In the case of Dawson-Damer & Ors v Taylor Wessing LLP [2017] EWCA Civ 74 (16 February 2017) the Court of Appeal has considered subject access requests made by beneficiaries to trustees’ solicitors under the Data Protection Act 1998, and the grounds that could be given to refuse such requests.
The likely impact of the decision is to encourage beneficiaries to make subject access requests to their trustees and their lawyers. Given the maximum cost of £10 for doing so, this seems to be a cost effective way of forcing opponents into potentially onerous searches of documents they hold which will be expensive, time-consuming and may produce documents the trustees may not want the beneficiaries to have. As such subject access requests are likely to become a useful tool in trust litigation for aggrieved beneficiaries.
Dawson-Damer & Ors v Taylor Wessing LLP – Case facts
In summary the facts of the case were:
- The Claimants were beneficiaries under various Bahamian trusts. The Defendant was a firm of solicitors who acted for the trustees and who therefore held documents relating to the trust and personal data about the beneficiaries.
- The beneficiaries made subject access requests under the Data Protection Act 1998 to the trustees’ solicitors. They considered that the only documents that may be withheld were those obtained for the purpose of litigation between the trustees and the beneficiaries under English law.
- The solicitors simply refused to provide any documents on the grounds that:
- they was covered by legal professional privilege as they did not have to be disclosed under Bahamian trust law;
- doing so would involve a disproportionate effort; and
- the Claimant’s motive was to use the information in legal proceedings in the Bahamas.
- The beneficiaries applied to the court for an order forcing the Defendants to comply with their requests.
- The court agreed at first instance with the Defendants and dismissed the application. The beneficiaries appealed and the Court of Appeal considered the three grounds for refusal to comply put forward by the solicitors again.
The Court of Appeal’s overruled the Judge and their conclusions on the three Issues are in summary as follows:-
Issue one
The Legal Professional Privilege exception to providing documents is to be narrowly construed and applies only to documents which carry legal professional privilege for the purposes of English Law.
Issue two
The solicitors had not shown that to comply with the request would involve “disproportionate effort” as all they had done so far was to review their files. They were not able to say that it would not be cost or time effective to deal with the requests
Issue three
The Judge was wrong to decline to enforce the request because the beneficiaries intended to use the information obtained pursuant to it in their Bahamian proceedings. The beneficiaries’ intentions were irrelevant.
As a result trustees and their solicitors will be unlikely to be able to fob off beneficiaries who make subject access requests and they must be ready to take such requests and their obligations as data controllers seriously, despite the significant burden this may place on them. Beneficiaries may therefore be able to use this to their advantage in preparing their case.
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