Interlocutory orders and contempt – the “burn it” judgment

I will readily admit that I have not read closely the 278 paragraphs in the judgment of Mr Justice Adam Johnson in Ocado Group Plc & Anor v McKeeve [2022] EWHC 2079 (Ch) (03 August 2022) – the “burn it” contempt case. I do not think that you need to do so either. It is enough to get the overall message that interfering with documents in civil litigation can have consequences that are very personal and not merely corporate, and potentially criminal, not merely civil.

There is a good summary of the facts in the Law Society Gazette of 3 August under the title City lawyer found in contempt over ‘burn it’ instruction. The judgment itself is here. The main action was concluded, and the sole subject was Mr McKeeve’s alleged contempt in the context of those proceedings.

The “burn it” story appears from paragraph 8:

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.

One of the themes which recurs in judgments about alleged discovery / disclosure defects is the character of a witness as it appears to the judge, particularly under cross-examination (I wrote about this in one of my articles on the Vardy v Rooney case , and will not cover the same ground again). In short, a judge’s conclusion will inevitably be coloured, and rightly so, by the impression given by the witness. Paragraph 18 of the McKeeve judgment covers this ground. McKeeve’s recollection of events may have become “distorted”, the judge says.

The findings as to contempt begin at paragraph 260 under the heading “Are the grounds of contempt made out?”. Five separate grounds of contempt arise, and phrases like:

I am not persuaded beyond a reasonable doubt that Mr McKeeve intentionally sought to destroy documents relevant to Ocado’s claim. On the facts, an intention in that form would have required greater knowledge than Mr McKeeve in fact had of what Ocado’s claim was actually about.

…and…

McKeeve did not know about them and so cannot have intended to destroy them.

….sufficed to see off the first four grounds. That left ground 5, with the question (at the end of paragraph 272):

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)?

The conclusion (in paragraph 275) is:

As a result of Mr McKeeve’s intervention, [the Electronic Data Storage Device as defined in the Search Order] was destroyed and so was not available to be imaged or searched as it should have been….That, in my judgment, was a sufficiently serious interference with the due administration of justice for the actus reus to be made out.

What is “the due administration of justice” with which one must not interfere? At paragraph 276), the judge said this:

It was also argued that Mr McKeeve did not intend to interfere with the administration of justice, because his intention was never to interfere with the ultimate resolution of the dispute between Ocado and the Defendants in the Underlying Action. He did not think there was anything relevant on the 3CX App which would make any difference to that ultimate outcome. To my mind, however, this relies on too narrow a conception of what is meant by the due administration of justice. It not only encompasses the eventual outcome of a dispute or trial being compromised. It also encompasses the principle that the purpose of interlocutory orders made by the Court pending trial should not be undermined. All of the cases cited above starting at [134], some of them of the highest authority, support that proposition. Sadly, for the reasons I have explained, that is just what happened here.

This is the heart of it – “the purpose of interlocutory orders made by the Court pending trial should not be undermined”. An order of this kind is designed to hold the position pending further investigation and, perhaps, proceedings. Complying with it involves no decisions beyond “Might doing this be in breach of the order?”. Before the judgment in the Rooney case, when it was still unclear whether that phone had fallen into the North Sea or been dropped, I said that:

if my phone was the subject of a recent order for examination, I’d wrap it in cotton wool, lock it in a box, and deliver it personally to the lawyers, not take it yachting.

If in doubt about the scope of an order, assume it is as wide as it could be. If asked about a data device, whether you are a solicitor or not, the default answer must be “keep it”, not “burn it”.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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