Ocado Group PLC & Anr v McKeeve

Permission to pursue committal proceedings in private litigation ordinarily requires a strong prima facie case. The court conducts an evaluative assessment of the whole evidence without deciding disputed facts or requiring the applicant to prove contempt at the permission stage.

A case may be sufficiently strong although it depends on circumstantial evidence and inference. Deliberately making potentially relevant electronic material irretrievable cannot itself defeat the inference that its destruction was intended to interfere with justice. Particulars are sufficient if, read with the known background, they leave a reasonable alleged contemnor in no doubt about the substance of the charge.

Once a sufficient prima facie case exists, the court must consider the public interest. A solicitor's deliberate destruction of potentially relevant documents after learning of proceedings and a search order is capable of satisfying that requirement.

Ocado commenced proceedings alleging misuse of confidential information and obtained a Search of Premises and Preservation of Evidence Order against three defendants. Shortly after learning of the order, the defendants’ solicitor instructed their information technology manager to “Burn” a covert 3CX messaging account. The account and its messages were irretrievably deleted.

Ocado applied under the Civil Procedure Rules for permission to commit the solicitor for intentionally interfering with the due administration of justice. Marcus Smith J held that the contents of the deleted material could not be established and that no sufficient prima facie case had been shown. He therefore refused permission.

Ocado appealed. The central issues were the permission threshold, the treatment of inferential evidence, the adequacy of the particulars, whether the electronic material was a document, and whether the committal proceedings served the public interest.

1. Appeal allowed. The judge's conclusion was plainly wrong and his approach to the evidence and allegations was unduly narrow. Permission was granted on the first, third and fourth particularised grounds of contempt. The respondent's notice was rejected.

2. A private applicant ordinarily must establish a strong prima facie case before permission to pursue committal proceedings is granted. The expression describes an evaluative range. It filters out weak or tenuous cases while avoiding a detailed determination of the merits. The court must consider the claimant's and defendant's evidence as a whole, but must not resolve disputed facts or effectively accept the alleged contemnor's evidence before cross-examination.

3. The evidence supported a strong prima facie inference that the destruction was intended to prevent potentially relevant communications from being examined in the proceedings. Circumstantial and inferential cases may be powerful. The loss of the messages through the respondent's deliberate instruction did not entitle him to rely on uncertainty about their contents. His asserted concern for his wife's reputation concerned motive and did not necessarily answer the alleged intention to destroy potentially relevant material.

4. The 3CX application was a document under the Search Order. Its messages were in any event documents and documentary material. That conclusion accorded with the wide definition in Rule 31.4 of the Civil Procedure Rules 1998. The evidence also disclosed communications relevant to the alleged dealings between the underlying defendants and an employee of Ocado.

5. A committal application must state the alleged contempt with enough particularity to enable the respondent to meet the charge. The application need provide only a succinct summary when read against the background known to the parties; evidential detail may appear in the supporting evidence. The respondent could have been in no doubt about the case he had to meet.

6. The court ordinarily considers the strength of the prima facie case before addressing the public interest. Once the strong prima facie case was recognised, the public interest supported the application. An allegation that a solicitor knowingly ordered the destruction of potentially relevant documentation after learning of proceedings and a search order warranted adjudication despite his apology and regulatory self-referral.

7. The substantive committal application was remitted to the trial judge and was not to be determined before the underlying trial. Because of the overlap of issues, both matters should be heard by the same judge, but not Marcus Smith J.

1. Court of Appeal (Civil Division): Allowed Ocado's appeal, rejected the respondent's notice, granted permission to pursue the committal application and remitted the substantive application to the judge conducting the underlying trial: [2021] EWCA Civ 145.
2. High Court, Business List (Chancery Division): Marcus Smith J refused permission to apply to commit the respondent for contempt and ordered Ocado to pay his costs. No neutral citation is stated in the judgment.