Analysis
Taylor Wessing LLP (TW) are the London solicitors of Grampian Trust Company Limited (the trustee), a company resident and incorporated in the Bahamas. The trustee is trustee of a discretionary settlement known as the Glenfinnan settlement, settled in 1992 and governed by Bahamian law. The Glenfinnan settlement was a resettlement of certain funds from an earlier Bahamian settlement (the 1973 settlement). The first claimant is a beneficiary of the Glenfinnan settlement. The second and third claimants, her children, are not beneficiaries. In 2006 and 2009 the trustee made substantial appointments out of the funds to trustees to hold upon new discretionary trustees. This reduced the fund by $402m, leaving only $9m in the trust. The claimants were informed of these appointments in 2013 and 2014. In February 2014, solicitors acting for the claimants wrote to TW asserting that the appointments were invalid, and also challenging the validity of the 1992 resettlement. They invited the trustee to disclose a number of documents. In August 2014, solicitors acting for the claimant sent subject access requests on behalf of all three claimants to TW and asking for all data of which the claimants were the data subject. TW responded that the personal data held was exempt from the subject access provisions of the Data Protection Act 1998 (DPA) on the basis of legal professional privilege. Schedule 7, para 10 provides an exemption for ‘information in respect of which a claim to legal professional privilege […] could be maintained in legal proceedings’. TW also asserted that the some of the information was stored in manual, loose leaf files, which were not a ‘relevant filing system’ for the purposes of the DPA. They further asserted that checking all of the files in their possession, which went back over at least 30 years, to check if legal professional privilege applied, would not be reasonable and proportionate.
In January 2015, the claimants made an application for orders under s7(9) DPA requiring TW to comply with their requests. TW resisted the application. Section 7(9) provides that ‘if a court is satisfied on the application of any person who has made a request under s7 that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request.’
In March 2015, the first claimant issued a writ in the Bahamas against Grampian in which she challenged the validity of the appointments and seeks the return of the assets transferred under those appointments.
At the hearing of the application, HHJ Behrens considered evidence from two Bahamian lawyers on the law of disclosure in the Bahamas, including under s83(8) of the Bahamian Trustee Act 1998.
Held (dismissing the application):
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- 1) The DPA adopted the wording of the directive, and a purposive approach was appropriate. The purpose of the provisions was to protect the claimants’ right to privacy and accuracy of the information held by TW. It was not the purpose of s7 DPA to enable the individual to obtain discovery of documents that may assist him in litigation or complaints against third parties (Durant v FSA per Auld LJ at para 27). The exemption in schedule 7, Para 10 DPA for legal professional privilege should be interpreted purposively so as to include all the documents in respect of which the trustee would be entitled to resist compulsory disclosure in Bahamian proceedings.
- 2) Under s8(2) DPA the data controller is only required to supply the individual with such personal data as is found after a reasonable and proportionate search. It was not reasonable or proportionate for TW to carry out the necessary search to determine if any particular document was covered by privilege.
- 3) (Obiter) Parliament intended to apply the DPA to manual records only if they are of sufficient sophistication to provide the same or similar ready accessibility as a computerised filing system.
- 4) As the first claimant had not so far formulated her claim against the trustee, it was not clear whether she was alleging a lack of good faith. Therefore it was unclear whether she could rely on the principle of English law that a trustee may be compelled to disclose confidential legal advice to a claimant beneficiary in hostile litigation where the beneficiary seeks to challenge the validity or good faith of the trustee’s decision about exercise of its power.
- 5) The discretion under s7(9) did not arise. (Obiter) if the discretion did arise, the judge would have declined to exercise it. The real purpose of these subject access requests was to obtain information to be used in connection with the Bahamian proceedings. This was not a proper purpose. The question of whether it is reasonable and proportionate to expect TW to carry out a search are relevant to the exercise of discretion.
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