Looking after documents? Here’s a post for our LPC community!

If you’ve studies Civil Lit you’ll have learnt about search orders – draconian in nature these empower solicitors to look for particular categories of documents which are described in advance to the court. These orders are made infrequently and only where the court is persuaded that there is good reason that if the order is not made then relevant documents might go missing.

Solicitors are officers of the court and are under very clear obligations to explain the implications of search orders to their clients. They need to tell clients to preserve the documents which are the subject of the order. In Ocado Group Plc v McKeeve [2021] it didn’t quite work out like that!

A solicitor, having been told of the existence of a search order sent a message to an employee of his client “Burn all!” in relation to a messaging system app! The employee acted on the instruction and the messages were irrevocably destroyed. This case landed up in the Court of Appeal and there are two good points worth noting here. The first is that the app (on which the messages were held) was deemed a “document”. The second, very unsurprising conclusion was that there was a case to answer in respect of a contempt application against the solicitor (the case not to be heard until after the conclusion of the main issue). The Court of Appeal expressed its amazement that a solicitor could order the destruction of material in respect of which a search order had been made.

You might find that you can refer to this case in an ethics question as well as anything on what constitutes a document – it might be a snappy route to a few extra marks!