Ocado Group Plc v Raymond McKeeve
| Jurisdiction | England & Wales |
| Judge | Mr Justice Adam Johnson |
| Judgment Date | 03 August 2022 |
| Neutral Citation | [2022] EWHC 2079 (Ch) |
| Docket Number | Case No: BL-2019-001768 |
| Court | Chancery Division |
| Year | 2022 |
[2022] EWHC 2079 (Ch)
Mr Justice Adam Johnson
Case No: BL-2019-001768
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
7 Rolls Buildings
Fetter Lane, London
EC4A 1NL
David Cavender QC and Alexander Brown (instructed by Mishcon de Reya LLP) for the Claimants
Robert Weekes QC and Gayatri Sarathy (instructed by Foot Anstey LLP) for the Defendant
Hearing dates: 28, 29, 30 June 2022, 1 and 4 July 2022
Approved Judgment
The date and time for hand-down is deemed to be 10.30am on Wednesday 3 August 2022.
CONTENTS
| Paragraph | |
| The Trial and the Witnesses | 16 |
| Relevant Background | 19 |
| Beginnings of the Today Business | 20 |
| Mr Hillary is involved | 21 |
| The KPI Document | 23 |
| Incorporation of Project Today Holdings | 25 |
| M&S Meeting on 12 September 2018 | 26 |
| The Waddilove Note | 29 |
| Ocado sign deal with M&S | 33 |
| Today & Waitrose: Discussions with Mr Hillary | 35 |
| Mr Henery trials VoIP Applications | 40 |
| Mr Hillary Resigns from Ocado | 45 |
| 3CX | 47 |
| “ Transferring Comms” and Mr Hillary's Pseudonym | 49 |
| Mr Hillary's Email Account and other Matters | 52 |
| Mr McKeeve's Concerns | 57 |
| Mr Hillary's use of the 3CX App | 58 |
| Mr Hillary's Pseudonym Changes | 59 |
| Mr Hillary's Email Account is Suspended | 62 |
| Mr Byron and Ms Merriott | 65 |
| Discussions on 3 July 2019 | 66 |
| The Slushminers Accounts | 71 |
| The Search Order | 73 |
| Service of the Search Order on Mr Faiman | 83 |
| Mr McKeeve's Message to Mr Henery | 88 |
| Mr Henery Reacts | 92 |
| Execution of the Search Order at the Connaught Hotel | 95 |
| Service on Mr Hillary and at the Foundry | 102 |
| Documents located at the offices of Jones Day | 106 |
| The 3CX App is Revealed | 107 |
| The Underlying Action | 109 |
| The Present Action | 116 |
| The Grounds of Contempt | 124 |
| The Law of Criminal Contempt | 131 |
| Matters of Common Ground | 131 |
| Grounds 3, 4 and 5: Frustrating the purpose of an Order of the Court | 134 |
| Z Ltd v. A-Z and AA-LL | 136 |
| Attorney-General v. Times Newspapers (“Spycatcher”) | 146 |
| 156 | |
| Attorney-General v. Punch | 160 |
| Disputed Facts | 167 |
| What was the purpose of the 3CX App? | 169 |
| What was on the 3CX App? | 182 |
| What was the 3CX App used for? | 183 |
| Did the 3CX App include documents relevant to the claim or Listed Items? | 192 |
| What was Mr McKeeve's state of mind when he sent the “ burn it” or “ burn all” message? | 218 |
| Was there a pre-arranged plan to delete the 3CX App? | 219 |
| What was the immediate background to the deletion instruction? | 225 |
| What was Mr McKeeve's motive? | 234 |
| What was Mr McKeeve's instruction to Mr Henery? | 239 |
| Was Mr McKeeve aware of the status of 3CX as a “burner box”? | 241 |
| What factors are relevant to determining Mr McKeeve's intention? | 243 |
| What was Mr McKeeve's intention? | 245 |
| What of Mr Henery? | 255 |
| What did Mr McKeeve know about the contents of the 3CX App? | 257 |
| Are the Grounds of Contempt made out? | 260 |
| Ground 1: Did the Defendant intentionally interfere with the due administration of justice by intentionally causing the destruction of documentary material (in the form of the 3CX application and the email accounts as set out in the affidavit of James Libson and the material contained therein) which was of relevance to the claim by the Claimants against Mr Faiman, Today and Mr Hillary? | 262 |
| Actus reus | 262 |
| Mens rea | 263 |
| Ground 4: Did the Defendant intentionally interfere with the due administration of justice by intentionally causing the destruction of information which constitutes “ Confidential Information” within Schedule C of the Search order? | 264 |
| Actus reus | 266 |
| Mens rea | 267 |
| Ground 3: Did the Defendant intentionally interfere with the due administration of justice by intentionally causing the destruction of documents which constituted a “ Listed Item” within Schedule C of the Search Order | 268 |
| Actus reus | 271 |
| Mens rea | 272 |
| Ground 5: Did the Defendant intentionally interfere with the due administration of justice by intentionally causing the destruction of documentary material (in the form of the 3CX System and the email accounts as set out in the affidavit of Mr James Libson, and the material contained therein) stored on Electronic Data Storage Devices (as defined in the Search Order)? | 273 |
| Actus reus | 275 |
| Mens rea | 276 |
| Overall Conclusions | 277 |
By this Part 8 Claim the Claimants (“ Ocado”) seek findings of contempt of Court against the Defendant, Raymond McKeeve (“ Mr McKeeve”). At the times relevant to this action Mr McKeeve was a senior solicitor and a partner in Jones Day LLP, the well-known law firm. His expertise was in the field of private equity. In his own words, he was a transactional “ deal lawyer”.
