The latest decision by the English Court of Appeal in the long-running case of Dawson-Damer v Taylor Wessing LLP  EWCA Civ 352 has again highlighted the thorny issue of a beneficiary's right of access, under data protection law, to information pertaining to the deliberations of trustees.
Dawson-Damer concerned a significant trust created under Bahamian law which had two beneficiaries, George and John. The trustee made appointments to a new trust for George's children which were challenged in 2015 in the Bahamian courts by the wife of the now deceased John, Ashley. Under Bahamian law, Ashley was not permitted access to the trustee's deliberations in relation to the appointments. The trustee had appointed the UK law firm Taylor Wessing to advise in relation to the trust and Ashley and her children also made subject access requests under UK data protection law to Taylor Wessing. These requests were presumably made in the hope that this would provide the information they were seeking to obtain in relation to the deliberations of the trustee. Taylor Wessing declined the request claiming legal privilege which led to further Court proceedings in which the Court of Appeal ordered disclosure. This position has been upheld in the most recent judgment which confirmed that legal advice obtained for the benefit of a trust cannot be withheld from a beneficiary where it forms part of a beneficiary's subject access request.
So would the same right of access be provided under Isle of Man data protection law? The short answer is that the right of access granted to Ashley under UK law would not be available under Isle of Man data protection legislation due to there being an additional exemption which could be relied upon by the data controller. In this regard, under paragraph 21 of Schedule 9 to the GPDR and LED Implementing Regulations 2018 it is expressly stated that personal data processed in connection with a trust (regardless of which jurisdiction's law is the proper law of the trust) are exempted from the disclosure provisions to the extent that the personal data consists of any information:
(a) which discloses the trustee's deliberations as to the manner in which the trustee has exercised a power or discretion or has performed a duty;
(b) which discloses the reason for any particular exercise of such power or discretion or performance of duty or the material on which such reason is likely to have been based;
(c) which relates to the exercise or proposed exercise of such power or discretion or the performance or proposed performance of a duty; or
(d) the disclosure, erasure or rectification of such, if done by the relevant data controller, would be contrary to a prohibition or restriction under Isle of Man law or the law of the jurisdiction of the trust.
Due to the above, trustees in the Isle of Man who instruct Isle of Man Advocates and who are seeking to preserve the confidentiality of information relating to the deliberations of trustees are in a stronger position due to the additional exemption which can be relied upon as a matter of Isle of Man data protection law.
Given the above, not only does the use of Isle of Man Advocates have benefits in terms of their knowledge and expertise of the jurisdiction and its differences in respect of trust law, but this case also illustrates that the Isle of Man has a small, yet potentially important, advantage to trustees as a jurisdiction and one which further compliments the Isle of Man's status as a leading offshore jurisdiction for trusts.
Originally published 07 July, 2020
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.