Lloyds Developments Limited v Accor Hotel Services UK Limited

Summary

A company in administration sought an order requiring its two former directors to hand their personal mobile phones to an independent reviewer, so that a defined class of their instant messages about the company's affairs could be searched and disclosed.

The former directors resisted, pointing out that they had already given their solicitors access to their phones and raising concerns about privacy and proportionality. The company put its case on two bases: the common law right of a principal to inspect its agent's documents, and the court's third party disclosure jurisdiction.

Mr Justice Constable granted the order. The company could reach its former directors' messages both as a principal entitled to inspect its agents' records and under the third party disclosure test, so the phones were to be handed to an independent reviewer, and the directors were ordered to pay most of the costs.

Background and facts

The application arose in the long-running litigation between Lloyds Developments, now in administration, and Accor Hotel Services. Lloyds sought disclosure of a specified class of instant messages, including text messages, iMessages and messaging-app messages, exchanged between its two former directors over a defined period, including group conversations, about the company's affairs.

The former directors were not parties to the main proceedings, so the application was brought both within the main proceedings and by a separate Part 8 claim, which was consolidated with the main proceedings. The court observed that the case had generated an extraordinary volume of procedural applications, and criticised the parties' failure to co-operate:

"Oft-repeated pleas on the part of the Court for the parties to co-operate in the manner to be expected in modern litigation have largely, and regrettably, fallen on deaf ears."Mr Justice Constable, paragraph 2

The issue

The court had to decide whether to order the company's former directors to give up their personal mobile devices to an independent reviewer so that a defined class of instant messages could be disclosed. That was put on two bases: the common law right of a principal to inspect and copy its agent's documents relating to the principal's affairs, and the court's power to order third party disclosure.

The decision

Mr Justice Constable made the order. The primary basis was the common law right of a principal to inspect and copy the documents of its former agents about the principal's affairs, established in cases such as Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886 and Yasuda v Orion Marine Insurance [1995] QB 174. As former directors, the two men had used their phones to communicate about the company's affairs, and the company was entitled to inspect those communications.

The application also succeeded on the alternative route. The judge was satisfied that the third party disclosure test was met, so that even if the application had rested on that ground alone it would have succeeded:

"I am satisfied that had the application been brought solely pursuant to CPR 31.17, that application would have been successful."Mr Justice Constable, paragraph 61

He weighed the points against the order, including that the individuals had already given their own solicitors access to their phones, but concluded that an independent reviewer process was justified to extract the defined class of messages. The former directors were ordered to hand their devices to the independent reviewer, and to pay 80 per cent of the applicant's and the interested party's costs, summarily assessed.

Practical implications

A company can reach its directors' messages about its affairs. Where directors have used personal phones to communicate about the company's business, the company, or its administrators, can rely on the common law right of a principal to inspect and copy its agent's documents. Directors should not assume that using a personal device or a messaging app keeps company business private from the company itself.

Third party disclosure is a further route to a non-party's messages. Even where the agency right does not apply, the court can order a non-party to give disclosure of relevant messages where they are likely to affect a party's case and disclosure is necessary to dispose of the claim fairly. Individuals connected to a dispute cannot assume that their personal messages are beyond the court's reach.

Instant messages on personal phones are disclosable, so preserve them. Text messages, iMessages and messaging-app messages, including group chats, are documents that can be ordered to be disclosed, and the fact that they sit on a personal device is not a barrier. Parties and their advisers should identify messaging platforms as sources at the outset and preserve the material.

An independent reviewer can balance disclosure and privacy, and resisting carries a costs risk. Rather than a wholesale handover, the court can order that a device go to an independent reviewer who extracts only the defined class of messages, protecting private and irrelevant material. The former directors here were ordered to pay most of the costs, so a person likely to hold relevant messages should co-operate with a proportionate process rather than resist outright.

Lloyds Developments Limited (in administration) v Accor Hotel Services UK Limited [2026] EWHC 1522 (TCC), Technology and Construction Court, Mr Justice Constable. Judgment handed down 19 June 2026.