OCADO GROUP PLC & Anor v RAYMOND McKEEVE

Criminal contempt requires proof beyond reasonable doubt of an act which interferes with the due administration of justice and a specific intention to cause that interference. A third party may be liable where, knowing the relevant purpose of a court order, he independently frustrates that purpose. The purpose must be sufficiently clear from the order and surrounding circumstances. Trivial or technical interference is insufficient; the interference must have a significant and adverse effect on the administration of justice. A third party need not have read the order if its relevant purpose is objectively obvious and has been adequately communicated. The court found liability where a third party intentionally deleted an electronic communications system to prevent its court-ordered imaging and search, although the more specific charges concerning destruction of relevant documents, confidential information and listed items were not proved beyond reasonable doubt.

Ocado sought findings of criminal contempt against Raymond McKeeve, a solicitor who advised Project Today Holdings Ltd and Jonathan Faiman. After search orders were obtained in support of Ocado’s underlying claims against Mr Faiman, Today and Jonathan Hillary, Mr McKeeve learned that mobile phones and other devices were being taken for searching. He instructed Today’s IT manager to delete the 3CX communications application, which was accessible through those devices. The application was permanently destroyed.

The contempt allegations concerned destruction of relevant documents, confidential information, listed items and electronically stored material, and alleged interference with the purpose of the search order. The central questions were whether the deletion interfered with the administration of justice and whether Mr McKeeve possessed the specific intention required for criminal contempt.

1. Applicable principles. Criminal contempt requires proof beyond reasonable doubt of an actus reus involving interference with the due administration of justice and a mens rea consisting of a specific intention to interfere with it. Intention may be inferred from the circumstances and is distinct from motive.
2. Third-party liability. A person who is not bound by an order may nevertheless commit contempt through his own independent conduct if, knowing the relevant purpose of the order, he intentionally acts so as to thwart it. The relevant purpose is the purpose the court sought to achieve in administering justice between the parties, as shown by the order’s terms and the surrounding circumstances.
3. Precision and seriousness. A third party should not face criminal liability for frustrating a detailed purpose which he could only guess. The relevant purpose must be sufficiently clear. In addition, the interference must be significant and adverse, rather than trivial or technical.
4. Findings on the 3CX application. The application contained call records, text messages and voicemail records. Those materials would have been relevant and disclosable in the underlying action and would have fallen within the broad category of electronically stored material to be searched. Mr McKeeve knew that a search order existed, knew that mobile phones and other devices were being taken for searching, and knew that the 3CX application was accessible through such devices. His instruction was intended to prevent the application being searched. Its deletion therefore frustrated a general and obvious purpose of the search order and had a significant and adverse effect on the administration of justice.
5. Limits of liability. The specific intention required for the charges relating to documents relevant to the claim, confidential information and documents evidencing Mr Hillary’s work was not proved. Mr McKeeve lacked sufficiently precise knowledge of those particular purposes and was not shown to have intended to destroy material of those defined kinds. The Slushminers accounts were suspended but preserved, so no destruction was established.
6. Disposition. Mr McKeeve was not liable on Grounds 1, 3 or 4, but was liable on Ground 5. Costs and sanction were adjourned for further submissions.

The judgment itself records that permission to continue the contempt action was initially refused by the High Court in [2020] EWHC 563 (Ch) and [2020] EWHC 1463 (Ch), but was subsequently granted by the Court of Appeal in [2021] EWCA Civ 145. The present judgment determined the contempt allegations at first instance.