Ocado Group Plc & Anor v McKeeve

In criminal contempt proceedings, the grounds must identify the alleged conduct with sufficient clarity and specificity to enable the respondent to understand and meet the charge. The originating claim form, or an appropriately attached pleading, must contain the essential particulars. A respondent should not have to construct the case from multiple documents or later submissions.

Amendment is possible, but the amended case must be clearly formulated, timely, and free from unfair prejudice. Where deleted electronic material cannot be identified, a committal application may fail if the alleged contemnor’s knowledge and intention cannot be particularised. The court acts as gatekeeper and must not permit an unclear case to proceed merely because the underlying conduct may have interfered with the administration of justice.

Ocado Group plc and Ocado Central Services Ltd applied under CPR Part 81.14 for permission to commence a criminal contempt application against Mr McKeeve. The alleged contempt concerned interference with the due administration of justice following the deletion of a 3CX application and associated email accounts after Mr McKeeve learned that a search order had been obtained in related proceedings.

The court had previously circulated a draft judgment refusing permission. Ocado invoked the jurisdiction described in Re S (Children) [2007] EWCA Civ 6954, contending that the draft judgment had failed to address material aspects of its case, including the meaning of ground 1 and whether the grounds covered the email accounts. The issue was whether the draft judgment should be revised and whether the contempt application could properly proceed.

1. Application dismissed. The court confirmed that the draft judgment should stand, subject to a limited correction concerning the email evidence and minor corrections.
2. Committal proceedings require clear and fair notice of the alleged contempt. The originating document must identify the accusation with sufficient particularity to enable the respondent to meet it. The respondent should not be required to assemble the case from a claim form, evidence, skeleton arguments, or later submissions. This principle applied equally to contempt under CPR Part 81.14 and contempt for breach of an order under CPR Part 81.10.
3. The court accepted the general approach in Harmsworth v Harmsworth [1987] 1 WLR 1676, as explained and qualified in Group Seven Ltd v Allied Investment Corporation Ltd [2013] EWHC 1509 (Ch). Technical defects may be overlooked in an exceptional case where the respondent clearly understood the allegation, but that exception does not dilute the ordinary requirement of clear particulars.
4. The grounds relied on by Ocado were defective. If ground 1 concerned documents protected by the search order, it faced the same evidential problems as grounds 3 and 4: the deleted 3CX material could not be identified, and it could not be shown that Mr McKeeve knew that the material fell within the relevant category. If ground 1 instead concerned any material relevant to a possible claim, it was too vague and failed to explain what documents were relevant or how Mr McKeeve’s knowledge and intention were to be established.
5. The court stressed that intentional deletion of the 3CX application alone was insufficient. Ocado had to allege and establish intentional destruction of material of the relevant kind, together with the necessary knowledge and adverse effect on the administration of justice. The same reasoning applied to the email accounts, although their recovery meant their evidential position might later differ.
6. Amendment could not be permitted at the supplemental stage. A properly formulated amendment should have been made earlier, with any necessary adjournment and protection against prejudice. The judge was not responsible for formulating Ocado’s grounds, and an adjournment would have amounted to a re-argument.