McDermott Helps Transform Trust Beneficiaries Rights with Victory in Landmark Data Protection Case

Overview


In the latest round in the ongoing saga of Dawson-Damer v Taylor Wessing, the McDermott team, led by partner Ziva Robertson, has secured an important victory for Dawson-Damer seeking the release of personal data held by their trustee’s law firm Taylor Wessing.

Ziva Robertson explains the significance of this decision “The case constitutes an important victory for individuals who, in the age of transparency, wish to obtain their personal data from third parties who control and process that data. It also gives important guidance to trustees and other professionals on the steps to comply with their duties under the Data Protection Act (DPA).”

By way of background to 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 others, potentially in breach of trust. Prior to issuing proceedings, they served a Subject Access Request under the DPA on a number of people, including individual fiduciaries and their London solicitors, Taylor Wessing.

In the latest development in this seminal case, the matter was remitted to the High Court after the team secured a landmark decision in the Court of Appeal and Taylor Wessing were ordered to review their files and release personal data held on the claimant-beneficiaries. Taylor Wessing reviewed their electronic files but refused to review their paper files on the grounds that these did not constitute a “relevant filing system” under the Data Protection Act (DPA). The High Court rejected that argument and found that:

1. Under English law, beneficiaries enjoy joint privilege with trustees in respect of advice taken by the trustees for the benefit of the trust;

2. Taylor Wessing’s relevant paper files should be searched and personal data disclosed to claimants; and

3. The searches carried out by Taylor Wessing had been insufficient to discharge their duties under the DPA.

This case continues to clarify important aspects of the Data Protection Act and the rights of individuals to access their personal data. The most recent decision confirms that paper files are not exempt from the scope of the Act and must be searched for personal data. It also confirms that, as a matter of English law, a beneficiary is part of the circle of privilege in relation to legal advice taken by the trustee for the benefit of the trust and in the absence of litigation privilege, trustees and beneficiaries have joint privilege in legal advice.

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