Delivery Failure: Conspiracy, Contempt and Professional Responsibilities

Over the last two decades, the way in which we shop has been radically transformed by e-commerce.

The ability to buy produce of all kinds from our computers or smartphones and then have it delivered where and when we want has been a fabulous convenience.

However, the benefits have not been limited to consumers.

Those businessmen and women able to create successful online retail enterprises have become billionaires almost overnight.

In recent years, groceries have been one of the most keenly contested sectors.

Although the UK's major supermarket chains have built upon our familiarity with their "bricks and mortar" outlets to amass a large share of available sales, they have been challenged by relative newcomers, such as Ocado.

Rather than a history stretching back generations, it was only founded in 2000 and made early inroads thanks to its relationship with Waitrose.

However, the period which saw the end of that partnership and the start of a joint venture with Marks & Spencer has now led to High Court judge Mr Justice Adam Johnson delivering a ruling which will have impact not just for the retail industry but the legal profession too (https://www.judiciary.uk/judgments/contempt-of-court-judgment-ocado-group-plc-and-ocado-central-services-limited-v-mckeeve/).

He has found a solicitor, Raymond McKeeve, in contempt of court for his role in frustrating an investigation into the leaking of confidential information by an Ocado employee to one of its commercial rivals.

Mr McKeeve, who worked for the US law firm Jones Day, was advising Today Development Partners, a company set up by one of Ocado's co-founder, Jonathan Faiman, after he left that business.

Mr Faiman had been in discussions about handling home food deliveries for M&S before it decided to go with Ocado instead.

Ocado subsequently accused Mr Faiman of obtaining and misusing confidential information during his negotiations with M&S and, in July 2019, succeeded in obtaining a search order to determine what documents he might have had access to.

During contempt proceedings brought by Ocado, the High Court was told that Mr McKeeve had instructed an IT manager at Today to dispose - or, as he put it, "burn" - material circulated on the company's secure communications system to prevent it being disclosed as it should have been under the search order.

His actions amounted to an incredibly poor error of judgement which, in my opinion, rightly merited Ocado's legal action and Mr Justice Johnson's scathing assessment.

He concluded that Mr McKeeve had "acted with the precise intention of preventing" potentially compromising material being uncovered.

It was, said the judge, not only a "spontaneous act of colossal stupidity" but a "serious interference with administration of justice".

That was because what Mr McKeeve had done was more than simply a case of someone digging in their heels and trying to frustrate a process of disclosure.

Even though he maintained that he had not been able to read the search order at the time, the judge described how, as "an intelligent and capable man" - even one who found himself in a stressful situation - he should have appreciated its significance.

Mr Justice Johnson explained that the experience had already taken a "heavy toll personally and professionally" on Mr McKeeve.

The consequences could even more grave as a decision is still to be taken as to the appropriate sanction. A finding of contempt of court can result in a term of imprisonment.

Whether or not that happens, the High Court case should come as a timely reminder to solicitors whatever their specialism of the need to adhere rigorously to the rules which govern the work that they - we - do.

There is no possibility of misinterpretation as those rules are explicit.

The principles set out by our profession's regulator - the Solicitor Regulation Authority (SRA) - make clear that solicitors should act "in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice" (https://www.sra.org.uk/solicitors/standards-regulations/principles/.).

Furthermore, the SRA also underlines the absolute importance of behaving "with honesty...integrity" and upholding "public trust and confidence" in the work that we all do.

Telling someone to destroy material in the face of a search order falls well short of what the SRA, the public and our clients would expect.

It is true that a career in the law carries with it pressure which can often be intense.

We are entrusted with advising companies and individuals on matters which have great personal and financial weight.

Yet we should never lose sight of the fact that working in this industry is a privilege which shouldn't be taken for granted.

Any temptation to take ourselves too seriously - and avoid being regarded as having the "degree of arrogance" detected in Mr McKeeve by a High Court judge - should be kept in check.

That can, in part, be addressed by establishing a constructive workplace culture in which people feel comfortable in asking colleagues for advice rather than making split-second decisions alone and without thought for the possible consequences.

In addition, regular training is important as a reminder as much of professional obligations as new case law or regulations.

I would argue that it is in the interests of firms as well as individual lawyers to press for that to happen.

As Mr McKeeve has discovered, failing to live up to those expectations can have considerable ramifications.

Over the years, I have acted on behalf of a number of lawyers and men and women in other professions who have also found themselves the subject of regulatory investigation.

It is a stressful process and can end up with the loss of a career and livelihood as well as reputational damage for the firms which have employed them.

No matter the internal or external pressures, every lawyer asked to do something which they might regret should reflect on just one question: "is it worth it?"

As Mr McKeeve would no doubt acknowledge, the answer should always be "no".