Ocado Group Plc v Raymond McKeeve  EWHC 3542 (Ch)
On 21 December 2021, Mr Justice Miles ordered that two individuals be compelled to attend the trial of a contempt application, so that they can be cross-examined by both the claimant and the defendant. This is an unprecedented order, justified in the exceptional circumstances of this case.
In July 2019, Ocado brought a claim against Mr Hillary (a former manager of Ocado), Mr Faiman, and his business, 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 a Mr Henery, and instruct him to “burn all” (or “burn it”). Mr McKeeve then rang Mr Henery 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.
The Court of Appeal held in February 2021 that Ocado had a strong prima facie case that Mr McKeeve had intentionally interfered with the administration of justice, and gave permission for Ocado to pursue contempt proceedings.
Both Mr Hillary and Mr Henery provided written evidence concerning the covert messaging system, but this evidence was relatively terse. Ocado sought an order that Mr Hillary and Mr Henery be ordered to attend the contempt trial, so that they could be cross-examined by Ocado and Mr McKeeve. It was common ground that the order sought was “unprecedented”.
Mr McKeeve’s counsel contended that if Ocado was seeking to call these individuals as witnesses then Ocado could not be permitted to cross-examine them: see The Filiatra Legacy  2 Lloyd’s Rep. 337 at 361. Further, it is an open question whether the Court has the power to order the attendance of a witness without the consent of the parties: see Kesse v Secretary of State for the Home Department  EWCA Civ 177 at .
Mr Justice Miles held that in contempt proceedings the Court has its “own independent interest in determining whether there has indeed been an interference with the administration of justice” (at ). He agreed with Ocado’s submission that under the rules applicable to contempt proceedings in CPR 81.7, the Court has the power to order a person to attend the trial and that such a person will not be treated as the witness of either party. The Judge rejected the suggestion that by making such an order, “the court could be seen as in some way descending into the arena and assisting one side over the other” (at ).
He further held that it was appropriate to exercise the power given the “unusual features” of this case, namely that Mr McKeeve (a solicitor and officer of the Court) had deleted the contents of the covert messaging system, and Ocado should be entitled to test the evidence of two of the participants on that system as to what messages were shared on it. Without the order sought, there would be “no realistic way that the witnesses’ evidence on that issue will be tested or investigated further” (at ). It was further held that the order was fair to Mr McKeeve, as he will also be permitted to cross-examine the witnesses.
David Cavender QC and Alexander Brown appeared for Ocado, instructed by Mishcon de Reya LLP.
You can view the full judgment here.