Out-Law News | 24 Feb 2021 | 9:37 am | 3 min. read
The Court of Appeal of England and Wales has upheld an application to commit a solicitor for contempt of court after he instructed his clients’ IT manager to delete or disable electronic applications and accounts that were subject to a search order.
The case examined the breadth of what constitutes a ‘document’ for the purposes of disclosure orders in litigation and the risks which need to be navigated when executing or on the receiving end of a search order. The court found that the apps and accounts deleted or suspended were subject to the search order, and that the deleted messages on one application in particular were irretrievable.
The Court of Appeal ruled that there was a strong case that documentation had been destroyed with a view to making it unavailable for disclosure.
Civil fraud expert Andrew Herring of Pinsent Masons, the law firm behind Out-Law, said: “The destruction of potentially relevant evidence is a very serious matter particularly if, as it was found in this case, the deletion was intentional."
“Now that the majority of evidence in civil litigation is made up of electronically stored information, evidence destruction will almost inevitably come to light during the litigation with serious consequences for those involved; and not just for the named parties to the litigation. In this case, the misconduct by a solicitor was so serious as to amount to a contempt of court,” Herring said.
“The courts have quite rightly shown that they will not tolerate misconduct in this area. This case ought to be a salutary warning to any litigation parties who think they can destroy evidence and get away with it,” Herring said.
The application to commit solicitor Raymond McKeeve for contempt was brought by online supermarket chain Ocado. Ocado believed that confidential information had been misappropriated by a former executive who had moved to a potential rival.
In 2019 Ocado applied for a search of premises and preservation of evidence order, and injunctions restraining the use of confidential information relating to its business. On the day the search order was executed, McKeeve told the IT manager for his clients to “burn” an app that had been used for private messaging.
Although the High Court had found the app and the messages sent on it did not count as a document, the Court of Appeal said both the app and messages on it were “documentary material” and subject to the search order.
At the original hearing on the committal application, the High Court ruled Ocado had not established a prima facie case for contempt of court. The judge said he could also not be satisfied that making an application for committal would be in the public interest.
The Court of Appeal disagreed with both of these points, and remitted the committal application for contempt to the trial judge handling the primary dispute between the parties.
Dispute resolution expert Nicola Seymour of Pinsent Masons said it was important to be aware of what constitutes a “document” for the purposes of disclosure in English civil litigation and other orders, such as search orders.
“The term ‘documents’ comprises much more than just emails and hard copy documents, essentially covering anything on which information is stored, including communications on messaging apps and collaboration platforms, amongst many other sources. It also includes deleted data and document meta-data,” Seymour said.
“The fact that a lawyer in this case claimed not to appreciate that data on a messaging app could be construed as a document demonstrates that this point is still not always well understood. Businesses should be aware of how wide the definition of a ‘document’ is in order to make sure they comply with their potential disclosure obligations for documents in the context of litigation,” Seymour said.
Seymour said the case also demonstrated the importance of both executing and responding to search orders correctly, and the potentially severe consequences if appropriate procedures are not followed, such as potential proceedings for contempt of court.
“One of the pitfalls to navigate include ensuring the appropriate individuals are present for the search, for example anyone with a personal or commercial interest in anything that may be on the searched premises should not attend – which often includes the applicant – and if the recipient of the search order is female, there must be at least one woman in the search team,” Seymour said.
Seymour said contempt of court applications were relatively rare due to the high threshold to meet for success. She said the Court of Appeal decision in this case, finding the application was in the public interest, highlighted the importance of carefully crafting such applications to try and get the desired outcome first time around.
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