Overview
The Court of Appeal has today released its second decision in the long running Dawson-Damer v. Taylor Wessing litigation. The present appeals by the parties arose out of the High Court’s decision in June 2019, which concerned two central questions: first, whether trustees can maintain legal professional privilege (other than litigation privilege) against beneficiaries; and second, whether paper files are a “relevant filing system” for the purposes of the Data Protection Act 1998 (DPA) and need not be searched for the personal data of a person who submits a Subject Access Request. The rulings in this appeal are likely to be binding under the Data Protection Act 2018, which contains similar provisions in respect of these two aspects.
Background of the case
The Claimants, who are (or have been) beneficiaries of certain Bahamian trusts, had discovered that substantial funds had been paid out of one of the trusts for the benefit of other beneficiaries, potentially in breach of trust. Before issuing breach of trust proceedings in The Bahamas, the Claimants served Subject Access Requests under the DPA on a number of people connected to the trust, including individual fiduciaries and London solicitors, Taylor Wessing, who acted for both the individual fiduciaries and the trustee.
Decision
The Court of Appeal held and clarified that:
- Under English law, beneficiaries enjoy joint privilege with their trustees in respect of advice taken by the trustees for the benefit of the trust. The Court of Appeal held that questions of privilege are ones of procedure and not substantive questions of trust law, and when proceedings are issued in the English Court, such questions will be determined by reference to English law alone (as the lex fori) without reference to foreign law. The fact that trustees may be entitled to withhold information from beneficiaries under trust law does not give rise to the privilege exemption under the DPA.
- The Court of Appeal also reversed the effect of the 2004 case of Durant v FSA, and held that, as a matter of principle, paper filing systems are indeed “relevant filing systems” under the DPA. In so doing, the Court of Appeal has recognized that the test set out in Durant was unnecessarily restrictive and the rights and protections of individuals should be viewed through a more current lens. On the facts of this case, Taylor Wessing were not required to search their paper files on the basis that the structure of their files did not, in fact, enable an easy retrieval of the personal data, which is one of the criteria under the DPA.
Commenting on today’s judgment, Ziva Robertson, co-head of McDermott Will & Emery’s Private Client practice in London says:
“This is yet another victory for beneficiaries seeking information from data controllers: in the age of transparency, individuals should be – and are – entitled to have access to information about themselves in circumstances where such information is used to make decisions that affect their lives.”
The McDermott team advising the Dawson-Damer beneficiaries was led by Ziva Robertson who co-heads the Firm’s Private Client practice in London, and associates Jennifer Ronz, Georgia Angus and Anita Shah.
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