimant (‘Perkier’), issued on 6 June 2019, to commit the Respondent (‘Mr Tague’) for contempt and/or to sequestrate the assets of the Defendant (‘Halo’) for breach of an order of HHJ Blair QC, sitting as a High Court Judge, made on 21 February 2019 (‘the Order’). The second is Halo’s application, issued on 19 July 2019, for discharge of the Order. Mr Tague is Halo’s Managing Director and, he accepts, its controlling mind for all purposes relevant to the present applications.

The circumstances in which the Order was granted, and the reasons for it, are set out in full in a judgment handed down on 21 February 2019: [2019] EWHC 292 (QB). For present purposes, the following summary is sufficient. Perkier designs and creates recipes and specifications for food snack products, which it markets as ‘healthy’ and supplies to retailers. It has two relevant products: Perkier Bars (‘Bars’) and Perkier Bites (‘Bites’).

HHJ Blair QC considered the purported termination at [20]-[34] and concluded that there was at least an arguable case that the MA had not been effectively terminated. At [35][37], he held that Perkier’s argument that Halo had no right to impose a credit limit gave rise ‘at the very least’ to a serious issue to be tried. At [38]-[40], he expressed a ‘substantial degree of assurance’ that Perkier would at trial establish its right to a mandatory injunction requiring Halo to manufacture Bites. At [41]-[42], he considered the question whether damages would be an adequate remedy as follows:

At [43]-[44], HHJ Blair QC concluded that this was one of the relatively rare cases where a mandatory injunction was appropriate in a commercial context. At [45], he said this:

The Order, which contained a penal notice, provided in relevant part as follows:

HHJ Blair QC refused Halo’s application for permission to appeal. Halo did not renew that application to the Court of Appeal. It is common ground that Halo complied with its contractual obligations (and therefore with the Order) so far as concerns Bars. It is also common ground that Halo did not comply with paragraph 1(b) of the Order, which relates to Bites. In response to an order placed by Perkier in February 2019, it supplied the quantity ordered, albeit late, but a substantial proportion of the product was of such poor quality that it was unsaleable. Nothing at all was supplied in response to orders placed by Perkier in March and May 2019.

In those circumstances, Mr Daniel Saoul QC, for Perkier, says that the failures to comply with the Order amount to contempts of court and seeks to commit Mr Tague to prison and/or to sequester Halo’s assets. For their part, Mr Mohammed Zaman QC and Mr Shakil Najib, for Halo and Mr Tague, say that a failure to comply with an order does not amount to a contempt of court if compliance is impossible. They submit that compliance was impossible here, because the recipes set out the specification annexed to the Order were either too abrasive or too sticky for the machine they had purchased. These recipes, they say, caused the fingers on the machine’s rollers to degrade, shedding plastic into the food mix, which might have made the food produced unsafe.

In Masri v Consolidated Contractors Ltd [2011] EWHC 1024 (Comm), Christopher Clarke J considered the mens rea required to establish contempt of court arising from the breach of an order. Having reviewed the authorities, he concluded as follows at [150]:

Each of the three elements identified by Christopher Clarke J must be proved to the criminal standard: JSC BTA Bank v Ablyazov [2012] EWCA Civ 1411, [2013] 1 WLR 1331, [51]-[53] (Rix LJ, with whom on this issue Toulson and Maurice Kay LJJ agreed).

In Sectorguard plc v Dienne plc [2009] EWHC 2693 (Ch), the respondent said that it was impossible to comply with an undertaking given to the court. Briggs J said this at [32][33]:

In Westminster City Council v Addbins Ltd [2012] EWHC 3716 (QB), Males J set out this passage and went on to consider at [48] ‘whether this principle of impossibility should be extended to a case where compliance with the order is not impossible but is difficult or inconvenient’. At [75], he said this:

The authorities to which I was referred do not in terms decide who bears the burden of proof on the question of impossibility. Mr Saoul submitted that impossibility is in the nature of a defence and should be proved by a defendant to the civil standard. He draws attention to the language used by Males J in the Addbins case (‘defendants… are not in a strong position to persuade the court’), which he says is consistent with the burden of proof being on the defendant. He refers in addition to Reynolds v Long [2018] EWHC 3535 (Ch), in which Rose J at [50]-[55] examined the evidence put forward by a defendant alleged to be in contempt before rejecting the suggestion that compliance was impossible.

Mr Zaman, for his part, submits that, as a matter of principle, the fact that it is possible to comply with the order should be regarded as an essential ingredient of contempt. That being so, the position is similar to that which applies in criminal law: the respondent bears an evidential burden; but once this is satisfied the burden of proving that compliance was possible passes to the applicant and the standard of proof is the criminal standard: see by analogy Phipson on Evidence (19^th ed.), §§6-09 and 6-16, setting out the general rule in criminal law. One of the cases mentioned there is R v Bennett (1979) 68 Cr App R 168, where the Court of Appeal applied the general rule to impossibility in cases of common law conspiracy.

In my judgment, Mr Zaman is correct on this point. Contempt of court, whether criminal or civil, was at common law a misdemeanour: see Dean v Dean [1987] 1 FLR 517, per Neill LJ, cited in Arlidge, Eady & Smith on Contempt (5^th ed.), §12-51. That, together with the fact that its potential consequences include imprisonment and other penal sanctions, is why its elements must be proved to the criminal standard. In Sectorguard, Briggs J reasoned that a person who has no choice, because compliance with the order is impossible, does not have even the modest mens rea required for contempt. It is for the applicant to prove to the criminal standard that the respondent had the necessary mens rea. In a case where the respondent says that compliance was impossible, and there is some evidence to that effect, mens rea is in issue and it should be for the applicant to prove to the criminal standard that compliance was possible, in the sense that the respondent had a choice about what to do. That result is consistent with the general rule in criminal law.

