March 30, 2020

The claimants were Mrs Ashley Dawson-Damer and her two adopted children. The defendant, Taylor Wessing LLP, is a firm of solicitors who acted for the trustee of a number of Bahamian trusts. Mrs Dawson-Damer was a beneficiary of one such trust (known as the Glenfinnan Settlement) and, together with her children, was the beneficiary of another such trust.

The underlying dispute concerned the appointment of funds by Taylor Wessing’s client from the Glenfinnan Settlement to be held in four new discretionary trusts. Mrs Dawson-Damer and her children asserted that the appointments were invalid.

In August 2014, the claimants served a subject access request (SAR) on Taylor Wessing under s 7(2) of the Data Protection Act 1998 seeking personal data relating to them held by Taylor Wessing as solicitors for the trusts. Taylor Wessing responded by saying that the data held by them was exempt from the subject access provisions of the DPA by virtue of paragraph 10 of Schedule 7, as it consisted of data in respect of which a claim to legal professional privilege applied (the LPP Exception).

The claimants applied for an order compelling Taylor Wessing to comply with their SAR. In August 2015, the High Court declined to exercise its discretion under s 7(9) of the DPA and refused to make such an order. The Court of Appeal allowed the claimants’ appeal finding that the LLP Exception applied only to documents that carried legal professional privilege for the purposes of English law. This did not include documents which the trustee could refuse to disclose to the beneficiaries under Bahamian trust law. The Court of Appeal remitted the matter to the High Court to decide whether: (i) Taylor Wessing held data on a filing system of the kind to which the DPA gives access; and (ii) any particular document(s) carried legal professional privilege under English law. If there was a dispute over this, the court would have power under s 15 of the DPA to examine the material.

Back in the High Court, the judge held that the paper files maintained by Taylor Wessing, before it moved to electronic files in 2005-2008, were a relevant filing system for the purposes of s 1(1) of the DPA. The judge also held that Taylor Wessing could rely on the LLP Exception in respect of any particular documents containing the claimants’ personal data.

The claimants appealed against the LLP Exception finding and Taylor Wessing appealed the decision on whether its paper files constituted a relevant filing system.

On the LLP Exception issue, the claimants argued that Taylor Wessing could not rely on LPP in relation to data to which litigation privilege did not attach because there was “joint privilege” as between Mrs Dawson-Damer, as a beneficiary of the Glenfinnan Settlement, and Taylor Wessing’s client as the trustee of the trust. Taylor Wessing maintained that the availability of “joint privilege” depended on Mrs Dawson-Damer’s rights as a beneficiary of the Glenfinnan Settlement and that Bahamian law was in point because the governing law of the Glenfinnan Settlement was Bahamian law.

Bahamian law provides that a trustee is not to be compelled by any process of discovery or inspection or under any equitable rule or principle to disclose or produce to any beneficiary any document (including legal advice) relating to the exercise of any discretion of the trustee.

The judge had held that “joint privilege” would arise under “English trust law”, but that Bahamian trust law meant that, in the circumstances of this case, there could be no “joint privilege”.

The Court of Appeal arrived at a different conclusion to the judge, finding that “joint privilege” arises as a matter of procedural law, rather than trust law. Whilst “joint privilege” might have its origins in authorities concerned with trusts, it said, it was not part of trust law; a principle of procedure and evidence had evolved. First, the courts have distinguished disclosure in litigation from a beneficiary’s rights under trust law in a number of the more modern authorities. Secondly, it was significant that “joint privilege” has been recognised in contexts other than trusts; the fact that it applies as between shareholder and company was especially important. In short, the issue was appropriately characterised as procedure and was therefore governed by English law, not Bahamian law. No positive case was made to the effect that developments in English law had served to negate or limit the claimants’ “joint privilege” in a material respect. Therefore, there was no reason to doubt that “joint privilege” applied in the circumstances.

On the data protection point and the meaning of “relevant filing system”, the Court of Appeal noted that in Case C-25/17 Tietosuojavatuutettu ECLI:EU:C:2018:551, the CJEU found that the test is whether the data is structured according to specific criteria thereby enabling the data to be easily retrieved.

The Court of Appeal also referred to the “temp test” set out in the ICO’s guidelines, which advises organisations to ask whether, if they employed a temporary administrative assistant (a “temp”), would they be able to extract specific information about an individual from the manual records without any particular knowledge of the type of work or the documents held?

In the Court of Appeal’s view, the questions to be asked were: (i) are the files a “structured set of personal data”? (ii) are the data accessible according to specific criteria? (iii) are those criteria “related to individuals”? and (iv) do the specific criteria enable the data to be easily (or “readily” as the DPA puts it) retrieved?

Taylor Wessing’s evidence was that extracting any personal data from the files in question would require an individual to review every page of the 35 files. The judge had relied on evidence that a trainee lawyer and an associate solicitor had in fact done this and had been able to extract personal data from the files.

The Court of Appeal said that that was an incorrect approach. The “ready access” required must be enabled by the criteria, i.e. by the structure of the files. If access to the relevant data requires the use of trainees and skilled lawyers turning the pages of the files and reviewing the material identified, that was a clear indication that the structure itself did not enable ready access to the data. In fact, the 35 files were completely unstructured beyond their chronological compilation under the description “Yuills Trusts”. Therefore, the judge had erred in his assessment. Further, the evidence relied on by the judge could not be regarded as satisfying the “temp” test. Therefore, the 35 files were not a “relevant filing system”.

The appeal was allowed. (Mrs Ashley Judith Dawson-Damer v Taylor Wessing LLP [2020] EWCA Civ 352 (11 March 2020) — to read the judgment in full, click here).