OCADO GROUP plc v MR RAYMOND McKEEVE

In committal proceedings, CPR 81.7(1) gives the court a broad power to direct the attendance and examination of witnesses where this is appropriate for determining the alleged interference with the administration of justice. The power may be exercised even though the witnesses are not called by either party. In an unusual case, the court may treat existing affidavits as evidence-in-chief and permit both parties to cross-examine the witnesses. Relevant considerations include the materiality and uniqueness of the evidence, whether it has been made unavailable by the alleged contemnor’s conduct, the need to test evidence already relied upon, and procedural fairness. The process is not inherently unfair where both parties may cross-examine and make submissions on the evidence.

This was a directions hearing in committal proceedings brought by Ocado Group plc v Mr Raymond McKeeve. The respondent, a solicitor, admitted instructing a witness to delete messages from a private communications system after being told that a search order had been made. The messages were irretrievably lost.

The Court of Appeal had allowed Ocado’s appeal against the refusal of permission to pursue committal proceedings, holding that there was a strong prima facie case of contempt: [2021] EWCA Civ 145. After the underlying litigation settled, Ocado sought an order requiring two witnesses, whose affidavits had been given in the underlying proceedings, to attend the committal trial for cross-examination by both sides. The central issue was whether the court had power under CPR 81.7(1) to make that order and whether it would be fair and appropriate.

1. Power. The court had power under CPR 81.7(1) to make the order. The rule is expressed broadly and must be read with CPR 81.6, which permits the court itself to commence committal proceedings. If the court has power to summon and examine witnesses in proceedings commenced by it, it has a like power in other committal proceedings. The court’s independent interest in determining whether the administration of justice has been obstructed supports that construction.
2. Nature of the evidence. The witnesses were not properly to be regarded as Ocado’s witnesses. Their affidavits had been sworn in the underlying proceedings and had not been served by either party to the committal application. The order could therefore treat the affidavits as evidence-in-chief and permit both parties to cross-examine.
3. Discretion. The proceedings remained adversarial, and the court was not assuming an investigatory function. That did not prevent the order. The deleted messages were plainly material to actus reus and mens rea, the respondent had admitted causing their permanent deletion, and the witnesses were the only realistic source of evidence about the system’s use. Their existing evidence on that issue was terse and required further testing.
4. Fairness and timing. The order did not descend into the arena or align the court with either party. Both parties could cross-examine, with the respondent going second, and neither party would be bound by answers given in cross-examination. The application was not premature because it raised a point of principle and the parties had stated that they would not otherwise issue a witness summons or serve a hearsay notice. The witnesses retained the right to apply to set aside any summons.
5. The order sought by Ocado was accordingly made.

The judgment records the following procedural history:

• High Court: Marcus Smith J refused permission to pursue the committal application but permitted reliance on evidence from the underlying proceedings under CPR 31.22(1)(b).
• Court of Appeal: The appeal was allowed. The Court held that there was a strong prima facie case of contempt and adjourned the committal proceedings pending the underlying litigation: [2021] EWCA Civ 145.
• High Court: Following settlement of the underlying proceedings, Miles J granted Ocado’s application for directions requiring two witnesses to attend and be cross-examined.