In the vast majority of cases, it will not be difficult for the applicant to prove that compliance is possible. In general, an injunction will not be granted if it would be impossible to comply with it. Furthermore, as the above cases show, it is not necessary to show that compliance would have been easy or convenient or inexpensive. Court orders must be complied with even if compliance is burdensome, inconvenient and expensive. What has to be proved on a committal application, in a case where the respondent has adduced evidence that compliance would be impossible (and so has discharged the evidential burden), is simply that compliance was possible. I would prefer not to qualify the word ‘possible’ with any adverb such as ‘physically’, because it seems

There is, in my judgment, nothing in the authorities to which Mr Saoul referred that is inconsistent with this conclusion, if the reasoning in those authorities is considered as a whole. In Addbins, the passage quoted above from [76] of the judgment shows that breach of the order was, on the respondent’s own case, the ‘inevitable’ consequence of their failure to make a more determined effort to comply. That being so, the allocation of the burden of proof did not matter and so was not directly addressed. In Reynolds v Long, Rose J’s reasons make clear that she regarded the case as a clear one. Again, there is nothing in what she says to suggest that the allocation of the burden of proof would have made any difference to the outcome.

It is important to bear in mind that many of the matters the subject of submissions before me were also in issue before HHJ Blair QC. This is not an appeal from his decision. In considering whether to vary or discharge the Order, I must therefore start from the assumption that the Order was justified when made, for the reasons given by HHJ Blair. As was pointed out by Buckley LJ (with whom Shaw and Oliver LJJ agreed) in Chanel v FN Woolworth & Co Ltd [1981] 1 WLR 485, 492-3:

What counts as a significant change of circumstances is, of course, fact-specific. In principle a change of circumstances could, if significant, relate to any of the elements material to the grant of an interlocutory injunction: the assessment whether there is a serious issue to be tried, the balance of convenience or any other factor relevant to the exercise of the discretion to grant the remedy (including the conduct of the parties).

Breach of paragraph 1b of the Order in refusing, on 14 March 2019, to produce any further Perkier Bites until 25 March 2019.

Breach of paragraph 1b of the Order in failing to manufacture and deliver to the claimant the food products Perkier Bites according to the Finished Product Specifications set out at Schedule C to the Order in the quantities ordered by way of Purchase Order PO 1177 dated 8 March 2019, either promptly or at all.

‘Breach of paragraph 1b of the Order in failing to manufacture and deliver to the Claimant the food product Perkier Bites according to the Finished Product Specifications set out at Schedule C to the order in the quantities ordered by way of the Claimant’s solicitors letter dated 9 May 2019 (sent 10 May 2019) either promptly or at all.’

Perkier’s evidence of fact was given by Dr Steven Turner and Miss Ann Perkins, its founders and directors. Halo’s evidence of fact was given by Mr Tague, its Managing Director. Expert evidence was given by Dr Duncan Campbell for Perkier and Mr Sterling Crew for Halo and Mr Tague. There was a series of videos referred to in the evidence and in submissions, which were given to me on memory sticks and which I viewed.

Where there has been a conflict of oral evidence about what was said or done on particular occasions, I have applied the approach of Leggatt J in Gestmin SGPS SA v Credit Suisse Securities (Europe) Ltd[2013] EWHC 3560 (Comm)at [15]-[21] and summarised at [22] as follows:

There was a great deal of documentary evidence. I refer only to what I consider to be the documents of greatest importance evidentially. Likewise, I have referred only to those parts of the oral evidence which I consider particularly significant.

I now consider the key evidence as it relates to each of the alleged contempts and record my factual findings in relation to that evidence.

It is not necessary to rehearse the history of these proceedings prior to the hearing on 6 February 2019 before HHJ Blair QC. He circulated a draft judgment on Friday, 8 February 2019. On the following Monday, 11 February 2019, Dr Turner emailed Mr Tague. In relation to Bites, he said this:

Mr Tague responded by email on 12 February 2019 indicating that he had a certain amount of stock on the premises and offering to supply that. He also noted that the forecast had doubled, that it would be necessary to employ people to work the line and that the earliest date by which further Bites could be produced was 4 March 2019. In oral evidence, Mr Tague gave another reason for not starting production at this stage: the draft judgment was under embargo, so he ought not to not do anything that might reveal the outcome.

The Order bears the date of 15 February 2019, but both parties agree that it was not in fact pronounced until 21 February 2019, the date when the judgment was formally handed down and the Order sealed. (The date for hand-down appears to have been delayed by the judge.)

Mr Saoul accepts that conduct prior to the making of the Order cannot constitute contempt, but is nonetheless critical of Mr Tague’s inaction following Dr Turner’s email of 11 February 2019. There was, Mr Saoul submits, nothing to stop Mr Tague from instructing his team to start production without informing them of the contents of the judgment. For my part, I do not think it would be fair to draw inferences about Mr Tague’s attitude to compliance from his inaction at this stage. No doubt it would have been possible to give instructions to his team without breaching the embargo, but he was not obliged to do anything until the Order was pronounced. Moreover, although the explanation was not advanced in Mr Tague’s written evidence, I accept his oral evidence that his inaction at this stage was attributable to an honest belief that, because of the terms of the embargo, he should do nothing at all that might reveal the outcome before the judgment was formally handed down.

As to what happened next, the salient points are uncontroversial. Halo delivered three pallets to Perkier on 27 February 2019. Dr Turner tested two cases from the top, middle and bottom of each pallet and found that they did not conform to the specification. He emailed Mr Tague that day rejecting the goods. There was further correspondence in which the parties disputed whether the Bites did or did not conform to the specification and about whether the specification formed part of the contract. There was a further production run and a consignment of Bites was supplied in the week commencing 4 March 2019. Dr Turner and Miss Perkins spent two and a half days that week in the warehouse they used, sampling and evaluating what has been supplied. They concluded that 40% of the stock was out of specification in that many of the Bites were crumbly and misshapen.

