Background
Lloyds Developments Limited (now in administration) brought a £180 million deceit claim against Accor Hotel Services UK Limited, alleging that Accor fraudulently manufactured copyright objections to force costly design changes to a hotel project for which Lloyds had limited financing. Accor denied fraud and counterclaimed in substance that the project failed because it was underfunded, and that the two director-founders, Rishipal Singh and Richard Diamond, had misled investors about costs and misappropriated funds. With dishonesty allegations running in both directions, the directors’ instant messages on their personal phones were central to the dispute.
From October 2022 onward a succession of TCC judges ordered Lloyds to procure that the directors submit their devices to an Independent Reviewer for a forensic disclosure exercise. The directors resisted throughout, providing only controlled, limited access under the supervision of their own legal teams. By January 2026, Deputy Judge Alexander Nissen KC reactivated the disclosure order and directed Lloyds to seek a formal order compelling effective access if the directors did not comply. They did not, prompting Lloyds to bring both an application within the main proceedings and separate Part 8 proceedings seeking specific performance and mandatory injunctive relief. Accor participated as an interested party.
The directors’ primary opposition rested on two grounds: first, that a digital forensic expert (the Naghdi Report) concluded that deleted WhatsApp messages on iPhones are often technically unrecoverable, making the exercise speculative and disproportionate; and second, that compelling surrender of personal devices would violate their Article 8 ECHR privacy rights because the phones also contained extensive private, confidential, and potentially privileged material belonging to third parties.
The Court’s Holding
Mr Justice Constable granted the application and ordered the directors to deliver their mobile devices to the Independent Reviewer. He held, first, that Lloyds had a well-established common law right as principal to inspect and copy documents relating to its business affairs held by its former agents, following Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886 and Yasuda v Orion Marine Insurance [1995] QB 174. That right extended to electronically stored communications and survived the termination of the agency relationship. The fact that some messages had already been disclosed did not amount to substantial compliance, particularly since no properly supervised forensic review had ever been conducted independently of the directors themselves.
Second, the court held that the directors were independently in breach of their contractual obligations under a Funding Agreement dated 21 November 2025, specifically the broad duty to provide “all reasonable assistance” and “reasonable access to all such documents” to Lloyds’ solicitors. The directors’ argument that this clause could not be construed to waive Article 8 rights was correct in principle but irrelevant on the facts, because the Article 8 balance already favoured disclosure. The court found the obligation to hand over devices plainly fell within “reasonable assistance” and, had the parties intended to exclude it, they would have said so expressly.
On Article 8 privacy, the court carried out the required balancing exercise and concluded that the safeguards built into the Independent Reviewer process — whereby only documents responsive to agreed search parameters would ever be seen by Lloyds or its solicitors — reduced the intrusion to a minimum. Delivery up remained proportionate notwithstanding the uncertainty about whether deleted messages could be recovered: the Naghdi Report’s language (“often” and “frequently” unsuccessful) was equally consistent with recovery often succeeding, and the court declined to characterise the outcome as “highly unlikely” or “improbable.” The court also addressed CPR 31.17 (third-party disclosure) for completeness, rejecting the directors’ technical objection that Lloyds, as the formal applicant, could not satisfy the requirement that disclosure support the applicant’s own case, since it was the directors themselves who contended any recovered material would support Lloyds.
Key Takeaways
- A company retains a common law right as principal to inspect business communications held on a former director-agent’s personal device; that right extends to electronically stored data and deleted messages that remain technically recoverable.
- Uncertainty about whether deleted data can actually be retrieved does not render a forensic device-imaging order disproportionate, particularly where allegations of dishonesty are central to the litigation and prior disclosure was controlled by the very individuals under scrutiny.
- An Independent Reviewer mechanism — limiting access to documents responsive to agreed search parameters — is sufficient to protect Article 8 privacy rights and will ordinarily tip the balance in favour of disclosure when business and personal data are commingled on personal devices.
- A broad contractual duty to provide “all reasonable assistance” with litigation obligations encompasses handing over personal devices for a court-supervised disclosure exercise, absent an express carve-out.
- Courts retain power under section 34(2) of the Senior Courts Act 1981 to order physical delivery up of devices as part of a third-party disclosure order under CPR 31.17.
Why It Matters
This decision reinforces that directors and officers cannot frustrate a company’s disclosure obligations simply by keeping business communications on personal phones and then offering only self-supervised, piecemeal access to those devices. The judgment makes clear that the common law principal-agent inspection right travels with the data regardless of the medium, and that an independent forensic review — rather than device-holder-controlled access — is the appropriate safeguard when adequacy of earlier disclosure is in doubt.
For litigators and in-house counsel, the case also underlines the risks of broad “reasonable assistance” clauses in litigation funding or cooperation agreements: absent express limits, such clauses will be construed to require compliance with court-ordered disclosure mechanisms, including device surrender. The court’s proportionality analysis — treating forensic unpredictability as a neutral factor rather than a reason to refuse the order — sets a high bar for resisting digital disclosure orders on speculative-outcome grounds.