Very interesting piece on Lexology by Kirtan Prasad and Daniel Hemming. I’ll let you read the facts here but in terms of the judgement, the High Court judge held that the requirement that a document must be in the party's "control" is a critical component in delimiting the documents to which the party's obligations of disclosure applies.
Ultimately this judgement seems pretty fair. I suppose the key takeaway here, or rather my advice for clients, would be try to always keep work communication on work devices only, then there won’t be a chance of personal devices being disclosable. This is, of course, becoming increasingly difficult with the blurred lines between work and personal and in these pandemic hybrid working times.
The High Court recently considered whether a party could be obliged to seek disclosure from the personal mobile devices of its ex-employees on the basis that documents on the phones were within the party's control, or by using its best endeavours to seek disclosure. This case confirms that the ultimate test for disclosure remains that of control. It also provides clarification that there is no power to order a party to seek disclosure of documents that are not within its control, absent of a third-party disclosure order.