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A senior City partner who told a client to “burn” a private messaging app after it was served with a search order should face a hearing for contempt of court, the Court of Appeal has ruled.
It overturned a decision of Mr Justice Marcus Smith that there was not a prima facie case to apply Raymond McKeeve, at the time a partner at Jones Day, for committal.
The court said the judge’s approach would encourage parties to destroy documents so they could then assert that no one could say for sure what they contained.
“No court can or should readily countenance that,” said Lord Justice Davis, giving the unanimous ruling [1].
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 is a substantial underlying claim and counterclaim.
Within minutes of being notified of the order, as it was being executed, Mr McKeeve instructed his client’s IT manager to “Burn it” (his words) or “Burn all” (the manager’s).
The manager then deleted or disabled various IT accounts including one known as the 3CX account, a private messaging system. As a result, any messages sent via 3CX were irretrievable.
Mr McKeeve did not tell anyone what he had done, but the IT manager informed an assistant solicitor at Jones Day a few days later. Mr McKeeve has since apologised and referred himself to the Solicitors Regulation Authority.
Ocado alleged that Mr McKeeve’s conduct was intended to interfere with the due administration of justice.
He told the High Court that he had no idea what the search order related to or what in practice it meant.
But he 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.
“My gut reaction was to try to protect Belinda and my sole concern was to avoid having my wife dragged into a potentially embarrassing, high-profile investigation, where her name had been used without her consent and without her knowledge,” he said.
“I was concerned about the reputational harm it could cause her. I panicked, and in the heat of the moment committed a serious lapse of judgment, in order to do what I could to protect her.”
Mr McKeeve added that he did not think the instruction might represent a breach, saying he was a deal lawyer who had never been involved in a search order before.
Marcus Smith J held that Ocado had failed to show to his satisfaction that Mr McKeeve’s actions in fact resulted in the destruction of the types of document listed in the search order and alleged in the particulars of contempt, or that he intended to thwart the search order in this way.
Davis LJ ruled that this was “plainly wrong”, continuing: “Indeed such a conclusion would seem to set at a premium, where litigation is under way, the deliberate and irretrievable destruction of documents so that it is then asserted that no one can say for sure what they contained. No court can or should readily countenance that.”
Whether or not he acted out of concern for reputational damage to his wife, Davis LJ said there was also “a clear potential awkwardness, to put it at its very lowest, for Mr McKeeve personally”.
He said: “He had allowed himself, as a solicitor, to be made party to a covert communication system which, by design, included as a member a very senior employee of his clients’ principal competitor (a matter on which, as his own evidence shows and as the evidence of [the IT manager] also shows, Mr McKeeve at the time was sensitive and had ‘reservations’).”
In any event, the solicitor’s explanation went only to motive – he still intentionally caused potentially relevant documents to be destroyed.
“Indeed, he must have so appreciated – why else cause them to be destroyed? The answer has to be, as a matter of inference at this stage, to prevent them from coming under investigation by Ocado.
“I therefore simply do not agree that the inference that relevant documents existed on the 3CX system was ‘fragile’, as the judge put it.”
Davis LJ added that he considered the evidence indicated that relevant documents were indeed destroyed.
The committal application was in the public interest and permission for it should be granted, he said.
But he adjourned the substantive application to the trial judge. “Given all the allegations and cross-allegations being made, I in fact cannot conceive how this committal application could fairly or properly be dealt with prior to trial.
“As to that, we were told that the trial is currently scheduled to take place in the first part of 2022.”