Ocado is a well-known online-only supermarket and licences its technology platform for online grocery to other supermarkets. Two of the founders of Ocado were Mr Tim Steiner (“ Mr Steiner”) and Mr Jonathan Faiman (“ Mr Faiman”). Mr Faiman left the business in 2010.
For a long time, Ocado had a successful commercial relationship with the supermarket chain Waitrose. By 2018, however, Marks & Spencer (“ M&S”) were also looking to enter into the online grocery arena.
Mr Faiman set up a new entity, Project Today Holdings Limited (“ Today”). He held discussions with M&S. At the time, Mr Faiman was in contact with a senior employee of Ocado, Mr Jonathan Hillary (“ Mr Hillary”). Mr McKeeve was an adviser to Mr Faiman and Today in connection with the possible M&S deal.
In the end, Today's discussions with M&S did not bear fruit. Instead, M&S entered into an arrangement with Ocado in February 2019.
Mr Faiman and Today, however, then sought to enter into an arrangement with Waitrose. Mr Faiman remained in contact with Mr Hillary in connection with the proposed Waitrose transaction. Mr McKeeve continued to advise. Discussions with Waitrose proceeded constructively, and on 15 May 2019, Mr Hillary resigned from his position at Ocado for a new role with Today. On 16 May 2019, Waitrose announced a new commercial relationship with Today. On 23 May, Mr Hillary was placed on gardening leave by Ocado. He remained an Ocado employee.
Ocado came to be concerned about Mr Hillary's activities in communicating with Mr Faiman. They suspected he had handed over confidential information and/or had been working for Today while still employed by Ocado, in breach of his contract of employment.
On 3 July 2019, Ocado obtained from Fancourt J an “ Order for Search of Premises and the Preservation of Evidence” (the “ Search Order”). The Search Order was in support of proceedings by Ocado against Mr Faiman, Today and Mr Hillary (the “ Underlying Action”).
The Search Order was executed on 4 July 2019, both at the Connaught Hotel in London (where Mr Faiman was based) and at Mr Hillary's home. A further Search Order in practically identical form was granted on the morning of 4 July by Fancourt J, which authorised a separate search of Today's new office premises, known as the Foundry.
Shortly after the Search Order was served on Mr Faiman at the Connaught Hotel, Mr Faiman contacted Mr McKeeve by telephone. Mr Faiman spoke to him briefly and so did the Supervising Solicitor present at the Connaught Hotel, Mr de Jongh.
Very shortly after that, Mr McKeeve sent a message via an application (the “ 3CX App”) which had been installed on his telephone by Mr Martin Henery (“ Mr Henery”), Today's IT manager. Others within Today also had 3CX accounts, including Mr Hillary.
Mr McKeeve's message was sent to Mr Henery. It is common ground that the message said either “ burn it” or “ burn all”. Mr McKeeve then spoke to Mr Henery. The upshot was that Mr Henery deleted the 3CX App and all of its contents. It was irretrievably destroyed.
It is clear that at the time he sent his instruction to Mr Henery, Mr McKeeve had not seen the Search Order. He had only had his discussion with Mr Faiman and his discussion with the Supervising Solicitor, Mr de Jongh. Mr McKeeve was in any event not a Respondent to the Search Order. He was a third party.
Thus, the present action is not brought as an action in civil contempt. It is not said that Mr McKeeve was himself in breach of the Search Order as a Respondent to it, who had been served with it. Instead, the Claimants seek findings of criminal contempt against Mr McKeeve. Their complaint is that he intentionally interfered with the due administration of justice, in two ways:
i) By intentionally causing the deletion of documentary materials relevant to the Underlying Action brought by Ocado, in support of which the Search Order had been obtained.
ii) By intentionally taking steps which thwarted the purpose of the Search Order.
It will be critical to examine the precise Grounds of Contempt relied on. I set these out below at [124]. To begin with, however, I will make some brief comments about the trial and the evidence before me. I will then set out a more detailed summary of the background facts, many of which are undisputed. I will then examine the legal principles relevant to criminal contempt, before setting out my conclusions on the material factual issues which are disputed, and finally I will set out my conclusions on the individual Grounds of Contempt.
The Trial and the Witnesses
At trial the Claimants relied on the following factual evidence:
i) Certain parts of the First and Fourth Affidavits of Mr Neill Abrams, sworn in connection with the Underlying Action. Mr Abrams...
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