Grocery delivery business Ocado has been granted permission to make a committal application against a solicitor who advised that potential evidence in litigation be destroyed.
Raymond John McKeeve, formerly a partner with City firm Jones Day, has admitted sending instructions to his clients’ IT manager to ‘burn it’ within minutes of being notified that an order for search of premises had been made against those clients.
In the High Court last year, Mr Justice Marcus Smith refused permission to Ocado to apply to commit McKeeve for contempt of court. Following a challenge in the Court of Appeal, Lord Justice Davis said in Ocado Group PLC & Anr v McKeeve, that decision was ‘plainly wrong’.
The appeal judge added: ‘Such a conclusion would seem to set at a premium, where litigation is under way, the deliberate and irretrievable destruction of documents so that it is then asserted that no one can say for sure what they contained. No court can or should readily countenance that.'
The court heard that McKeeve was a friend and legal adviser to Jonathan Faiman, one of the Ocado founders and owner of a startup company called Project Today. Ocado commenced proceedings against various parties including Faiman, alleging that confidential information had been misappropriated and could be destroyed unless prohibited by court order.
The search order was executed in 2019 and it was accepted that McKeeve used a private messaging system called 3CX to contact the IT manager, who contends he was instructed to ‘burn all’. The solicitor said he wanted to get rid of the messaging system, most of which contained material not relevant to the underlying case, because of references to his wife, the former Brexit Party MEP Belinda de Lucy.
Ocado, described in the appeal judgment as ‘very aggrieved’, raised seven grounds of appeal, including that the judge failed to consider whether the application was in the public interest.
Davis LJ said the judge failed to properly apply the requisite test and placed an unreasonable requirement on what Ocado needed to show.
He added: ‘The obvious inference, in the absence of any explanation, was that the "burn" instruction, given at a time when it was known that Ocado had started proceedings against Mr McKeeve’s clients, was that destruction of (at least) the 3CX app was intended in order to prevent Ocado studying it for the purposes of its case: an intent to thwart the due administration of justice, in other words.’
Permission was granted to make the committal application, and this matter was adjourned to the trial judge. Marcus Smith J, it was ruled, should not hear the trial and committal application.