Ocado Group Plc & Anor v McKeeve

Permission to bring criminal committal proceedings requires at least a prima facie case and a sufficient public interest in pursuing the application. The applicant must identify the essential elements of contempt, including knowledge of the order, the actus reus and the required intention, and must be able to prove them to the criminal standard at trial. Where the alleged contempt depends on the destruction of specifically described material, an inference based only on deletion of an application or account may be too fragile to establish a prima facie case. The court may refuse permission without determining the public interest issue where the prima facie threshold is not met.

Ocado obtained an ex parte search and evidence-preservation order against persons involved in separate underlying proceedings. After learning of the order, Mr McKeeve contacted a person associated with the underlying respondents, who deleted communications and email accounts. Ocado alleged that Mr McKeeve had intentionally interfered with the administration of justice by causing the destruction of material relevant to the underlying claim and material protected by the Search Order.

Ocado applied under CPR Part 81.14 for permission to make a criminal committal application. The central issues were whether the evidence disclosed a prima facie case of the actus reus and mens rea of contempt, and whether pursuing committal proceedings was in the public interest.

1. Application refused. The particulars alleged that Mr McKeeve intentionally caused the destruction of particular categories of documents or information. Ground 2 was abandoned because no claim had been brought against him.
2. The relevant elements of criminal contempt were knowledge of the order; an act which objectively aided or abetted a breach, or frustrated or thwarted the order’s purpose with a significant adverse effect on the administration of justice; and an intention to produce that result. The applicant bore the burden of proof to the criminal standard.
3. At the permission stage the applicable threshold was at least a prima facie case. The higher strong prima facie case standard was confined, on the reasoning in Solicitor General v Holmes [2019] EWHC 1483 (Admin), to cases involving false statements of truth. A prima facie case was also required to establish that committal proceedings were in the public interest.
4. Ocado could not presently show that material of the specific kinds alleged had been destroyed. The email accounts had been recovered but had not been reviewed for relevant content, while the 3CX messages were irretrievably unavailable. The inference that relevant or protected material must have existed merely because the application was deleted was fragile and disputed.
5. Those evidential difficulties also undermined mens rea. Mr McKeeve denied intending to destroy relevant evidence and gave a different explanation for his conduct. The court could not rely on speculative future evidence from the underlying proceedings. The application therefore disclosed no prima facie case.
6. It was unnecessary to determine the public interest issue. The court noted that, had a prima facie case been established, the importance of upholding the search-order regime would likely have made committal proceedings a matter of public interest. The judgment did not determine whether a later application based on fresh evidence or differently framed particulars would be permissible or appropriate.