Statement in Response to Mr Justice Marcus Smith’s Judgement

Ocado responds to High Court decision on application for committal for interference with the due administration of justice (a criminal contempt).

• Solicitor Raymond McKeeve admitted that he ordered the destruction of documents immediately after being made aware of a Search Order and Claim against his client who possessed information unlawfully obtained from Ocado
• High Court refused application for his committal
• Ocado will appeal the judgment, which it described as “surprising and disappointing”

Ocado is suing Jonathan Faiman, Jon Hillary and Today Development Partners (Today) for misappropriation of its confidential information and intellectual property, and has taken action to recover this information and assess the full extent to which it has been misused.

Hillary, at the time a senior employee of Ocado, has admitted in his Defence that he provided confidential Ocado documents to Faiman and to his lawyer, Raymond McKeeve, for use by Today. Hillary has admitted to breaching his employment contract and duties of confidentiality owed to Ocado. He has separately repaid to Ocado over £400,000 of clawed back bonuses and incentives.

In July 2019, Ocado obtained a Search Order from the High Court. Such an order is only given after presentation to the court of an extremely strong prima facie case and is intended to prevent the destruction of documents and other evidence. The Order specified sanctions, including imprisonment, for failure to comply with it.

The Search Order was served on 4 July 2019 on Faiman by a supervising solicitor who was independent of Ocado.

Upon being served with the Search Order, Faiman contacted his solicitor McKeeve, a partner at Jones Day and friend of Faiman. McKeeve spoke to both Faiman and the supervising solicitor, who explained the situation.

Immediately after this call, McKeeve messaged Martin Henery, the Today employee responsible for IT matters and instructed him to destroy a secure confidential messaging system known as 3CX (writing only “burn it” or "burn all"). McKeeve was so anxious to destroy the system that he also telephoned Henery to explain what he intended by “burn”.

Henery duly destroyed the 3CX system and also deleted a number of Today-related email accounts that were registered under pseudonyms, including one belonging to Mr Hillary. This came to light approx. 12 days later, when Henery disclosed the events, after which McKeeve admitted his actions.

These are all uncontested facts.

Because the system was irretrievably destroyed, Ocado cannot know what evidence was on 3CX. The contents of the email accounts have been recovered but have not been made available to Ocado as a result of the terms of the Search Order, so were not used as evidence in this case.

McKeeve admitted ordering the destruction of documents after he had learned of the Search Order. He has referred himself to the Solicitors Regulation Authority. Ocado believed (and still believes) that McKeeve was in contempt of court and applied for permission to bring this to trial as a separate case, distinct from the litigation against Faiman, Hillary and Today.

On 11 June 2020, the judge found against Ocado on narrow and technical grounds relating to the way the claim was framed. In particular, the Judge found that Ocado would not be able to prove the documents that McKeeve destroyed were relevant to the litigation because they had been permanently deleted and their contents were therefore unknown. This does not affect the undisputed fact that McKeeve ordered the destruction himself.

What makes this so grave is that McKeeve was a practicing solicitor and partner at a leading law firm at the time he intentionally ordered the destruction of documents on hearing that a Search Order had been made against his client. It would, in Ocado's view, plainly be in the interests of justice for committal proceedings to be allowed to proceed against such an individual. Ocado will therefore appeal the judgment.

Ocado relishes fair competition but will vigorously protect its confidential information and IP, which has been developed over 20 years, and is licensed under contract to supermarkets around the world. Ocado will challenge any individual or organisation that uses information stolen from it, either directly or indirectly.

Since this litigation, Faiman and Hillary have formed a new company called T0day, apparently continuing the same business.

Ocado's litigation against Faiman and Hillary is unaffected by this judgment and continues.