A senior lawyer “panicked” and committed a “serious lapse of judgment” when he told his client to “burn” its secure messaging system to avoid handing over evidence to supermarket group Ocado, a court heard on Tuesday.
Raymond McKeeve, a former partner at Jones Day, the US legal firm, has been accused of contempt of court for seeking to destroy messages at a company set up by one of Ocado’s co-founders despite an order to preserve evidence obtained as part of a corporate espionage probe.
McKeeve was advising Today Development Partners, which was set up by Ocado’s former co-founder Jonathan Faiman.
The online supermarket accused Faiman of a conspiracy to misappropriate and misuse its confidential information along with another former Ocado employee, Jon Hillary, in a legal spat that was settled last year. Ocado alleged Hillary had stolen corporate information, and obtained a search order against both men in 2019.
Faiman had filed a counterclaim against Ocado, describing claims of corporate espionage as “ludicrous” and alleging that the search warrant against him and Hillary was wrongly obtained. However, he withdrew the action last year.
Following the search order, McKeeve contacted TDP’s IT manager telling him to “burn” a private communications system used by Faiman, Hillary, McKeeve and others — a message the lawyer later confessed to sending.
Ocado failed in a first application to commit McKeeve for contempt of court at the High Court in 2020. But the Court of Appeal overturned that decision last year and allowed the case to proceed. Contempt can be a criminal offence potentially punishable by prison.
Re-opening Ocado’s case on Tuesday, barrister David Cavender QC said “an allegation of criminal contempt against a senior solicitor and officer of the court is a matter of utmost seriousness”.
McKeeve had “acted intentionally” in issuing his “burn instruction”, Cavender said, and was aware that this would destroy evidence relevant to Ocado’s corporate espionage probe.
In court filings, McKeeve has admitted to sending the instruction to destroy the app, but said it was an attempt to protect his wife Belinda de Lucy, a former MEP for the Brexit party.
TDP had been using her name as a pseudonym for Hillary, who was on gardening leave from Ocado and using the private communications system to speak to TDP, according to filings from both parties.
McKeeve’s barrister Robert Weekes QC told the court on Tuesday that the ex-Jones Day lawyer wished to “apologise sincerely to the court and to Ocado for the serious mistake” but that his actions were borne out of a desire to protect his wife.
In court filings, McKeeve said there was no confidential information on the communications system, which was mainly used for phone calls.
In an affidavit written by McKeeve on July 17 2019 and read to the court, McKeeve said it “did not occur to me that it was . . . inappropriate to delete the [system] in response to the search order.
“ . . . My gut reaction was to try to protect Belinda and my sole concern was to avoid having my wife dragged through a potentially embarrassing high-profile investigation where her name had been used without her consent,” he wrote.
Weekes said that “whilst [the action] was a serious lapse of judgment [it] did not constitute [a] criminal offence”.
Cavender argued that, “whatever his motive”, McKeeve had interfered with the administration of justice by causing documents to be deleted that were relevant to Ocado’s espionage investigation.
McKeeve had also intended to thwart the “due administration of justice”, he said, by setting out to foil the search order.
The case against McKeeve continues.
