February 20, 2017

The appellants were Mrs Ashley Dawson-Damer and her two adopted children. The respondent, 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.

In August 2014, the appellants served a subject access request (SAR) under s 7(2) of the DPA on Taylor Wessing seeking personal data relating to themselves 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 appellants applied to the court 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. Mrs Dawson-Damer and her children appealed the High Court decision.

The appeal raised three main issues:

• Extent of the LPP Exception: whether this Exception was limited to documents to which any privilege which attached was legal professional privilege under English law so that those documents were exempt from disclosure in legal proceedings in England as against the appellants, or whether (as the judge held) the LPP Exception also included any documents which the trustee could refuse to disclose to the beneficiaries under Bahamian trust law;
• Disproportionate effort: whether, if it were correct that the LPP Exception was limited to legal professional privilege under English law, any further search would involve “disproportionate effort” for the purposes of s 8(2) so that (as the judge held) Taylor Wessing would excused from doing so; and
• Section 7(9) discretion: whether (as the judge held) the judge would have been entitled to refuse to exercise the s 7(9) discretion in favour of the appellants because their real motive was to use the information in legal proceedings against the trustee.

Giving the lead judgment, Lady Justice Arden found that the LPP Exception applied only to documents that carried legal professional privilege for the purposes of English law. This did not include documents by virtue only of the fact that a trustee may refuse to disclose to a beneficiary pursuant to the right of non-disclosure under trust law. The DPA did not contain an exception for documents not disclosable to a beneficiary of a trust under trust law principles. The fact was that those documents were not within the LPP Exception, and no other exception was suggested.

Arden LJ also found that Taylor Wessing had not shown that to comply with the request would involve “disproportionate effort”, as all it had done so far was to review its files. In Arden LJ’s view, the correct approach was to examine what steps a data controller had taken, and then to ask if it would be disproportionate to require further steps to be taken to comply with the SAR. The burden of proof was on the data controller to show that it had taken all reasonable steps to comply with a SAR request, and that it could rely on any specific exemptions to refuse to provide data. In Arden LJ’s view, “disproportionate effort” must involve more than an assertion that it was too difficult to search through voluminous papers.

Finally, Arden LJ found that the judge was wrong to decline to enforce compliance with the SAR because the appellants intended to use the information obtained pursuant to it in their Bahamian proceedings. Arden LJ said that disclosure in litigation and disclosure under the DPA were not comparable and concluded that the court should not withhold relief under s 7(9) unless there were overriding reasons to do so. There were none here. The appeal was allowed. (Dawson-Damer v Taylor Wessing LLP [2017] EWCA Civ 74 (16 February 2017) — to read the judgment in full, click here).