Ocado v. McKeeve: a catch-22 stemming from document destruction?
In a recent judgment (together with a supplemental judgment), the High Court (Mr Justice Marcus Smith) dismissed an application for permission to make a criminal contempt application for alleged interference with the due administration of justice.
The application was brought by two members of the Ocado group of companies which alleged Raymond McKeeve, then a Partner at a law firm, had committed criminal contempt by destroying documents relevant to proceedings. Ocado, however, struggled to prove the relevance of the documents destroyed by Mr McKeeve as well as his intentions in destroying them.
The application arose out of ongoing proceedings brought by Ocado against several Defendants, including Jonathan Faiman and his business, Project Today Holdings Ltd (Today), in which Ocado had served a Search and Evidence Preservation Order (Search Order) on Mr Faiman. Upon being served with the Search Order, Mr Faiman contacted Mr McKeeve, who himself contacted Martin Henery, the individual responsible for IT at Today. Through a private messaging system called 3CX, Mr McKeeve gave Mr Henery an order that read either “burn it” or “burn all”. Mr Henery then proceeded to delete the 3CX app as well as several email accounts. The 3CX messages (including Mr McKeeve’s destruction order) were irretrievably destroyed. The email accounts were digitally recovered but as they were still being reviewed as part of the ongoing disclosure process, they were unavailable to Ocado at the time of its application.
The application and criminal contempt standard
In its Particulars of Contempt, Ocado argued that Mr McKeeve “intentionally interfered with the due administration of justice by” causing the destruction of “documentary material which is of relevance to the claim” (ground 1) as well as “documents which constituted a ‘Listed Item’ [and/or] confidential information’ within  the Search Order” (grounds 3 and 4). Ocado abandoned a further ground 2 by the time the application was heard.
At this permission stage, Ocado had to demonstrate a prima facie case that Mr McKeeve:
- had knowledge of the Search Order
- committed the act(s) alleged in the Particulars of Contempt (actus reus)
- did so with the intent to frustrate or thwart the purpose of the Search Order (mens rea).
Proving relevance when documents are irretrievably destroyed: a catch-22?
It was undisputed that Mr McKeeve had knowledge of the Search Order. It was also undisputed that he ordered the destruction of the 3CX messages. Notwithstanding, it ultimately proved impossible for Ocado to demonstrate that Mr McKeeve committed the alleged acts. In the Court’s judgment, the problem was that Ocado made “very specific averments regarding the content of the material deleted.” The Court noted that Ocado could not prove that the 3CX messages were relevant to the claim or captured by the Search Order, because their content had been irretrievably destroyed.
The Court was unwilling to draw inferences about the content of the messages based on the users of the messaging system and the fact that Mr McKeeve ordered their destruction. The Court treated the email accounts the same as the 3CX messages because Ocado was unable to refer to their content in proving their allegations, although the Court noted that Ocado could file a separate application based on any new evidence arising following a review of those emails.
It only seems fair to wonder whether this does not impose somewhat of a Catch-22; how could Ocado have been expected to prove that the destroyed documents were relevant or captured by the Search Order when they could not be retrieved? More on this below.
Further difficulties in proving intent
Mr McKeeve asserted that he had no knowledge of the email accounts and that the 3CX messages were innocuous. According to Mr McKeeve, he ordered the destruction of the 3CX messages only because his wife’s name was used as his username in the app which might cause her embarrassment in standing in the elections for the European Parliament. The abovementioned conundrum also arose here: Ocado could not challenge this defence without showing that the messages were in fact relevant to the proceedings. As the Court put it: “the plausibility of Mr McKeeve’s case in this regard depends on showing that documents of the type alleged to have been destroyed were in fact destroyed.” Without the messages, Ocado could not do so.
In addition, the Court noted that Mr McKeeve’s limited knowledge of the Search Order caused problems for Ocado in attempting to prove intent. Mr McKeeve did not know what content was explicitly listed in the Search Order, and therefore could not have intended to delete documents specifically identified in it, as was alleged in grounds 3 and 4. As for ground 1, there was disagreement as to the extent to which Mr McKeeve knew of the underlying causes of action and issues in dispute in order to be able to determine which documents were relevant and then delete those.
On one view, in requiring evidence of the content of irretrievably destroyed documents, the Judgment imposes an unattainable threshold for demonstrating that the alleged acts were committed and that they were committed for the purpose of frustrating an order. On the other hand, mindful of this Judgment and with more careful drafting of Particulars of Contempt, applicants may still be capable of succeeding.
In this regard, the Court noted in its Judgment that the Particulars of Contempt could have been drafted differently because the Search Order protected all documents from destruction, so that they may all be reviewed for relevance. The Court noted that “[o]n this basis, it does not matter what the nature of the data was: whatever its nature it was subject to and protected by the Search Order.” This suggestion has not yet been tested and questions remain, including how the conundrum could have been avoided had the order protected only relevant documents. It appears vital that even in situations where documents are irretrievably destroyed, there remain ways in which applicants can meet their burden. Document destruction is an important issue, and individuals should not be rewarded for doing it so well that the documents can no longer be retrieved.