Online supermarket Ocado has failed to have a City partner committed for contempt over allegations that he destroyed corporate espionage evidence.

The failed application was made against Raymond McKeeve, then a partner at global firm Jones Day LLP, after the solicitor had caused messages exchanged over a private messaging system to be deleted.

The Honourable Mr Justice Marcus Smith, ruling in Ocado Group Plc & Anor v McKeeve, refused the application, describing Ocado’s case as ‘both fragile and disputed’ and saying the applicant could not prove the nature of the messages.

Ocado is engaged in an underlying dispute with rival Project Today Holdings Limited and its founder Jonathan Faiman. The firm had been granted a search order on Fairman which was executed in July 2019. Upon being served with the search order, Faiman had been in contact with McKeeve, and they were set up as two of five users on a private messaging app called 3CX.

The court heard that McKeeve had later contacted an IT specialist at Today with instructions to ‘burn’ the app. This caused messages and email accounts to be deleted, with the 3CX messages irretrievably destroyed.

Ocado alleged criminal contempt against McKeeve, telling the court that a critical order was ‘wilfully flouted’ and its purpose frustrated or thwarted.

McKeeve told the court that messages on the 3CX app were ‘innocuous’. He insisted the messaging function was used very rarely because of its limited functionality and poor user interface.

The reason he was so concerned that the app should not see the light of day was because his wife’s distinctive name had been used as a username, and this might cause her embarrassment as she was standing in the elections for the European Parliament. His wife Belinda de Lucy was elected as a Brexit Party MEP in 2019.

He told the court: ‘My sole concern was to avoid having my wife dragged into a potentially embarrassing, high-profile investigation, where her name had been used without her consent and without her knowledge. I was concerned about the reputational harm it could cause her. I panicked, and in the heat of the moment committed a serious lapse of judgment.’

The judge said Ocado had not been able to prove that McKeeve intended to thwart the operation of the search order. The applicant had assumed the burden of showing that specific types of evidence had been destroyed, when evidence regarding those documents was going to be hard to adduce.