Mishcon de Reya has secured settlement for Ocado Group PLC in its litigation against two former employees (Mr Jonathan Hillary and Mr Jonathan Faiman, the latter of whom was a co-founder of Ocado) and the competing business they set up, Project Today Holdings Ltd ("T0day"). The defendants were accused of (and have now admitted to) misappropriating Ocado's confidential information with the intention of using it in their new business. The settlement is the culmination of two years of proceedings, beginning with a multi-site search order obtained and executed against the defendants in July 2019.
As part of the settlement, the defendants have agreed a public statement of facts, in which they acknowledge that:
- While still employed by Ocado, Mr Hillary, at Mr Faiman's request, provided Mr Faiman with a significant number of confidential documents belonging to Ocado, including documents relating to the running of Ocado's automated warehouses and the key agreement under which Ocado would provide its online grocery technology to the joint venture with M&S.
- At the time that Ocado's search order was served on him, Mr Faiman was on his way to a meeting with Waitrose with a significant number of these confidential documents in hard copy.
- The reason for obtaining these confidential documents was to use them for the purposes of T0day's business. Mr Faiman also provided some of these documents to T0day’s advisors.
- In so doing, Mr Faiman, T0day and Mr Hillary breached their obligations of confidence to Ocado. Mr Hillary breached certain contractual and fiduciary duties owed to Ocado and Mr Faiman induced Mr Hillary's breaches of contract.
Ocado has recovered the confidential information taken by the defendants, and the High Court has made a permanent injunction preventing its future use by the defendants. In addition, the defendants have made a significant payment to Ocado as part of the settlement, and T0day has withdrawn its counterclaim against Ocado and retracted the allegations made in their entirety.
During the claim, separate committal proceeding were commenced against Mr Raymond McKeeve, a lawyer and advisor to T0day, for contempt of court. These proceedings stem from actions taken by Mr McKeeve during the execution of Ocado's search orders in 2019, during which Mr McKeeve ordered the destruction of a secure messaging platform used by the Defendants. The proceedings against Mr McKeeve continue.
Ocado's public statement on the proceedings is available here.
The Mishcon de Reya team included Robert Wynn Jones, John Sendama, Tom Roberts, Euan McMahon and Freya Reevell. Counsel for the main proceedings was David Cavender QC of One Essex Court and Tom Cleaver of Blackstone Chambers. Counsel for the committal proceedings against Mr McKeeve are David Cavender QC and Alex Brown, also of One Essex Court.