Mr Tague initially suggested that they might have been damaged in transit. This was based on something he had been told by Vicky Colton, Perkier’s Supply Chain and Finance Executive, who worked for the transporter. But he accepted in cross-examination that this could not account for as high a proportion as 40% of the Bites being out of specification. It followed, he accepted, that what Halo had produced was of inadequate quality. This was never remedied. So, Halo and Mr Tague accept that there was a breach of the Order. The real question is whether Perkier have proved to the criminal standard that compliance with the order was possible at this stage. I shall come to that later.

Perkier placed a further purchase order on 8 March 2019 (‘the March PO’). It is common ground that Halo did not start producing Bites for this order until 25 March 2019. In his Affidavit, Mr Tague said this was because Perkier had unilaterally changed the packaging without giving Halo sufficient notice. There is email correspondence about the packaging. On 18 February 2019, Halo were advised by Perkier’s printers (Clifton) that Perkier was changing the artwork on its packaging. On 19 February 2019, Dr Turner emailed Halo attaching some alterations to the design of the packaging and making clear that the film on which these designs were to be printed was also to change. Mr Tague responded on 26 February 2019 expressing concerns that ‘we are not aligned on the process regarding this change’ and asking a number of questions about logistics. He emailed Dr Turner again on 27 February 2019 chasing an answer, which Dr Turner gave later that day. There was further correspondence including an email from Mr Tague on 12 March 2019 expressing concern that Perkier was expecting Halo to complete an order of 5,850 cases to be delivered by 29 March when the new film had not been trialled on the relevant machine and Perkier had not confirmed when it would arrive. Later that day (12 March 2019), after a further exchange, Dr Turner made clear that he wanted Halo to trial and approve the new film that week, but if they could not, he would simply use the old film. He said that he did not understand why the packaging had an impact on the production schedule for Bites. The correspondence continued on 13 March 2019, when Mr Tague said that the delivery date (29 March 2019) was ‘totally unrealistic’ because of the unavailability of film stocks. Dr Turner replied on the same day, saying this:

In cross-examination, it was put to Mr Tague that he had enough packaging film to produce more than half of the peanut Bites and slightly less than half of the salted caramel Bites, but he said that it would have been very difficult to do this, given the need to book the labour needed for a production cycle 3 weeks in advance. When it was put to him that it would have been ‘difficult but not impossible’ to begin production earlier than 25 March 2019, Mr Tague answered, ‘Maybe.’ He accepted that starting production on 25 March 2019 made it inevitable that Halo would be unable to supply the product on 29

I find on the basis of Mr Tague’s evidence that Halo could have attempted to begin production of Bites sooner than it did. It would have been inconvenient to do so because it would have been necessary to divert labour from orders for other customers, but he could have done it. However, that is not to say that, if Halo had in fact attempted to begin production earlier, it would have been successful. To understand what would have happened if Halo had begun production before 25 March 2019, it is necessary to consider what happened when it did begin production on that date.

There was a production run of the salted caramel Bites at Halo’s premises on 25 March 2019. Dr Turner attended. In his Affidavit, Mr Tague described the outcome as follows:

On 27 March 2019, Richard Cox, Halo’s Commercial Director, emailed Miss Perkins and Dr Turner.

On 29 March 2019, Dr Turner sent an email to Mr Cox headed ‘Without Prejudice’ (but which all parties agreed I could consider). He said this:

Later the same day, Dr Turner sent another email to Mr Cox asking how production of the cacao & peanut Bites had gone and noting that the immediate priority was the salted caramel Bites.

On 1 April 2019, Emma Davies of Halo emailed Dr Turner in the following terms:

On 23 April 2019, Emma Davies of Halo emailed Klaus Scheel and Wolfgang Sander at Kruger. She said this:

Kruger agreed most of the changes made, with some amendments. The final report included the addition of several statements not found in Mr Sander’s summary – in particular, the following:

It is clear from this that Halo was trying to make the final report more ‘forceful’ so as to bolster its position in its dispute with Perkier. But I reject the suggestion, put to Mr Tague in cross-examination, that Halo were trying to get Kruger to say things they did not believe. Mr Sander had said in his first summary report that he thought there was a problem with the recipe. Much of what is in the final version is simply an elaboration of that. Insofar as new elements were introduced, Emma Davies’s email indicates that her suggestions were based on communications between Halo and Kruger and a comparison of the version she sent him and the version he sent back (particularly as regards the food safety issue) shows that he had considered carefully what he thought it was fair and accurate to say.

It is common ground that Halo’s Kruger machine had been capable of producing Bites in

It was put to Mr Tague that the state of the Kruger machine as at 25 March 2019 could be explained by Halo’s failure properly to maintain it. This was relevant, Mr Saoul submitted, because a party cannot rely on his inability to comply with an order if that inability is caused by his own default. It is not obvious to me that this proposition is correct, at least in a case where the default occurs before the order is made. There may be situations where, because of something the defendant has done (but should not have done) or not done (but should have done) prior to the making of the order, by the time the order is made, it is not possible for him to comply with it. I am far from convinced that, in such situations, failure to comply with the order would amount to a contempt. But I do not need to decide the point because in my judgment the evidence does not establish any relevant default on the part of Halo with respect to the maintenance of the Kruger machine.

The contrary suggestion, which was put to Mr Tague in cross-examination, was that Halo was at fault for not inspecting the fingers on the distribution rollers and for not replacing them when it was obvious that they were wearing down. As to that, the operating manual for the Kruger machine provided, in the ‘Maintenance/Inspection’ section, as follows:

If that stood alone, it might suggest that there was an obligation to check every component made of plastic and replace it if worn. But it does not stand alone.

Reliance was also placed on a document entitled ‘Global Standard Food Safety’ from an entity called BRC Global Standards, which produces detailed food safety standards for food manufacturers and audits manufacturers to ensure that they are meeting these standards. Under the heading ‘Maintenance’, this it said this:

In my judgment, Halo cannot fairly be criticised for failing to inspect the fingers on the distribution rollers in circumstances where the operating manual did not list them as an item that required regular inspection and Halo did not know that they were a ‘wearing part’ or (therefore) that they gave rise to a risk of contamination. Accordingly, it would not be fair to say that Halo had by its own default disabled itself from complying with the Order.

