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Court of Appeal allows committal application to proceed against solicitor who destroyed documents in response to a Search Order

Ocado Group Plc v Raymond McKeeve [2021] EWCA Civ 145

On 8 February 2021, the Court of Appeal overturned a decision by Marcus Smith J to refuse permission for a committal application to proceed against a solicitor who destroyed documents in response to a Search Order.

The facts of this case are extraordinary. In July 2019, Ocado brought a claim against a former manager of Ocado, Mr Faiman, and his business Today Development Partners (“TDP”), alleging a conspiracy to misuse Ocado’s confidential information. On 3 July 2019, Ocado obtained a Search Order against them.

On 4 July 2019, Mr McKeeve, then a partner at a leading law firm, was notified that Ocado had obtained a Search Order against his client and friend, Mr Faiman. Mr McKeeve’s immediate reaction was to contact the IT technician at TDP and instruct him to “burn all” (or “burn it”). Mr McKeeve then rang the IT technician to repeat this instruction orally. As a result, a covert messaging system used by the alleged conspirators was irretrievably deleted, and the messages on it were not handed over during the execution of the Search Order.

Ocado sought permission to pursue a committal application against Mr McKeeve, alleging that he had intentionally interfered with the administration of justice.

In June 2020, Marcus Smith J held that Ocado could not demonstrate a prima facie case against Mr McKeeve, on the basis that Ocado was unable to prove what exactly had been deleted, and that Mr McKeeve had acted to keep his wife’s name out of damaging publicity (since her name had been used as a pseudonym on the deleted messaging system). In a supplemental judgment, Marcus Smith J also held that “there is no way Mr McKeeve could have understood the true nature of the contempt alleged against him”. Ocado appealed this decision.

Lord Justice Davis (with whom David Richards and Nugee LJJ agreed) allowed the appeal. He held at [61]:

“In the present case, I am in no doubt at all, with all respect to the judge, that he reached a conclusion which was plainly wrong. Indeed 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.”

Davis LJ also held that the evidence was that the deleted messages “would be relevant evidence as to whether or not there was a conspiracy as Ocado alleged” (at [78]), and that whatever his motive may have been, Mr McKeeve “intentionally caused to be destroyed documentary materials which were of potential relevance to the claim” (at [75]). Further, Mr McKeeve “could have been in no doubt as to the case which he had to meet” (at [89]).

The Court of Appeal granted permission for the committal application against Mr McKeeve to proceed.

David Cavender QC and Alexander Brown appeared for Ocado, instructed by Mishcon de Reya LLP.  You can view the full judgment here.