The Court of Appeal's ruling in Dawson-Damer v Taylor
Wessing offers beneficiaries rights of access to personal data held
by trustees and their legal advisers. This is a landmark case in
which our clients, the claimants, obtained a judgment that
clarifies the provisions of the Data Protection Act and provides
individuals with greater access to confidential information held on
them by English solicitors.
In the recent case of Dawson-Damer v Taylor Wessing, the Court
of Appeal issued a ruling about the right of beneficiaries who are
Data Subjects under the Data Protection Act (DPA) to personal data
held by the London-based solicitors for the trustees.
The DPA is the United Kingdom's implementation of the EU
Data Protection Directive (Directive 95/46/EC), which is designed
to protect the privacy of all personal data collected for or about
EU citizens, especially with regard to the processing, use or
exchange of such data. It also provides a right of access of
"Data Subjects" to their personal data held by "Data
An individual's right to access data is regarded as a
fundamental right, sufficient to require a data controller to
provide full details of any personal data held about the subject.
The DPA sets out a number of exemptions to that right, including a
Legal Professional Privilege (LPP) exemption: if a document, or the
data it contains, are privileged against the applicant, the
document (or data) need not be disclosed. Unless one of the
relevant exemptions is engaged, a data controller is obliged to
comply with the request and provide the applicant with his or her
In Dawson-Damer v Taylor Wessing, 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.
Some of the fiduciaries disclosed relevant information, but
Taylor Wessing refused to do so on the following grounds:
All of the documents in their
possession were protected from disclosure by LPP, which should be
interpreted widely to include more restrictive interpretations
under foreign law.
Reviewing their files would involve
The Court should not order disclosure
when the requesting individual has a "collateral reason"
for wanting the data—e.g., to obtain disclosure for the
purpose of litigation.
The Court of Appeal rejected all three arguments and held as
Not all documents in lawyers'
file would be privileged. It was incumbent upon the lawyers to
inspect their files and determine which documents were privileged
and which were not. The LPP exemption would extend only to LPP as
it is understood by English law; in particular, the Court should
not have regard to foreign law on privilege and should not extend
the exemption to data which may be "confidential" under
principles of trust law (e.g., under the rule in Schmidt v
Rosewood) but is not privileged.
Taylor Wessing is obliged to explain
why it considers that an inspection of the relevant files would
involve disproportionate effort; simply asserting this without
putting forward evidence in support of its position was not
The motivation of a Data Subject is
not prescribed by the DPA, and the DPA does not contain an
exemption for "collateral purpose". The Court of Appeal
accepted that individuals may have a number of reasons for wanting
to receive their personal data, and held that it was inappropriate
to deny them this important right by reason of their perceived
This is a landmark case which provides trust beneficiaries a
right to access information which may not be made available to them
under the established trust law routes.
It is also a wake-up call for lawyers and their clients, whether
fiduciaries, employers or corporations. Data controllers must take
care to understand the extent and limits of LPP, and to ensure that
they comply with their duties under the DPA on the receipt of a
Subject Access Request. The position under the DPA is likely to be
transformed further in May 2018, when the General Data Protection
Regulation will come into force (Brexit notwithstanding) and
introduce greater DPA compliance burdens on persons who are not
resident in the United Kingdom but wish to offer goods or services
to individuals in the United Kingdom.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Up until the recent decision of the Inner House of the Court of Session in Hoe International Limited v Anderson & Aykroyd  CSIH 9 if a contract set out strict conditions on how a notice should be served...
An assignment of rights under a contract is normally restricted to the benefit of the contract. Where a party wishes to transfer both the benefit and burden of the contract this generally needs to be done by way of a novation.
The amount of information contained in arbitration clauses varies greatly from contract to contract. Some parties, in their arbitration clauses, specifically state the rules to be applied, the number of arbitrators (and sometimes the requisite qualification and experience of these arbitrators), the language of the arbitration proceedings, the location of hearings and the seat of arbitration.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).