Access to data: A beneficiary’s privilege
In a judgment dated 11 March 2020 in the Dawson-Damer v Taylor Wessing litigation, the Court of Appeal confirmed that legal advice obtained for the benefit of a trust cannot be withheld from a beneficiary where it is responsive to that beneficiary’s subject access request (SAR) under the UK Data Protection Act (DPA).
The claimants in the Dawson-Damer v Taylor Wessing litigation are Mrs Ashley Dawson-Damer and her two children. In 2015, Mrs Damer-Dawson commenced proceedings in The Bahamas challenging, among other things, appointments made by a trustee of a Bahamian law governed trust (of which she is a beneficiary). Prior to issuing those proceedings, Mrs Damer-Dawson and her children issued SARs seeking their personal data held by Taylor Wessing, the trustee’s UK solicitors. The litigation concerns Taylor Wessing’s compliance with the claimants’ SARs.
One of the issues for the Court of Appeal was whether Taylor Wessing could rely on the legal professional privilege exception in relation to data to which litigation privilege did not attach. Mrs Dawson-Damer argued that Taylor Wessing could not, on the basis that there was “joint privilege” as between her and Taylor Wessing’s client (the trustee). Taylor Wessing sought to argue that Bahamian law, which allows a trustee to refuse to disclose certain information to beneficiaries, must impact the analysis whether there is joint privilege as between Mrs Damer-Dawson and the trustee.
The Court concluded that joint privilege arises as a matter of procedural law rather than substantive trust law and therefore whether joint privilege exists is a matter to be determined by reference to domestic English procedural law only (where the dispute arises in England); Bahamian trust law is irrelevant. Accordingly, Taylor Wessing could not assert a claim for privilege in documents containing legal advice that was otherwise responsive to Mrs Damer-Dawson’s SAR.
Although the Court’s decision on privilege may have had the impact of widening the scope of the disclosure that Mrs Damer-Dawson would ultimately obtain, the Court also concluded that paper files held by Taylor Wessing were not “a relevant filing system” for the purposes of the DPA. Although the Court confirmed that paper files could be a relevant filing system, in this case extracting personal data from Taylor Wessing’s paper files would necessarily require an individual to review every page of those files. Since the criterion by which the data was structured (being the name of a trust) did not allow relevant data to be easily retrieved from the files, the files did not meet the definition of “a relevant filing system”. Therefore, Taylor Wessing would not be required to search its paper files for relevant data in response to the claimants’ SARs.