High Court orders party's directors to hand over mobile devices to an independent reviewer

The High Court has ordered the directors of a claimant company to provide their mobile phones to an independent third-party reviewer so that the claimant could carry out a disclosure exercise in respect of their instant messages: Lloyds Developments Ltd v Accor Hotel Services UK Ltd [2026] EWHC 1522 (TCC).  

The decision confirms the general rule that a principal is entitled to require its agent to produce documents relating to the principal's affairs. This rule applies regardless of how or in what format the documents are stored and so extends to instant messages on a mobile device.

The decision also confirms that an individual's right to privacy under Article 8 of the European Convention on Human Rights does not automatically override disclosure or delivery up obligations. Where a device contains both relevant material and personal, confidential or potentially privileged information, the court must balance the need for the due and efficient administration of justice against the individual's right to privacy. The existence of safeguards, such as providing the device to an independent third-party reviewer, will be an important factor and may tip the balance in favour of disclosure, as was the case here.

Background

The underlying dispute relates to the conversion of a building in Glasgow into a hotel. The claimant, Lloyds, is the owner of the building. Lloyds entered into hotel management and consultancy agreements with the defendant, Accor, which was to operate the hotel as a "Tribe" brand hotel. Lloyds claims that Accor fraudulently advised it that design changes were required due to "copyright issues" relating to the "Tribe" brand, which rendered Lloyds unable to progress with construction, ran up costs and caused its funders to withdraw. Lloyds later went into administration. Each party alleges dishonesty against the other. 

The present decision concerns Lloyds' application against two of its directors for delivery up of their mobile devices to an independent reviewer so that a disclosure exercise can be performed in respect of a specified class of instant messages. Lloyds brought its application both as a third-party disclosure order in the main proceedings and as a separate Part 8 claim against the directors, in which Accor was an interested party. The claims were consolidated by consent.

Lloyds had represented in its Disclosure Review Document ("DRD") that there were WhatsApp messages, iMessages and SMS on mobile phones likely to be relevant to the dispute, and that the directors' phones were available to it as a potential data source. Lloyds was ordered to give disclosure in accordance with the DRD but did not comply insofar as the order related to data on the mobile phones. The court subsequently ordered that an independent reviewer be appointed and that Lloyds procure that the directors provide their mobile phones to that individual. The directors did not comply, resulting in the present application.

Decision

The High Court (Constable J) ordered the directors to provide their mobile devices to the independent reviewer. 

It described the extent of judicial time spent managing this case as "unprecedented", noting that the order made on this application would be at least the 56th in the litigation. It also noted that Coulson LJ had previously criticised Lloyds for failures to comply with their disclosure obligations, in which failures they had been assisted by the directors.

Common law right

One of the grounds on which Lloyds brought the application was a common law right to inspect and copy documents. The authorities establish that, as a general rule, a principal is entitled to require its agent to produce documents relating to the affairs of the principal, and this right is not extinguished by termination of the agency (Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886, considered here). Further, an agent cannot "rely on the inseparability of irrelevant materials as a basis for declining to permit inspection, extraction and copying of the relevant material" (Yasuda v Orion Marine Insurance [1995] Q.B. 174, cited with approval in Phones 4U (In Administration) v EE Ltd [2021] EWCA Civ 116, considered here).

The directors did not dispute this general principle but argued that it had to be balanced against an individual's Article 8 right to privacy in circumstances where the documents sought were contained on a personal device holding very considerable amounts of private, confidential and potentially privileged information. They further argued that they had already provided access to their phones to both their own solicitors and Lloyds' solicitors, and that the only messages to which the application related may have been deleted. They adduced expert evidence which suggested that recovery of such messages was "highly unlikely". The directors accordingly argued that the order sought was neither reasonable nor proportionate to the likelihood of recovering any relevant disclosable messages.

The court held that, in the context of this case - in particular the centrality of allegations of dishonesty against the directors - these factors did "not begin to militate" against the directors being required to provide their phones. It was not clear that the only relevant material would be deleted messages, nor that all non-deleted messages had been disclosed. Deleted messages might be as relevant as those that had not been deleted and, on one view, more likely to contain relevant material than messages the directors were content to leave on their phones when submitting them to their lawyers. To the extent deleted messages were recoverable, they were within the directors' control and subject to the general common law rights. The court also found that the directors had overstated their expert's conclusions: while recovery of deleted messages may "often" or "frequently" be unsuccessful, that language is equally consistent with recovery "often" or "frequently" being successful. The unpredictability of the outcome did not render the exercise disproportionate.

Finally, the court noted that previous judges in the case had already considered the fact that relevant material would be mixed with personal and irrelevant material. The court concluded that the Article 8 right to privacy is not absolute and that a balancing exercise is required. In that context, the protections afforded to the directors – namely, the appointment of an independent reviewer – were important.

Considering the above, the court held that on the facts of this case the balance weighed "firmly and decisively" in favour of enforcing Lloyds' common law rights. 

Contractual right

Lloyds also argued that it had a contractual right to require the directors to hand over their devices under a Funding Agreement to which they were party.

The court agreed that the directors were in breach of their contractual obligations under that agreement to "provide all reasonable assistance" and comply with Lloyds' solicitors' "reasonable requirements" in conducting the proceedings. 

The directors argued that this obligation could not be construed as a waiver of their Article 8 rights. As the court had already held that provision of their phones would not offend the directors' Article 8 rights, this argument was irrelevant. 

The directors further argued that, had the parties intended reasonable assistance to include provision of the phones, one would have expected an express reference (as the issue of delivery up of the phones preceded the Funding Agreement). The court disagreed: the language of assistance was broad and unfettered and plainly covered provision of material necessary to avoid Lloyds being in breach of a court order. Had the parties intended to exclude provision of the phones, that should have been made clear.

Third party disclosure

Given the court's findings above, it was unnecessary to consider the application for third-party disclosure. However, the court was satisfied that the application would have been successful if it had been brought solely on that basis.