Personal devices aren’t necessarily off limits for disclosure

The decision in Lloyds Developments Ltd (in administration) v Accor Hotelservices UK Ltd & Ors [2026] EWHC 1522 (TCC) is reminder of the need for early identification, preservation and proper collection of mobile-device data during disclosure exercises in an era where key business discussions often take place on messaging platforms and personal devices.

Background to the Judgment

This case arose from allegations of fraud and dishonesty surrounding a failed hotel development. A key issue was the that the directors of the claimant repeatedly failed to provide disclosure from directors' mobile phones, despite the 2022 Disclosure Review Document (DRD) identifying WhatsApp messages, iMessages and SMS messages as relevant sources of potentially disclosable material. Successive court orders required the devices to be provided for review, but effective access was never given.

Privacy Concerns vs Disclosure Obligations

The directors argued that their phones contained extensive personal, confidential and privileged material – much of it belonging to third parties – and that any remaining undisclosed documents were likely to be deleted messages that were potentially unrecoverable. They contended that requiring delivery of their personal devices would be disproportionate and an unjustifiable interference with their Article 8 (of the Human Rights Act 1998) privacy rights.

The Court rejected those arguments. Relying on Phones 4U (In Administration) v EE Ltd and Others [2022] 1 All ER 239 and Nix v Emerdata Ltd [2024] EWHC 125 (Comm), it was held that privacy rights must be balanced against the need for the fair administration of justice. The use of an Independent Reviewer meant that irrelevant personal material would not be disclosed to the parties, significantly reducing any intrusion into privacy.

Business Communications on Personal Phones Remain Accessible

The Court held that Lloyds had a common law right to inspect and copy company-related communications held by its former directors as agents of the company. The judge applied Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886 and Yasuda v Orion Marine Insurance [1995] QB 174, that electronic communications stored on personal devices are subject to the same principles as paper documents. The fact that communications are mixed with personal material is not, by itself, a reason to refuse inspection.

Further, Lloyds established that the Directors and Lloyds had entered a funding agreement under which the Directors would provide reasonable assistance including disclosure of relevant documents. The court held that “It is appropriate that such right is enforced by final mandatory injunctive relief.”

Deleted Messages Were Still Worth Pursuing

The directors relied on forensic evidence suggesting that deleted WhatsApp messages are often difficult to recover. The court accepted that recovery was unpredictable but rejected the suggestion that this made the exercise disproportionate. The evidence established only that recovery might fail, not that it would fail. Given the allegations of dishonesty and previous disclosure concerns, the possibility that recoverable deleted messages could contain relevant material justified the exercise. The judge observed that deleted messages may even be more likely to contain significant evidence than messages left on the phones.

Third-Party Disclosure Application under CPR 31.17

Although unnecessary to the outcome, the court also concluded that a third-party disclosure application under CPR 31.17 would have succeeded. The requirements of CPR 31.17(3) were met and the court's powers under section 34(2) of the Senior Courts Act 1981 were sufficiently broad to permit an order requiring delivery up of devices, passwords and associated access information, subject to appropriate safeguards. 

Disclosure Obstruction Comes at a Price: 

The court ordered the directors to pay 80% of Lloyds’ costs, summarily assessed at £82,472.50 and 80% of Accor’s costs, summarily assessed at £52,150, holding that the applications were ultimately required by their failure to provide effective access to the devices. The judgment also criticised the lack of co-operation and procedural disputes, which increased costs unnecessarily. The decision serves as a reminder that disclosure failures can lead not only to adverse orders but also significant satellite litigation costs.

Key Takeaways: 

• Personal devices are not beyond the reach of disclosure. Where company business has been conducted on personal phones, courts may order access to those devices, particularly where relevant communications have been identified and there are concerns about the adequacy of prior disclosure exercises. (see Phones 4U (In Administration) v EE Ltd and Others [2022] 1 All ER 239).
• Privacy objections will not automatically defeat disclosure. Safeguards such as independent reviewers can make disclosure orders proportionate even where personal, confidential or privileged material is present on a device.
• Disclosure failures can be costly. Parties who fail to co-operate with disclosure obligations risk intrusive disclosure orders, satellite litigation, and substantial adverse costs awards.

For more information about the law, technology and practice of disclosure, contact Tom Whittaker or Stacie Bourton.

This article was written by Jacob Berger.