High price for lawyer found in contempt of court over “burn” instruction
This article was originally published on Thomson Reuters Practical Law Dispute Resolution blog, February 2023.
This article was co-authored by Sally Milner, Trainee Solicitor, Manchester.
The serious consequences of interfering with litigation documents were highlighted in the recent ruling concerning a senior lawyer who told a client to “burn” its secure communications system to avoid handing evidence to supermarket Ocado.
The case of Ocado Group plc v McKeeve is a contempt action, arising out of an earlier, underlying action between Ocado and three different defendants, namely Today Development Partners (TDP), its founder and Ocado co-founder Jonathan Faiman and another former Ocado employee, Jon Hillary. A search order had been made against both men in support of the underlying action, which saw Ocado allege misuse of confidential information and breach of contract. The underlying action settled last year.
In February 2021, the Court of Appeal held that Ocado had a strong prima facie case that Mr Raymond McKeeve, ex-partner at Jones Day LLP, had intentionally interfered with the administration of justice by telling an IT manager at TDP to “burn” records relating to the underlying action.
A judgment handed down in the High Court in August 2022 found Mr McKeeve liable of criminal contempt, for which he has now been fined £25,000 and ordered to pay a significant proportion of Ocado’s trial costs.
Criminal contempt of court
Contempt of court can be either civil or criminal in nature. The distinction between civil and criminal contempt depends on the nature of the conduct.
Civil contempt is conduct that is not in itself criminal, but is punishable by the court, such as an intentional act in breach of a court order by a party to proceedings.
Criminal contempt of court is defined in common law as “an act or omission calculated to interfere with the due administration of justice”, conduct which goes beyond mere non-compliance with a court order and involves a serious interference with the administration of justice. Allegations of contempt, whether civil or criminal, must be proved to the criminal standard.
The actus reus of criminal contempt should be evidenced by an act or omission which creates a real risk of prejudice to the administration of justice. The mens rea is contingent on proof of a specific intention to interfere with the administration of justice albeit it is not necessary that the proceedings have actually been prejudiced.
On indictment, criminal contempt is punishable by up to two years’ imprisonment, an unlimited fine, or both.
Ocado sought findings of criminal contempt that Mr McKeeve intentionally interfered with the due administration of justice by:
- Intentionally causing the deletion of documentary materials relevant to the underlying action.
- Intentionally taking steps which thwarted the purpose of the search order.
In a judgment handed down on 3 August 2022, Johnson J determined that Mr McKeeve was liable for criminal contempt, having frustrated one of the purposes of the search order through his act in causing the destruction of a data source known as the 3CX app.
Though Johnson J was not persuaded beyond reasonable doubt that Mr McKeeve had intentionally sought to destroy documents relevant to Ocado’s claim, he found that Mr McKeeve’s intervention was a sufficiently serious interference with the due administration of justice for the actus reus of criminal contempt to be made out, and that Mr McKeeve’s intention was to prevent the 3CX app being searched.
Issues of sanction and costs
Johnson J handed down his judgment relating to questions of sanction and costs on 5 October 2022.
In determining an appropriate sanction, Johnson J considered the “recommended approach” to sentencing for criminal contempt, which requires the court to assess the seriousness of the conduct by reference to the offender’s culpability and harm to determine whether the seriousness justifies a custodial sentence or the imposition of a fine.
In considering seriousness, Johnson J found:
- Although the initial “burn it” instruction was given under pressure of time and without careful thought, Mr McKeeve had the opportunity of reflecting on his actions as the process of executing the search order unfolded.
- The deliberate destruction of documents falling within the scope of a search order is self-evidently a serious matter which should attract a high degree of culpability, and in particular in a case where the destruction is at the hands of a solicitor, an individual whose role as an officer of the court involves upholding the rule of law.
- Mr McKeeve did exactly the opposite of what his role and his professional duties required, his actions were highly culpable and merited the sanction of the court.
The judge described Mr McKeeve’s actions as a “serious matter” but did not consider them to warrant a custodial sentence. Although Mr McKeeve’s intention was to prevent the 3CX app being searched, he did not act as part of a pre-arranged plan to destroy relevant documents or consider anything on the app to be that important.
Johnson J determined the appropriate sanction to be a fine of £25,000 after considering personal mitigation emphasised on Mr McKeeve’s behalf, in particular, the severe effect the allegations had upon Mr McKeeve’s professional and private life. Johnson J ruled Ocado should be entitled to recover 60% of its trial costs, of which Mr McKeeve must pay 80%.
The case highlights the serious and potentially criminal consequences of interfering with documents in civil litigation. As officers of the court, legal professionals (whose conduct will be scrutinised more so than members of the public) will be reminded of the importance of advising clients to retain all documents pertaining to any legal dispute, along with the potentially long-lasting personal and reputational effects upon those who fail in their duty to uphold the administration of justice.