Following Mr Sander’s visit on 3 April 2019, Halo received replacement rollers from Kruger on 19 April 2019, but it is common ground that it did not then fit them to the machine and did not then produce Bites to satisfy the March PO. Mr Tague said that this was because he understood from Mr Sander that it was the recipes that were causing the fingers on the distribution rollers to degrade. Instead, Halo instructed Mr Crew, a food safety expert, to advise.

In the meantime, Perkier had been in touch with Kruger. In his first affidavit, Dr Turner explained that he had had meetings with Kruger on 7 and 23 May 2019 in order to investigate the conclusions expressed in Mr Sander’s report. (Perkier did not proactively disclose any of the emails passing between it and Kruger. Halo had to obtain them by threatening an application for third party disclosure against Kruger.) They show that one of Perkier’s purposes in the discussions with Kruger was to obtain a machine for itself. They also show discussions about changes to the recipe. The first email in which Perkier expressed an interest in procuring a new machine was on 10 April 2019. There were also emails between Perkier and another manufacturer, Wholebake, to which Perkier was considering moving some or all of its Bites and Bars business. (Again, these emails were not disclosed by Perkier. Halo had to obtain them by seeking third party disclosure against Wholebake.) Emails from Perkier to Kruger on 9 May 2019 and from Perkier to Wholebake on 19 May 2019 show that scenarios were being considered in which Perkier or Wholebake would rent or buy a new machine from Kruger. Further emails in May and June 2019 make clear that this remained under consideration, but it was subject to trials of new recipes at Wholebake.

At the same time as these discussions were taking place, Kruger prepared and issued a ‘clarification’ to its earlier report. This was necessary, it was said, ‘because [Kruger] is not content with some phrasing of the report as it might be interpreted falsely’. The evidence makes clear that the clarification report followed discussions between Kruger and Perkier. The ‘clarification’ report said this, under the heading ‘Recommendation’:

Mr Crew came to Halo’s premises on 13 May 2019. His first expert report, dated 19 July 2019, sets out what he found. In summary, he noted that the fingers on the distribution rollers were ‘badly worn and abraded, to such an extent as to pose a significant risk of foreign body contamination’. He noted that he had himself removed two loose pieces of plastic using ‘a firm touch’. These, he said, would certainly have come loose in a vigorous mixing process. He continued:

There was then a discussion of the requirements of EU Regulation 854/2004 and the Hazard Analysis and Critical Control Point (‘HACCP’) principles. Mr Crew was not convinced that the metal detector would be sufficient to detect plastic contamination unless the plastic was dosed with metal. He went on to advise that two studies be undertaken: a ‘full root cause analysis of the potential contamination of plastic’ and a capability study to assess what modification to the recipe, equipment and/or process was required. In answer to questions, Mr Crew explained that it would have been possible to do the capability study within a day. The capability study was not in fact undertaken.

As I have said, it was not possible for Halo to comply with the March PO until the fingers on the distribution rollers had been changed. The evidence shows that the new rollers were received by Halo from Kruger by 19 April 2019. After that date, however, there was no attempt to fit them and, therefore, no attempt to comply with the March PO. Mr Saoul points out that, so far as the period between 19 April and 13 May 2019 is concerned, Halo cannot point to Mr Crew’s conclusions as providing even a subjective explanation for not producing Bites, because Mr Crew did not attend until 13 May 2019. I do not agree. Mr Tague said in evidence that he believed, on the basis of what he had been told by Mr Sander, that there was a problem with the recipe. The exchanges between

The foregoing findings deal with Mr Tague’s subjective beliefs in the period leading up to Mr Crew’s visit. They do not, however, address the question whether compliance with the Order was, objectively speaking, possible – or (more precisely) whether Perkier has proved to the criminal standard that it was possible. I shall turn to that shortly.

The May PO was placed by Perkier’s solicitor’s letter of 9 May 2019. It is common ground that it was never satisfied. Mr Saoul submits that the evidence shows that Halo never fitted the replacement rollers it had received from Kruger. Nor did it explore the possibility of fitting the stainless steel rollers which Mr Crew had suggested as an alternative and which Kruger has since confirmed are available. Mr Saoul points out that, even when on 10 May 2019 it received from Kruger the ‘clarification’ report, which suggested among other things using a smaller batch size, it made no attempt to resume manufacture or to seek further advice from Mr Sander, which had been offered. Even after receiving Mr Crew’s report on 19 July 2019, Halo did not instruct Mr Crew to carry out the root cause analysis or capability study, which in cross-examination he said could have been concluded in a matter of hours. Mr Tague did not instruct his team to resume production using smaller batch sizes. In fact, Mr Saoul submits, there was no attempt to explore alternative production methods until September – and even then, the attempts were in truth directed at undermining Perkier’s evidence for this application, rather than at complying in good faith with the Order.

Again, it is not disputed that Halo failed to meet the May PO. It is Halo’s and Mr Tague’s case that this was because the recipes did not work. Although new rollers had been supplied, Halo and Mr Tague believed that if they fitted these rollers and started production using the original recipes, the problem would recur and the fingers on the rollers would become abraded again, with the risk that the product would become contaminated.

