We look at the judge’s key findings on the use and destruction of the 3CX app.
A former Jones Day private equity solicitor has been found to be in criminal contempt of court for ordering the destruction of messaging app 3CX, intentionally interfering with the administration of justice by destroying electronic documents.
The High Court of Justice this week (3 August) handed down a judgment partly in favour of Ocado, who brought the contempt of court action against Raymond McKeeve.
In 2019, McKeeve advised a company called Project Today Holdings Limited (‘Today’), founded by former Ocado co-founder Jonathan Fairman. During the course of commercial discussions to provide online grocery services to both Waitrose and M&S, Fairman was in contact with Ocado senior employee Jonathan Hillary, leading Ocado to be concerned that Hillary had handed over confidential information. Ocado obtained a search order on 4 July 2019, including the right to search premises and for the preservation of evidence.
Shortly after the search order was served, McKeeve instructed Today’s IT manager Martin Henery to ‘burn it’ – with Henery deleting the 3CX app and all of its contents.
A claim for misuse of confidential financial information and seeking damages was issued by Ocado on 4 July 2019, and later a claim for criminal contempt of court after the destruction of C3X came to light.
In March 2019, Henery began trialling VoIP applications for Today’s business. Henery tested Easy PbX, Asterisk PBX and 3CX, selecting the latter and setting up the account in May for today. Henery created 3CX accounts for himself, Fairman, Mo Gawdat (a business associate of Fairman’s) and Hillary, who used pseudonyms.
According to court documents, Henery sent a WhatsApp to Mr Fairman saying: ““Jon. To clarify. The pbx in the cloud is effectively a burner box. I don’t have sip the nod [SIC] attached to it but if you distribute the client to whomever, you can have private convos and webmeetings and have the ability to destroy the pbx at short notice“. Note that ‘sip the nod’ is a spell check error for ‘sip trunk’.
However, Mr Justice Adam Johnson found that the claimants had not showed beyond reasonable doubt that C3X was to act as a covert communications system for Mr Hillary.
The judge said: “Mr Henery described Mr Faiman as “a very paranoid man” who had an abiding concern about data security. The point had particular significance given the fact that those involved with Today – including in particular Mr Faiman – were often travelling. Other communication systems – including at the time WhatsApp – were not regarded as secure from hacking. Mr Henery said he was influenced in selecting 3CX by the fact that it suited the needs of a group who were largely mobile, and who required confidence that their data was secure. Thus, he said during his cross-examination: ‘The 3CX thing which is here came from a requirement because everybody in the senior team at that stage was floating around the world, attempting to do deals, and they needed to make phone calls back home or to each other.’”
Henery denied that C3X was selected because of its ‘burner box’ feature but accepted that it had that facility.
The judge also wasn’t convinced beyond reasonable doubt that 3CX contained any Ocado confidential information, given that its limited functionality meant that it couldn’t be used to send copies of confidential documents and was largely used for texts and phone calls. Anything of real substance, the judge decided, would be likely to have been sent in an email.
However, the judge found that the app did contain documents relevant to Ocado’s claim. He said: “…any document which would support an argument that work was going on by Mr Hillary would qualify as a Listed Item. It is plain, I think, that the same basic test would apply in determining whether information on the 3CX App was relevant to Ocado’s claims – I understand relevant to mean disclosable.”
While the judge found McKeeve had interfered with the administration of justice, he was not convinced that McKeeve caused the destruction of documents that he knew were relevant, or that relevant specifically to work by Hillary.
The hearing re costs and sanctions will take place on 4 October.