Lloyds v Accor – TCC Confirms Disclosure Extends to Personal Devices
The Technology and Construction Court (“TCC”) has handed down an important judgment in Lloyds Developments Ltd (in administration) v Accor HotelServices UK Ltd & Ors [2026] EWHC 1522 (TCC), reaffirming the Court’s robust approach to disclosure and confirming that relevant business communications stored on personal mobile devices may be subject to disclosure, notwithstanding privacy concerns.
The decision serves as a timely reminder that parties involved in construction disputes cannot shield relevant evidence simply because it is contained on privately owned devices. Where business communications relate to matters in dispute, the Court will prioritise the fair administration of justice, provided suitable safeguards are in place.
Background
The underlying proceedings concern a substantial deceit claim exceeding £180 million arising from the development of a London hotel project. Lloyds alleged that Accor fraudulently represented that significant design changes were necessary to avoid copyright infringement, causing extensive delays, increased costs and ultimately the failure of the development. Accor denied those allegations and asserted that the project’s failure resulted from Lloyds’ own financial and management decisions.
As disclosure progressed, it became apparent that potentially relevant communications existed on the personal mobile phones of Lloyds’ former directors. Previous disclosure orders had required those devices to be provided to an Independent Reviewer so that relevant WhatsApp messages, iMessages and SMS communications could be identified and disclosed.
Despite numerous case management orders spanning several years, the directors refused to provide effective access to their devices, arguing that the phones contained significant personal, confidential and legally privileged information, and that any deleted messages were unlikely to be recoverable.
The Court’s Decision
Mr Justice Constable rejected the directors’ objections and granted mandatory injunctions requiring them to provide their devices to enable the disclosure exercise to proceed. The Court found that Lloyds was entitled to relief on several independent legal grounds.
Common Law Rights
The Court reaffirmed the long-established principle that a principal is entitled to inspect documents relating to its business held by its agents, relying upon Fairstar Heavy Transport NV v Adkins and Yasuda v Orion Marine Insurance. Importantly, the Court confirmed that this principle applies equally to modern electronic communications. Emails, WhatsApp messages, iMessages and other electronically stored business records are treated no differently from traditional paper documents. The fact that those communications were stored on privately owned mobile phones did not prevent Lloyds from exercising its common law right to inspect them.
Privacy Is Not an Absolute Defence
A significant issue before the Court was the directors’ reliance upon their Article 8 right to privacy. Whilst accepting that personal mobile phones inevitably contain private information, the Court emphasised that Article 8 rights are qualified rather than absolute. The appropriate exercise is one of balancing privacy against the proper administration of justice. In this case, that balance strongly favoured disclosure because robust safeguards had already been established. An Independent Reviewer would conduct the forensic imaging and review process, ensuring that only material responsive to the agreed disclosure criteria would ultimately be disclosed to the parties. Accordingly, the Court concluded that any intrusion into the directors’ privacy was proportionate.
Deleted Messages Remain Fair Game
The directors also relied upon expert forensic evidence suggesting that deleted WhatsApp messages are often technically unrecoverable. The Court was unpersuaded. Whilst recovery may be uncertain, uncertainty is not the same as impossibility. The judge held that an unpredictable prospect of recovery does not render the exercise disproportionate, particularly where allegations of dishonesty lie at the heart of the proceedings. Indeed, the Court observed that deleted communications may prove more significant than messages which had remained on the devices.
Contractual Obligations to Assist Litigation
The directors had also entered into a Funding Agreement requiring them to provide reasonable assistance in the litigation and comply with the reasonable requests of Lloyds’ solicitors. The Court held that these provisions plainly required the directors to provide access to their mobile devices in order to enable Lloyds to comply with its disclosure obligations. By refusing to do so, the directors were found to be in breach of their contractual obligations.
CPR 31.17
Although unnecessary given its findings on the common law and contractual issues, the Court further concluded that the application would also have succeeded under CPR 31.17 concerning third-party disclosure. The judgment confirms that the Court’s powers under CPR 31.17 and section 34 of the Senior Courts Act 1981 are sufficiently broad to require production of personal devices where necessary to facilitate disclosure, provided appropriate safeguards are imposed.
Key Takeaways
This judgment reinforces several important principles for parties involved in construction and commercial disputes:
- Business communications do not become immune from disclosure because they are stored on personal devices.
- Former directors and employees may remain subject to disclosure obligations arising from their previous agency relationship.
- Article 8 privacy rights will be carefully balanced but will not ordinarily prevent disclosure where suitable procedural safeguards exist.
- The uncertain prospect of recovering deleted electronic communications is not, without more, sufficient to defeat a disclosure application.
- Broad contractual obligations requiring cooperation in litigation may extend to providing access to personal devices where necessary to enable compliance with disclosure obligations.
How CCC Can Help
Electronic disclosure has become an increasingly important feature of modern construction disputes, with project communications frequently taking place through WhatsApp, Microsoft Teams, emails and other instant messaging platforms.
At Contract & Construction Consultants (CCC), we regularly advise employers, contractors, subcontractors and consultants on disclosure obligations arising in adjudication, litigation and arbitration. Our team assists clients with developing proportionate disclosure strategies, preserving electronic evidence, navigating disclosure disputes, and ensuring compliance with both contractual obligations and the Civil Procedure Rules.
Whether acting before proceedings commence or during active dispute resolution, CCC can provide practical, commercially focused advice to minimise risk, manage disclosure efficiently and protect our clients’ positions.