In the light of the oral and documentary evidence as a whole, I find the following facts:

Redacted emails passing between Perkier and Wholebake and between Perkier and Kruger were disclosed at a late stage in the preparation for this hearing as a result of the threat of third-party disclosure applications by Halo. Unredacted versions of these emails were later disclosed by Perkier. Mr Zaman placed considerable reliance on these documents. He submitted that, taken as a whole, they show that: (a) Perkier planned to acquire a Kruger GFT machine from at least 10 April 2019 in order that Perkier could transfer the production of Bites and Bars from Halo to Wholebake; (b) Dr Turner devised and executed a plan to ‘rent to buy’ a Kruger GFT machine involving Wholebake; (c) Dr Turner and Kruger developed new ‘workable’ recipes for each of the three flavours of Bites that would be manufactured by Wholebake, whilst at the same time maintaining a pretence that the Court Order recipes worked; (d) Wholebake carried out manufacturing trials of Bars and Bites at its premises; (e) Perkier has entered into an arrangement under which it can have long-term access to the Kruger machine; (f) Wholebake have continued to manufacture Bites to the ‘new’ recipe to Perkier’s satisfaction and can also manufacture Bars to Perkier’s satisfaction; (g) Perkier’s purchase of the Kruger machine has been deliberately deferred until after the conclusion of these applications in order to give the pretence that the arrangement with Wholebake is temporary only.

Before considering whether the evidence justifies these findings, it is necessary to say something about their relevance to the issues arising in these applications. Mr Zaman used the third-party disclosure to mount what may be fairly described as a full-frontal attack on the honesty and motives of Dr Turner and Miss Perkins and, therefore, of Perkier. That attack included vigorous criticism of Dr Turner and Ms Perkins for failing to disclose the correspondence with Wholebake and Kruger. Mr Zaman submitted that these points were relevant in three principal ways. First, the documents were relevant to the main issue on the committal application – whether compliance with the Order was possible – because they showed that Wholebake was also having difficulties with the original recipe and that Perkier accepted that changes were needed. Secondly, they showed that the injunction was no longer required, because – by contrast with the position when the Order was made – Perkier now had available an alternative machine on which it could produce Bites (and Bars). Thirdly, if, as Mr Zaman submitted, there was bad faith on the part of Perkier, that was a powerful factor relevant to the exercise of discretion, which should tell in favour of discharge of the Order.

Insofar as the newly disclosed documents discuss changes to the recipe, they are obviously relevant to the central question on the committal application – whether the original recipes were viable. Insofar as they bear on the availability of an alternative machine, they are also obviously relevant. Even though the stage of standard disclosure has not yet been reached, I consider that these documents should have been disclosed by Perkier together with the evidence it filed supporting the committal application. But I am not convinced by Mr Zaman’s general attack on Dr Turner’s and Miss Perkins’s honesty. Having considered the correspondence as a whole, and having heard them both give evidence, I find that both of them gave essentially truthful accounts, albeit – as was also the case for Mr Tague – the importance to them of what was at stake in the dispute between Perkier and Halo led to their adopting perspectives that were sometimes less than objective.

In the light of these conclusions, it would be disproportionate to set out the correspondence in extenso. I summarise instead the key documents and the conclusions I draw from them. Emails between Perkier and Kruger beginning on 10 April 2019 and continuing in April, May and June 2019 show that Perkier was seeking to procure from

The Kruger machine was delivered to Wholebake’s premises at the end of July 2019. The rental was paid jointly by Perkier and Wholebake. Extensions to the rental period were agreed. On 30 September 2019, Dr Turner wrote to Klaus Scheel of Kruger in these terms:

Mr Zaman said that these emails, some of which were only disclosed during the trial, show beyond doubt that Perkier had the ability to secure a Kruger machine up to the end of 2020. This, he said, marked a fundamental and significant change of circumstances from the position when the Order was made. Miss Perkins was cross-examined on these emails. She said that the reference to ‘end 2020’ was a typographical mistake. She had meant to refer to the end of 2019, not the end of 2020. When asked how such an error could have been made twice, she suggested that it might have been the result of cutting and pasting, but she eventually accepted that that was an unlikely explanation, given the different terms of the two emails.

In my judgment, and contrary to Mr Zaman’s suggestion, neither this passage of crossexamination nor the late disclosure of these emails demonstrates that Miss Perkins was being untruthful in her oral evidence. The emails on 25 October 2019 referred back to a conversation with Joerg Maskow of Kruger on 23 October 2019, which Miss Perkins described in an email to Mark Gould of Wholebake on the same day in these terms:

Nor do I accept that Dr Turner’s written evidence was deliberately misleading on this point. It is true that, in his affidavit, he said that it had been in May 2019 (rather than April 2019) that Perkier had started to explore the possibility of renting (rather than buying) a Kruger machine. But the discrepancy in dates was not significant; and the precise details of the arrangement were not critical: the fact of the arrangement being explored with Kruger was deposed to, so Halo could (and did) seek further disclosure about it. When disclosure was sought, Perkier’s solicitors replied on 3 October 2019 that ‘correspondence leading up to the rental was between Kruger and Wholebake and our client does not have copies of the same’. This was not accurate, because it omitted to mention the emails passing between Perkier and Kruger. But I accept that it was an error, not a deliberate attempt to mislead.

Considering the evidence as a whole, I accept Perkier’s evidence that the arrangement they had with Kruger would allow them to continue to rent the GFT machine only until the end of 2019 or the end of January 2020 at the latest. It also is also plain, however, that Perkier was exploring the possibility of transferring its Bars business to Wholebake. As I have said, the correspondence should have been disclosed because it was relevant to the question whether there remained a need for the injunction to be continued. But although relevant to that question, it was not determinative of it. Perkier were entitled to explore alternative options in the hope or anticipation that the dispute with Halo might be settled on terms that included a release of Perkier from its obligations under the MA and MOU; and there is nothing in the correspondence which indicates that negotiations with Wholebake had progressed so far that it was possible to say that Wholebake was in a position to produce either Bites or Bars at the required scale.

The correspondence between Perkier and Wholebake and between Perkier and Kruger was also relevant insofar as it included discussion about changes to the recipes. On 15 April 2019, Klaus Scheel of Kruger emailed Dr Turner noting that ‘the bigger date pieces could cause issues, especially concerning their high percentage in the recipes. Otherwise recipes seem good from what I can tell by just looking at the recipes’. On 16 April 2019, Klaus Scheel emailed again saying that ‘the smaller date paste would definitely help to reach a consistent material flow and production process’. There were then trials at

On 25 April 2019, Dr Turner emailed Klaus Scheel in these terms:

On 26 April 2019, Dr Turner emailed Klaus Scheel again, asking whether Kruger was still doing small batch trials early next week as planned ‘so we can understand if changing the date size and reducing the coconut sugar in the binder helps’ and suggesting use of agave in place of rice syrup. There was further correspondence about changes to the recipes – and in particular to the binding agents – on 30 April 2019.

