The following article is courtesy of STEP, enjoy!
“A London law firm acting for the trustee of a Bahamian trust has been ordered to comply with a beneficiary’s subject access request for information under the UK Data Protection Act 1998.
The case was brought by a widow, Mrs Ashley Dawson-Damer, and her two children, Piers Dawson-Damer and Adelicia Dawson-Damer, against law firm Taylor Wessing. Mrs Dawson-Damer is a beneficiary of a Bahamian discretionary trust called the Glenfinnan Settlement. In 2013, a dispute arose between the Dawson-Damers and the Glenfinnan trustees, when the former discovered that the trustee had appointed almost all of the trust assets to new discretionary trusts for the benefit of the other discretionary beneficiaries, namely the children of Mrs Dawson-Damer’s brother-in-law.
The Dawson-Damers challenged the validity of this appointment and began breach of trust proceedings against the trustees in the Bahamas, though s.83 of the Bahamian Trust Act enables trustees to withhold documentation from beneficiaries in relation to hostile litigation against them. The family sought to circumvent this by issuing a subject access request (SAR) under s.7 Data Protection Act 1998 in England against Taylor Wessing, the longstanding legal advisor to the trustee. A SAR requires the data controller to make available to the data subjects all information it holds about them.
Taylor Wessing resisted the request, citing the legal professional privilege (LPP) exemption in the DPA. The Dawson-Damers took their request to the England and Wales High Court, arguing that the LPP exemption does not extend to local Bahamian rules. The High Court rejected this argument, with Behrens J pronouncing that the DPA’s purpose is to provide privacy, not to provide information or disclosure of documents that may assist them in litigation against others.
The Dawson-Damers took their case to the England and Wales Court of Appeal, which overturned the High Court’s decision and granted their subject access request. It rejected Taylor Wessing’s supplementary defence that the DPA request was disproportionately difficult for it to comply with. Giving judgment, Arden LJ cited the ‘substantial public policy reasons for giving data subjects control over the data processed about them’, meaning that, so far as possible, a SAR should be enforced.
Parliament, when enacting the DPA, could not have intended the LPP exemption to apply more widely than a claim to LPP that would be recognised in legal proceedings in the UK, because it did not say so, and did not introduce any relevant controls.
Further, the LPP exemption does not extend to documents that are not the subject of LPP but of rules of non-disclosure (such as a trustee’s right of non-disclosure), whether those rules are under English law or Bahamian law. (Dawson-Damer v Taylor Wessing, 2017 EWCA Civ 74).
Barrister Christopher Knight, of 11 King’s Bench Walk, commented that it remains to be seen whether the judgment ‘opens the floodgates’. – “