Ocado: Solicitor’s conduct did not affect underlying claim
A senior City partner who told a client to “burn” a private messaging app after it was served with a search order has avoided jail for criminal contempt of court.
Counsel for Raymond McKeeve told the High Court that the case had had a “devastating effect” on him both professionally and personally, including losing his partnership at Jones Day.
Deciding instead to fine the solicitor £25,000, Mr Justice Adam Johnson said he had felt a “strong initial impulse” towards imposing a custodial sentence, “but on more considered analysis, I find the decision a more balanced one in the very particular circumstances of this case”.
Mr McKeeve was acting for a company, Today Development Partners (TDP), set up by one of the founders of Ocado and that was trying to get Marks & Spencer’s grocery delivery business.
The high street giant went instead with Ocado, which then became aware of events behind the scenes and believed TDP had misappropriated its confidential information. Ocado obtained a search of premises and preservation of evidence order.
There was a substantial underlying action which has now settled in Ocado’s favour.
Within minutes of being notified of the order, as it was being executed, Mr McKeeve instructed his client’s IT manager to “Burn it”. The manager then deleted or disabled various IT accounts including one known as the 3CX app, a private messaging system. As a result, any messages sent via 3CX were irretrievable.
He told the court at the contempt hearing that he had no idea what the search order related to or what in practice it meant but was “immediately concerned” about the fact the name of his wife – the at the time newly elected Brexit Party MEP Belinda de Luce – had been used on 3CX as an alias for a senior Ocado employee who had helped TDP and was on gardening leave ahead of joining it.
In deciding sanction, this week, Johnson J said the factors he took into account included his earlier finding that the ‘burn it’ instruction was a “spontaneous act of colossal stupidity”, that Mr McKeeve did not think he was doing anything which would interfere with the outcome of the underlying action and did not intend to do so – and indeed that it did not.
The judge also noted that Mr McKeeve “plainly accepts the seriousness of his actions, has apologised for them and has sincerely expressed his shame and embarrassment about what he did”.
But he rejected his counsel’s argument that the effect of the case on Mr McKeeve, including the publicity, meant no further action was needed.
“At the forefront of my mind… is the fact that Mr McKeeve is a solicitor,” said Johnson J. “In that role he has a particular function and a particular responsibility in the due administration of justice…
“Although the circumstances of this case are highly unusual, and although I accept he acted impulsively, the fact is that he did exactly the opposite of what was properly to be expected of him.
“He deliberately interfered with the purpose of the search order by procuring the destruction of a data source which that order required to be searched. That is self-evidently a serious matter and merits the sanction of the court.”
At the same time, the impact on the solicitor weighed against a custodial sentence as a deterrent: “It seems to me one must make an allowance for the likely deterrent effect of the situation Mr McKeeve has already found himself in…
“Among other matters, his previous position as a respected and successful practitioner has been severely compromised and his reputation is indelibly tarnished. He is now the subject of a judgment making an express finding of contempt against him. It is naïve to think that such a combination of factors will not also have a deterrent effect on other legal professionals.”
Johnson J set the fine at £25,000 after ordering that Ocado should recover 60% of the costs up to the present hearing – for which it has claimed £1.1m – reflecting the fact that the court had dismissed three of the four grounds for contempt that it had put forward. He made no similar reduction for the costs of the hearing, for which Ocado has sought £107,000.
The judge ordered the solicitor to pay £610,000 on account of costs. Mr McKeeve has spent around £615,000 on his defence.
Mr McKeeve has referred himself to the Solicitors Regulation Authority.
Deborah Ruff, head of international arbitration in the London office of Pillsbury Winthrop Shaw Pittman, commented: “This case should serve as a reminder to all lawyers of the importance of complying with – and urging their clients to have in place and comply with – document retention policies, as well as regulations and legislation governing document retention.
“Businesses must also have suitable and robust document creation, circulation and retention policies in place.
“In the age of emails and instant messaging services, it is very easy to say things with no thought of them being read and used in a court of law. It’s equally easy to forget the duty to preserve them when a dispute is in prospect or underway or the penalties and reputational damage if they are destroyed or not disclosed when this is obligatory.
“Doing so could have very serious consequences… Mr McKeeve will be breathing a huge sigh of relief that a custodial sentence wasn’t handed down.”
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