There were further trials at Kruger’s premises on 7 and 8 May 2019 and again on 23 and 24 May 2019 and in June and July. On 30 July 2019, Richard Shaw of Wholebake wrote to Florian Tampe of Kruger saying this:

Mr Zaman submits that the fact that there had been 3-4 months of trials, with ‘recipes changing every day’, is a strong indicator that the original recipes were unviable. Dr Turner’s response to this, in cross-examination, was that the changes were minor and in any event were necessary because Wholebake’s production process was different from Halo’s in that Wholebake did not have packaging facilities on site, so the product had to be capable of being transported to a separate packaging facility. Mr Zaman has prepared tables showing the difference between the original recipes and the new recipes disclosed by Perkier in October 2019. There can be no doubt that the changes are more than minor. The significance or otherwise of these changes, however, is a matter that cannot be assessed without reference to the expert evidence.

Mr Crew for Halo and Mr Tague was asked to prepare a report regarding potential food safety issues in relation to the manufacture of Bites by Halo. He had attended Halo’s factory on 13 May 2019. His summarised his conclusions as follows:

Dr Campbell for Perkier was asked to consider whether Bites could be commercially manufactured in a way that would be expected to produce a food compliant with relevant food safety legislation. He had not visited Halo’s premises but instead had visited Wholebake on 29 August 2019 and produced a report dated 6 September. He summarised his conclusions as follows:

After the experts’ meeting, the experts produced a joint statement on 30 September 2019.

The experts agreed as follows:

The two experts then visited Halo’s premises on 22 October 2019 and saw production of Salted Caramel Bites using Wholebake’s recipe. Dr Campbell produced an additional report on 31 October 2019. He noted that the recipe used was ‘essentially identical’ with that used by Wholebake, but there were differences in the production processes. Whereas Wholebake had used a batch size of 10kg, Halo had used a batch size of 41kg. Whereas Wholebake used a roller speed of 60-70% of the maximum, Halo set the rollers to their maximum speed. Whereas Wholebake used a saucepan to heat the syrup, Halo used a large steam jacked mixing bowl. Wholebake’s batch processing time was 8 minutes; Halo’s was 35 minutes. Dr Campbell said this:

Mr Crew also produced an additional report on 31 October 2019. He noted that the process used on 22 October 2019 was the same as for the previous court-ordered recipe run, but made the point that he had not observed the production at Wholebake so could not compare what he had seen at Halo with that. He said that the recipe used for production of Salted Caramel Bites differed from the court-ordered recipe and that this ‘could contribute to the improvement in the mixing characteristics and setting up and stability of the cereal Bites’. He noted the details of the differences between the recipes and in conclusion said this:

Dr Campbell gave oral evidence about the differences between the original recipe and the Wholebake recipe for Cacao and Orange Bites, a matter he had addressed in an appendix to his original report. Although he stood by his conclusion that there had been a ‘significant’ changes in the percentages of some ingredients, he did not think that the changes to the recipes were significant overall. They were minor. Dr Campbell referred to photographs showing that, after only 40-50 hours of use, the new rollers on Halo’s Kruger machine were already rounded and dull due to abrasion. The rollers on the Wholebake machine, by contrast, were not abraded at all. Yet the recipe was the same. His conclusion was that the process at Halo, using larger batches which took much longer to go through the machine, allowed more time for the recipe to set and harden and therefore resulted in greater abrasion to the rollers. The rheology of the product (i.e. the way it flows) depended, he said, not only on the recipe but also the time since the mix was made.

In oral evidence, Mr Crew accepted that the plastic was metal detectable. He said that it was possible that the greater wear seen on Halo’s rollers was attributable to the larger batch size used there, but he could not say for sure having not seen the production method at Wholebake. He remained of the view that recipe was a significant factor causing the original abrasion of the rollers at Halo.

This question must be posed, and answered, for each of the time periods during which it is alleged that Halo and Mr Tague were in contempt of court.

Mr Saoul submits that it was possible for Halo to fulfil the February PO to the contractually required standard. He makes three principal points. First, he points out that – as HHJ Blair QC said – Halo had had no problem producing Bites to an acceptable standard in November and December 2018. This shows, Mr Saoul submits, that it was possible to manufacture Bites using the recipe specified in the Order and the Kruger machine.

Second, Mr Saoul notes that 60% of the Bites manufactured by Halo and delivered pursuant to the February PO were of adequate quality. He draws attention to what Mr Tague had said this at paragraph 66 of his Affidavit in response to the committal application:

Third, Mr Saoul submits that – even looking just at that part of the stock which Halo agrees was of inadequate quality – the photographic evidence shows that there were some properly formed Bites together with other misshapen ones and crumbs. Halo could have separated the properly formed Bites from the other material – a process which takes place anyway – and packaged only the former. This too may have been uneconomic, because it would have resulted in considerable waste, but it would have been possible.

In my judgment these points fail to take adequate account of the position as observed on 25 March 2019. Perkier does not (and, in the light of the contemporaneous documents, could not) dispute that, by that stage, the condition of the distribution rollers had degraded to such an extent that it was not possible to manufacture Bites. I have found that the condition of the machine cannot be attributed to any default on the part of Halo. On and after 25 March 2019, the evidence shows strenuous but unsuccessful efforts over several days to manufacture Bites. The position by that time was that Halo would ‘inevitably fail, however hard [it] may try’ (to echo the words used by Males J in Addbins at [77]). What is unknown is the precise date on which the distribution rollers had degraded to the point that manufacture was no longer possible. It is certainly conceivable that manufacture would still have been possible at the end of February/beginning of March, but – given that the degradation of the rollers was a gradual process – it is more likely than not that, by the beginning of March 2019, the distribution rollers had already degraded to the point where manufacture was not possible and the 60% adequate product delivered in the week of 4 March 2019 was the last the machine could produce before the rollers were changed. In any event, I cannot be sure that compliance with the February PO Order was possible in the period 21 February to 14 March 2019. The first alleged contempt is therefore not proved.

