Ocado Group Plc & Anor v Raymond McKeeve

In sentencing for criminal contempt, the court should assess seriousness by reference to the offender’s culpability and the harm caused, while recognising that the relevant factors may overlap. An apology or remorse may be relevant both to seriousness and to the choice of sanction.

A solicitor who deliberately frustrates the purpose of a search order commits serious misconduct because solicitors have a particular responsibility in the administration of justice. Nevertheless, imprisonment is reserved for cases where it is truly necessary. A fine may suffice where the conduct was impulsive, out of character, caused limited practical prejudice, and is followed by acceptance of responsibility.

For costs, success is assessed by the substance of the application rather than by a rigid count-by-count comparison. A pragmatic percentage reduction may be preferable to an issues-based order.

This was a consequentials hearing following the court’s earlier liability judgment, in which Mr McKeeve was found liable on one of four grounds of contempt for procuring the deletion of the 3CX App and thereby frustrating the purpose of a search order.

The court considered the appropriate sanction, including whether a fine or imprisonment was required, and the parties’ competing costs submissions. Ocado sought indemnity costs and a payment on account. Mr McKeeve relied on his success in resisting three grounds, and challenged the costs consequences of a further witness statement.

1. Sanction. The court applied the recommended approach in Attorney-General v Crosland: assess seriousness, decide whether a fine is sufficient, determine the appropriate penalty, and consider mitigation and suspension if imprisonment is imposed.
2. The eight Asia Islamic factors were relevant, including prejudice, pressure, deliberateness, culpability, appreciation of seriousness, co-operation, and acceptance of responsibility. The court held that apology and remorse could properly be considered at the seriousness stage because the factors overlap and bear on culpability and the need for punishment.
3. The deletion of the 3CX App caused prejudice because data required to be preserved and searched was irretrievably destroyed. The practical prejudice was moderated because some information was recovered elsewhere and the underlying action settled on favourable terms. Mr McKeeve’s conduct was deliberate, but impulsive, motivated by personal concerns, and not part of a pre-arranged plan to subvert the underlying action.
4. As a solicitor, Mr McKeeve had a particular responsibility to uphold the administration of justice. Deliberately procuring destruction of a data source within the scope of a search order was highly culpable and warranted a sanction. However, the conduct was not at the most serious end of the spectrum. In light of its impulsive nature, limited effect on the underlying action, early admission of the basic conduct, apology, remorse, good character and the deterrent effect of the proceedings, imprisonment was unnecessary. A fine of £25,000 was imposed.
5. Costs. Ocado was the successful party because it obtained the finding of contempt sought. The four grounds arose from the same factual story and required a broad investigation. The court therefore rejected a rigid division based on the December 2021 amendment or on success ground by ground. Applying the pragmatic approach in F&C Alternative Investments and Kea Investments, it ordered a 40% reduction in Ocado’s recoverable costs, so that 60% were recoverable on the indemnity basis.
6. The costs of the consequentials hearing were not reduced. The court declined to disallow the costs of Libson 3, although it described the document as unconventional and discouraged similar documents without clear permission. A payment on account was ordered under Civil Procedure Rules 1998, r 44.2(8), calculated at 80% of the recoverable costs.
7. The court held that the authorities concerning means and proportionality in contempt cases involving Convention rights did not establish a general rule that the contemnor’s means affect the reasonableness or proportionality of costs in a contempt arising from interference with an injunction.