Dawson-Damer & ors v Taylor Wessing LLP & ors [2019] WTLR 1111

Analysis

The claimants are beneficiaries of a number of Bahamian trusts; Taylor Wessing LLP (TW) act as the solicitors for the trustees of a number of these trusts.

On 14 August 2014, the claimant served a subject access request (SAR) on TW, requesting disclosure of the personal data relating to them held by TW as the solicitors for the trustees They were unsatisfied by the disclosure provided to them by TW, and brought proceedings under s7(9) of the Data Protection Act 1998 (DPA 1998).

The matter came before the Court of Appeal ([2017] 1 WLR 3255), which upheld the claimants ‘ appeal and remitted the case to the Chancery Division for the determination of various questions. Following correspondence between the parties, and tranches of disclosure provided by TW following the Court of Appeal ‘s decision, TW maintained that they had carried out their disclosure obligations. The claimants disagreed; as a result there were four issues that fell to be determined by the court:

1. (i) Whether the paper files maintained by TW before it moved to electronic files were a “relevant filing system” for the purposes of s1(1)(c) of the DPA 1998;
2. (ii) Whether TW could rely on the legal professional privilege exemption (LPPE) at para 7 of sch 10 to the DPA 1998, in respect of any documents that contain the claimants ‘ personal data;
3. (iii) Whether TW was in breach of its obligations under s7 of the DPA 1998 by failing or refusing to carry out reasonable and proportionate searches for the claimants ‘ personal data; and
4. (iv) Whether TW had breached obligations under s7 of the DPA 1998 by redacting or withholding the claimants ‘ non-exempt personal data.

The first issue

Before 2005 TW exclusively used a paper filing system. Between 2005 and 2008 they transitioned to an electronic filing system, which they fully adopted in 2008. In total, TW held 44 paper files which appeared to relate to the relevant trusts. They agreed to search nine of these, but argued that thirty-five of the folders, which were simply labelled ‘Yuills Trists ‘, were not a relevant filing system and therefore were not ‘data ‘ which could be the subject of a SAR. In this regard they relied on the decision of the Court of Appeal in Durant v Financial Services Authority [2004] FSR 573.

The claimants argued that these thirty-five files, which were arranged chronologically, were indeed a relevant filing system. In particular, they relied on the decision of the Grand Chamber of the CJEU in Case C-25/17 re Tietosuojavaltuutettu. Any data that was structured according to specific criteria which, in practice, allowed it to be easily retrieved, was a relevant filing system. The relevant provisions should be read purposively in order to protect an individual ‘s fundamental right to disclosure of data relating to them.

The second issue

Legal professional privilege encompasses both litigation privilege and legal advice privilege. It was common ground that TW was entitled to assert litigation privilege (and therefore rely on the LPPE) from 18 February 2014 onwards, which was the date on which the claimants ‘ solicitors first challenged appointments made by the trustees in 2006 and 2009.

TW submitted that it should be able to claim litigation privilege from 1 October 2013 onwards, as this was the date on which the first claimant ‘s solicitors first called TW to raise the first claimant ‘s grievances. This was contested by the claimants, on the basis that this phonecall did not disclose a threat of litigation, and not least because the 18 February 2014 date had previously been agreed by the parties when the matter had previously been heard by HHJ Behrens and the Court of Appeal.

Aside from the question of the starting date, TW submitted that it was entitled to rely upon LPPE on four bases:

1. a) Under English trust law, it was wrong to say that so-called ‘joint privilege ‘ arises where the trustee and beneficiary have a common interest in the privileged material. This was based on a proprietary analysis of a beneficiary ‘s right to disclosure, which had been rejected by the Privy Council in Schmidt v Rosewood [2003] 2 AC 709.
2. b) Under s83(8) of the Bahamian Trustee Act 1998, a beneficiary ‘s right to inspect legal advice obtained by a trustee was strictly circumscribed.
3. c) The time and cost involved in identifying which documents were subject to LPPE would be disproportionate.
4. d) Even if the first claimant was entitled to disclosure of the data, the second claimant and the third claimant were not, as they are not beneficiaries of the relevant trust. Disclosure to the first claimant would mean document inappropriately finding their way into the hands of the second and third defendants.

On each of these points, the claimants submitted:

1. a) Joint privilege exists as a matter of English trust law. For example, advice regarding the trusts as a whole, which had been paid for from trust funds, may be privileged against third parties but would not be privileged against the beneficiaries of that trust.
2. b) The points regarding s83(8) of the Bahamian Trustee Act had already been argued before the Court of Appeal, which had found in the claimants ‘ favour. Attempts to rely on a Bahamian statute to establish privilege in English proceedings were incorrect in law.
3. c) TW had not provided sufficient evidence to show that any search would be disproportionate. It was impermissible to simply refuse to disclose documents on the basis that they may contained privileged materials and it would take a substantial amount of time to search them.
4. d) The purpose for which the disclosure was sought was irrelevant – even if disclosure meant that the documents became viewable by the other claimants.

The first claimant was in possession of various documents containing instructions to and advice from Mr Robert Walker QC (as he then was) sought and received by the trustee between 1988 and 1992. The claimants asserted this amounted to a collateral waiver of privilege; TW rejected this analysis.