As I have said, Halo made considerable and unsuccessful efforts to manufacture Bites on and immediately after 25 March 2019. It is clear, and admitted, that production was not possible at least until Halo received the replacement rollers on 19 April 2019. I have rejected the submission that Halo was at fault for not properly maintaining the machine. So, compliance with the Order was not possible until 19 April 2019.

Thereafter, I have found that Mr Tague honestly believed that compliance with the Order was not possible because the recipes were unsuitable for the machine and because there was a risk of plastic contamination. Whether he was right about that is, as I have emphasised, a separate question to which I must now turn.

I draw the following conclusions from the expert evidence. First, the most direct way of establishing whether compliance with the Order was possible would have been for Halo to fit the replacement plastic rollers, or the alternative metal rollers suggested by Mr Crew, to the Kruger machine and to undertake a production run using the original recipes, but with smaller batch sizes. Halo could easily have done that. For whatever reason, it chose not to. It also chose not to undertake the ‘root cause’ or capability assessments recommended by Mr Crew. The consequence is that it is necessary to consider more indirect sources of evidence.

Second, what was observed by Dr Campbell on 22 October 2019 was significant. Although a different recipe (the Wholebake recipe) was being used, the fingers on the distribution rollers were already rounded and dull due to abrasion, after only 40-50 hours of use. This contrasted with the rollers on the Wholebake machine, which were not abraded at all, despite being used for 112 hours. I accept Dr Campbell’s view that this is good evidence to show that the abrasion was in large part attributable to the process, not the recipe. Dr Campbell was a careful and balanced witness. He explained, convincingly in my view, why it was that the process used at Wholebake (which involved a smaller batch size and a correspondingly shorter time for the ingredients to cool and set as they pass through the machine) would be expected to generate a more free-flowing mix. Mr Crew, who was careful not to opine on matters on which he had no direct knowledge, pointed out that he had not seen the production method at Wholebake (though he had seen a video of it), so his ability to comment on it was limited. He accepted in crossexamination that it was possible that the larger batch size used at Halo was causing additional wear on the rollers. In my judgment, that inference is irresistible. It is also tellingly consistent with the description given by Mr Tague himself at paragraph 66 of his First Affidavit (see paragraph 84 above).

Third, looking at the evidence as a whole, there is no basis to conclude that the original recipes give rise to any real risk of plastic contamination. The experts agreed at their meeting that contamination by plastic visible to the naked eye would violate relevant food safety legislation, but there was no evidence that any of the product had been contaminated in that way. Mr Crew agreed that, if the plastic had been dosed with metal and was metal detectable, that would go some way to mitigating the risk. He agreed in cross-examination that the plastic was metal detectable. On 22 October 2019, the experts undertook a test and found that visible pieces of plastic were indeed detectable by the metal detector. I note Mr Crew’s view that the fragments tested might have been larger than the smallest visible fragments, but the test showed that the process was in principle effective.

Fourth, it is significant that Halo had been able to produce Bites using the original recipe and to the contractually agreed standard in November and December 2018 and that 60% of the Bites delivered in the week of 4 March 2019 were also of an adequate standard. There is no evidence that any of these Bites was contaminated with plastic. Production became impossible when the abrasion of the fingers on the distribution rollers had reached the point that they were no longer able to perform their function. It is safe to infer that, once new plastic or metal rollers had been fitted, it would have been possible to produce the Bites again, without an unacceptable risk of plastic contamination.

Fifth, the correspondence with Wholebake indicates that there were a number of changes to the recipes (and that some of the staff at Wholebake were beginning to become frustrated by this). The tables prepared by Halo show that the quantities of some ingredients were changed significantly. But, having considered the correspondence in its entirety, I do not consider that it advances Halo’s case that the original recipes were unviable. Perkier was entitled to make efforts to improve its product. Wholebake’s needs were also different because it did not package on-site, so required recipes that would be stable enough to be transported before being packaged.

In the light of these matters, taken together, I am satisfied so that I am sure that – contrary to Mr Tague’s belief – it was from 19 April 2019 onwards possible for Halo to use the Kruger machine to produce Bites using the original recipes without running an unacceptable risk that the product would be contaminated by plastic so as to contravene applicable food safety legislation. Because it is common ground that Halo did not fulfil the March PO, and its controlling mind Mr Tague knew that and knew of the terms of the Order, it follows that in failing to fulfil the March PO after 19 April 2019, both Halo and Mr Tague committed contempts of court.

Insofar as Mr Zaman’s case for discharging the Order depends on the proposition that the court-ordered recipes are unviable, it fails for the reasons I have given. But Mr Zaman also made a separate point. He noted that the Order had been based on the premise that ‘[t]here is no other Kruger machine in the UK and so the Applicant cannot simply find an alternative manufacturer in the marketplace’ (see HHJ Blair QC’s judgment at [41]). But correspondence between Perkier and Kruger and between Perkier and Wholebake (which post-dated the Order) shows that there is now a viable alternative supplier of both Bites and Bars. The correspondence also shows that Wholebake have successfully manufactured Bites at scale using their new recipe. The correspondence between Halo and Kruger shows that the latter is willing in principle to provide a machine. Mr Zaman invites me to reject Dr Turner’s evidence that Perkier could not now afford to purchase one. He points, among other things, to the costs schedule served by Perkier, which demonstrates that it has had no difficulty incurring costs of over £250,000 in respect of these applications; even if Perkier were to buy a machine outright, it would cost less than this. The stark position described by HHJ Blair QC, in which absent an injunction there would inevitably be a damaging hiatus in production of Bites, no longer obtains. Mr Zaman made clear in his submissions that his application was to discharge the Order in its entirety – i.e. not only those parts of it relating to Bites, but the parts relating to Bars as well, because the Wholebake correspondence indicates that it is keen and able to supply Bars. If the Order is not discharged, Mr Zaman submits that – at the very least – it should be varied to permit Halo to use the new Bites recipes, which have been tried and clearly work.

