OCADO GROUP PLC & Anor v RAYMOND McKEEVE

The claimant obtained a search order in support of an underlying claim alleging misuse of confidential information and related breaches by non-parties. The defendant, a third party adviser, sent a short instruction via a VoIP application (the 3CX App) which led to deletion of the application and its contents. The court analysed the distinct elements of criminal contempt — the actus reus of interfering with the due administration of justice and the mens rea of intending to do so — and the special rules that apply where a third party is accused of thwarting the purpose of a court order (drawing on Z Ltd v. A-Z and the Spycatcher line of authorities).

The judge found as fact that the 3CX App was used for voice calls, text messages and voicemails; that some material on the app (call logs, messages, voicemails) would have been disclosable and fell within Schedule C as documents evidencing work by the employee; and that the defendant intentionally caused deletion of the 3CX App intending to prevent it being searched. However the claimant did not prove beyond reasonable doubt that the defendant intended specifically to destroy documents of Ocado's confidential information or that he was party to any pre-arranged plan to destroy all potentially relevant material.

Result: the defendant was held not liable on Grounds 1, 3 and 4 but was held liable on Ground 5 (intentional destruction of documentary material stored on electronic data storage devices, thereby frustrating the purpose of the Search Order).

Background and parties: The case arises from an underlying claim by Ocado against Jonathan Faiman, Project Today (Today) and an Ocado employee, Mr Hillary, alleging misuse of Ocado confidential information and related breaches. Ocado obtained a search order directed at the defendants and any controller of access. The present Part 8 proceeding sought criminal contempt findings against Raymond McKeeve, a Jones Day partner who acted as adviser to Mr Faiman/Today.

Nature of the application: The claimants sought findings that Mr McKeeve intentionally interfered with the due administration of justice by causing destruction of documentary material (notably the 3CX App and certain email accounts and their contents) that was relevant to the underlying claim and/or which frustrated the purpose of the Search Order.

Procedural posture: The present action was a first-instance criminal contempt inquiry following the underlying civil proceedings and execution of the Search Order on 4 July 2019. Permission to pursue the contempt claim had earlier been refused and subsequently granted on appeal ([2021] EWCA Civ 145). The claim form was amended and the issues for trial were refined by orders of the court.

Issues framed:

• Whether the 3CX App and related accounts contained material relevant to Ocado’s underlying claim and/or Listed Items within Schedule C of the Search Order.
• Whether, and to what extent, the defendant intentionally caused deletion of the 3CX App and/or email accounts.
• Whether the defendant’s conduct amounted to criminal contempt by frustrating the purpose of the Search Order, and if so on which of the pleaded grounds.

Court’s reasoning and findings: The judge made careful findings on witness credibility and the factual matrix. The court accepted that the 3CX application was used for voice calls, text messages and voicemail and that its call logs, messages and voicemails would have been relevant and disclosable in the underlying action and could amount to documents evidencing work by the employee under Schedule C, para. 4(d). The judge rejected a contention that the 3CX App had been used as a repository for Ocado confidential material in the sense of the Search Order's definition of Confidential Information.

The court found that the defendant, after learning of the Search Order and that devices were being collected, sent a short instruction (described as "burn it") to Today’s IT manager and then telephoned him; that as a result the 3CX App was terminated and its data irretrievably lost; and that the defendant intended to prevent the app and its contents being available for search and imaging. The judge concluded that the necessary actus reus and mens rea were proved for the particular contempt pleaded in Ground 5 (deletion of documentary material stored on electronic devices thus thwarting the general purpose of the Search Order to image electronic data). However the court held that the claimant had not proved beyond reasonable doubt that the defendant intended specifically to destroy documents constituting Ocado Confidential Information (Ground 4), nor that he had the necessary knowledge and specific intention for the narrower pleaded counts (Grounds 1 and 3). The judgment emphasised the need for precision when imposing criminal liability on third parties for frustrating particular purposes of an order and reaffirmed the distinction between motive and the specific intent required for criminal contempt.

Wider context: The judgment applies established authorities on third-party contempt and the protection of interlocutory orders (Z Ltd v. A‑Z, Spycatcher, Punch, Newspaper Publishing) to a modern fact pattern involving electronic communications and a so-called "burner" communications application. The judge noted the high threshold of proof in criminal contempt (beyond reasonable doubt) and required clarity about the purpose of the order insofar as a third party’s conduct is said to thwart it.

The court reserved directions on consequences, including sanction and costs.

Allowed in part. The court held that the defendant was not guilty on Grounds 1, 3 or 4 because the claimant had not proved beyond reasonable doubt that he intended to destroy Ocado confidential information or specifically to frustrate the detailed purposes of the Search Order; but the defendant was guilty on Ground 5 because he intentionally caused deletion of electronic material (the 3CX App and its contents) accessible via devices and thereby frustrated the Search Order's general purpose of imaging electronic data.

Permission to continue the contempt proceedings was initially refused by Marcus Smith J ([2020] EWHC 563 (Ch) and [2020] EWHC 1463 (Ch)), but the Court of Appeal subsequently allowed the application for permission ([2021] EWCA Civ 145). The present judgment is at first instance following the Court of Appeal's decision.