Grampian Trust Company Limited (Grampian) had previously acted as trustees of one of the settlements – the Willards settlement. In 2003 Grampian ceased to be trustee of the Willards settlement. The present trustee is Yuills Investments Australia Pty Limited (Yuills), a company owned and controlled by the claimants. The claimants asserted that the right to claim privilege now vested in Yuills, and Grampian were no longer able to assert privilege in respect of the Willards settlement.

TW argued that the legal advice in question was obtained by Grampian for itself as trustee, so the LPP continues to belong to Grampian. Grampian and Yuills are separate legal persons. Grampian has a continuing right to assert its right to LPP, which Yuills, as the successor trustee of the Willards settlement, cannot unilaterally waive.

The third issue

The claimants submitted that TW had breached its obligations under the DPA 1998 by refusing to carry out what it believed to be reasonable and proportionate searches. The onus was on TW to provide specific evidence of the disproportionate effort that would be incurred in relation to each of the steps requested, rather than just generally assert that it would be disproportionate.

In response, TW relied upon on s8(2) of the DPA 1998, and argued that they had done all that was required of them under the DPA 1998.

The fourth issue

A number of the documents provided by TW had been redacted. TW submitted that a requester under a SAR is only entitled to disclosure of their own personal data. To the extent that a document contains information that is not the requester ‘s personal data, it is permissible for the data controller to redact that information, and is sometimes necessary (such as when it constitutes personal data relating to another individual).

The claimants alleged that the scope of this redaction was inconsistent, unjustified and incorrect. They criticised the redaction by TW of authors and senders of documents, where the identity of the person expressing it is part of the personal data as defined in s1(1) of the DPA 1998, or where disclosure would be necessary to make the personal data intelligible.

The trial judge determined this issue by examining a sample of the redacted documents that had been provided to the claimants by TW.

Held

On the first issue:

1. (1) The thirty-five paper files were a ‘relevant filing system ‘ and should be searched for personal data.
2. (2) Determining whether data was held in a ‘relevant filing system ‘ required the court to consider whether three separate and cumulative elements were present:
   1. a. The data has to be structured by reference to specific criteria;
   2. b. The data has to be ‘related to individuals ‘; and
   3. c. Specific criteria must enable the data to be easily retrieved.

1. (3) In this case, the fact that the files relate to trusts in which one or all of the claimants are potential beneficiaries was sufficient to meet the second criteria.

On the second issue:

1. (4) Where a legal adviser provides legal advice to a client, the privilege belongs to the client and cannot be waived by the legal adviser on the client ‘s behalf. TW were therefore entitled to claim LPP over the documents which were subject to legal advice privilege between TW and their client, Grampian, the trustee of the Glenfinnan settlement.
2. (5) As a matter of English trust law, in appropriate circumstances a beneficiary is entitled to assert that privilege is joint, as between the beneficiary and the trustee.
3. (6) TW were entitled to rely on LPPE against the first claimant, as, applying the proper law of the trust, the first claimant did not have any trust law rights which cut across, limited or qualified the trustee ‘s assertion of LPP.
4. (7) Following a change of trustee, the right to assert or waive privilege pertaining to advice obtained by the outgoing trustee is transferred to the new trustee, who is entitled to waive that privilege. Where Grampian had been replaced as trustee by Yuills, Yuills were entitled to waive privilege (and were found to have done so).
5. (8) For a collateral waiver to be triggered, the material said to trigger the waiver has to be deployed in court, or at the very least in contemplation of court proceedings. In this case, the disclosure could not be said to have amounted to a collateral waiver of privilege.
6. (9) The date from which litigation privilege could be claimed remained 18 February 2014. Documents dated prior to that should be disclosed, insofar as they contain the claimants ‘ personal data, and subject to the to the extent that they can be withheld on the grounds of legal advice privilege)
7. (10) Obiter: The fact that the first claimant may show disclosed materials to the second and Third claimants who were not themselves entitled to disclosure of them, was not a reason to restrict the first claimant ‘s rights of disclosure if her personal data under the DPA 1998. The purpose for which a party requests data does not provide a reason for refusing the request.

On the third issue:

1. (11) In assessing what is proportionate, it is relevant to consider the kind of benefit that the supply of information might bring to the data subject. The purpose of the right to make a SAR is not to provide individuals with an additional route to obtaining disclosure for the purposes of litigation. The purpose of this right is to protect individual privacy, by enabling individuals to ascertain whether their personal data is being processed in a manner consistent with DPA 1998.
2. (12) The search carried out by TW was generally found to be proportionate, but they were ordered to carry out some of the further searches that the claimants had sought, as they had not demonstrated that these would involve disproportionate effort to conduct.

On the fourth issue:

1. (13) In some instances the redaction went further than it ought to have done. TW were ordered to review their other redactions and apply the principles arising from the judge ‘s examination of the samples.

JUDGMENT ANDREW HOCHHAUSER QC: Introduction [1] This is the remitted hearing of the claimants’ part 8 claim under s7(9) of the Data Protection Act 1998 (the DPA 1998) seeking declarations that the first defendant, Taylor Wessing LLP (TW), has failed to comply with data subject access requests (DSARs) made on 4 August 2014 and orders …

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