Mr Saoul says that Mr Zaman’s submissions misrepresent the position in which Perkier now finds itself. The true position which emerges from the documents and the oral evidence is that Wholebake would like to manufacture Bites for Perkier, but it cannot do so without clarity as to the long-term position. Perkier cannot provide such clarity because it does not have access either to a Kruger machine on a long-term basis or to the funds necessary to acquire one. Its only option as matters stand is a rental agreement. The documents show that the rental agreement currently on offer is to the end of December 2019 or, at the latest, the end of January 2020. Without the Order, Perkier has no longterm security of supply, risks defaulting on orders and will struggle to secure or commit to further business. The Bites project would become unviable. This would cause significant damage, including reputational damage, to Perkier’s business, because 60% of its customers now purchase Bites. If the Order remains in force, Mr Saoul says that it should not be varied to permit Halo to use the new recipes. The original recipes have completed all the necessary trial and testing for microbiology, shelf-life and absence of key allergens. The new recipes have not, because Halo has refused to allow Dr Turner or Miss Perkins access to its factory to observe the production process and has not supplied product specifications, trial records or samples for testing. If the Order were to be varied, it would be necessary to set out new product specifications and details of the curing and testing processes to be followed. Mr Saoul describes the application to discharge the Order as it relates to Bars as ‘an unattractive attempt to torpedo the Bars business’, which accounts for ‘a very significant proportion of [Perkier’s] turnover’. There is, he submits, no evidence that Wholebake is in a position to supply Bars to the required standard or scale, no evidence of a commercial offer to produce Bars and no evidence that Perkier has placed even a single order with Wholebake for Bars.

I approach Halo’s application to discharge the Order assuming (not deciding) that it was properly granted for the reasons given by HHJ Blair. On that assumption, it is for Halo to show that there has been a ‘significant change of circumstances’ on a matter relevant to the exercise of the discretion to grant the Order. Only if there has been such a change would it be appropriate to discharge it.

Having considered the evidence as a whole, I am not satisfied that there has been a significant change of circumstances sufficient to warrant discharging the Order. I have reached that conclusion for three reasons.

First, although it is no longer true to say that ‘there is no other Kruger machine in the UK’, the correspondence (taken as a whole) shows that the Kruger machine currently at Wholebake’s premises is only likely to be available for a short period unless Perkier and/or Wholebake is prepared to enter into an arrangement to purchase it. I have seen nothing to gainsay Perkier’s evidence that it is not currently in a position to purchase the machine, so that the result if the Order is discharged is that it will have no way of satisfying orders for Bites. The precariousness of Perkier’s position is evident from the correspondence with Kruger, which indicates that the machine is rented on a week-toweek basis. The fact that Perkier has incurred considerable legal costs in relation to these applications does not undermine this conclusion because legal costs are not incurred in one go. Dr Turner and Miss Perkins could not have predicted when it began these proceedings how expensive they would become. The fact that Perkier now has a substantial costs liability (subject to any order that may be made in these proceedings) makes it more difficult, not less, for it to purchase the Kruger machine.

Second, the reason why HHJ Blair granted the Order is that, on the facts, damages would not be an adequate remedy for Perkier. In the light of my conclusion that Perkier does not have the means to secure access to an alternative Kruger machine, that remains the case. If the Order is discharged, it remains likely that Perkier will have to abandon Bites as a product just at the point where it is beginning to achieve some commercial success. In those circumstances, Perkier could no doubt try to quantify the losses it would make. Mr Zaman makes the point that it has attempted to do so by instructing a forensic accountant. But in the light of my finding that there has been no significant change from the position before HHJ Blair QC, any assessment of loss would just be as speculative as it would have been when he made the Order. The task of working out how successful Bites would have been will involve just as much guess work as it would then have done. So, there has been no sufficiently significant change in the facts relevant to the question whether damages would be an adequate remedy for Perkier.

Third, I have considered carefully whether Perkier’s failure to disclosure the correspondence with Wholebake and Kruger should lead, in the exercise of my discretion, to the discharge of the Order. I have decided that it should not. Although the documents should have been disclosed, I do not find that the non-disclosure was the result of dishonesty on the part of Dr Turner or Miss Perkins (or, therefore, Perkier). If it can be shown that the disclosure failures generated extra cost (a matter on which I have not heard submissions), that can be reflected in any costs order. It would be disproportionate to go further and discharge the Order in circumstances where there has been no sufficiently significant change in the factual position relevant to the discretion to grant relief since the Order was made.

Having decided that the Order should not be discharged, I must go on to consider whether it should be varied to permit Halo to use the new recipes, which it accepts are viable. I conclude that it should not, essentially for the reasons given by Mr Saoul. The Order incorporates complex specifications set out in its annexes. These specifications were agreed between the parties. The new recipes have not been tested and new specifications are not available. The drafting of new specifications would be a time-consuming process and could not be done immediately. The issue of a mandatory Order requiring performance of a contract which (at least for a period) had been performed is one thing. The issue of a mandatory Order requiring compliance with new, unagreed and untested specifications is another. Such a course would be almost certain to lead to further disputes and further need for intervention by the court. I note that paragraph 2 of the Order already provides that ‘[a]cts which would otherwise be a breach of this Order shall be permitted if done with the prior written consent of the Claimant’s solicitors’. I hope that Perkier will be prepared to consent under this provision to variation of the recipes if and when the new recipes have been tested, properly documented and agreed. But the formulation of new detailed specifications is an inherently unsuitable matter for judicial resolution.