Ashley Judith Dawson-Damer v Taylor Wessing LLP – Court of Appeal rules on legal professional privilege and “relevant filing system” in subject access dispute
Do paper files constitute a “relevant filing system” for the purposes of subject access requests (SARs)? Can legal professional privilege (LPP) be used to block a SAR made by a data subject that is owed a duty of “joint privilege” along with the lawyer’s primary client?The key takeaway
The Court of Appeal (CA) has clarified the test and associated questions to be considered when determining whether personal data held in a paper file is in a relevant filing system which must be searched on receipt of a SAR. The CA has also reiterated that joint privilege can arise as a matter of procedural law (rather than substantive trust law) and may restrict the availability of the LPP exemption in circumstances where a SAR is received from a jointly privileged data subject.
The claim relates to a discretionary trust settled for the benefit of the late John Dawson Damer, his brother Lord Portarlington and their respective spouses and children (the Trust). The Trust was governed by Bahamian Law. In 2006 and 2009, the trustee of the Trust, Grampian Trust Company Limited (the Trustee), appointed a substantial sum (US$402m) from the Trust into four new discretionary funds, in favour of Lord Portarlington and his descendants (the Appointments).
In 2014, Ashley Dawson-Damer, the widow of John Dawson-Damer, and her two adopted children (the Dawson-Damers), suspicious that the Appointments were influenced by animosity towards them, sought to challenge the validity of the Appointments and served SARs under the Data Protection Act 1998 (DPA 1998) on the Trustee’s solicitors, Taylor Wessing.
Taylor Wessing refused to provide the data requested in the SARs on the basis that the data was protected by the LPP exemption under the DPA 1998. The Dawson-Damers brought a claim against Taylor Wessing for relief.
The litigation has been long-running and following a previous CA hearing in 2017 (summarised in our 2017 Snapshots) around the scope of LPP and search obligations in response to a SAR, the case was remitted back to the High Court to determine whether (i) certain information, kept by Taylor Wessing in paper files, was exempt from disclosure because the paper files were not a “relevant filing system” for the purposes of DPA 1998 and (ii) Taylor Wessing could rely on LPP in respect of particular documents. Both parties ultimately appealed the High Court judgment.
The “second round” decisions
Relevant filing system
The High Court had found that the personal data, contained in 35 paper files arranged in chronological order and labelled with a description of the Trust could be easily retrieved, was held in a relevant filing system which Taylor Wessing was required to search.
The CA approached its determination by considering the relevant filing system test which is a “functional one of whether specific criteria enable the data to be easily retrieved” and setting out four relevant questions for establishing whether the criteria had been met: (1) are the files a structured set of data; (2) are the data accessible according to specific criteria; (3) are those criteria “related to individuals”; and (4) do the specific data criteria enabled the data to be easily (or readily) retrieved?
The CA found that the judge had erred in relation to the fourth question; ready access must be enabled by the criteria ie the structure of the files. The files were unstructured and the need to use a trainee and an associate to review the files page by page, with a senior lawyer to review for legal professional privilege, was a clear indication that the data was not easily retrievable. As such, the paper files were not a relevant filing system and Taylor Wessing was not obliged to search them.
Legal professional privilege
The High Court had accepted that “under English trust law, joint privilege would arise” as the Trustee had taken advice from Taylor Wessing for the benefit of the Trust, of which the Dawson-Damer’s were beneficiaries. However, as the Trust was governed by Bahamian trusts law, which enables a trustee to refuse to disclose information concerning the exercise of its fiduciary discretions, joint privilege was removed. On this basis, Taylor Wessing could claim LPP over particular documents protected by legal advice privilege between Taylor Wessing and the Trustee.
The CA disagreed with the High Court and found that “joint privilege” is not just a matter of trusts law but rather a matter of procedural law built on the principle that “privilege cannot be claimed in circumstances where the parties to the relationship have a joint interest in the subject matter of the communication at the time that it comes into existence”. Notably, joint privilege had been recognised in other contexts, such as between shareholder and company.
The question of whether privilege arose was therefore governed by English law (as the law of the country in which the action was brought). As there was no uncertainty under English law that joint privilege applies between the beneficiary and the trustee of a trust, Taylor Wessing could not rely on LPP even in relation to particular documents where joint privilege existed with the data subject.
Why is this important?
Rather than adopting a prescriptive definition, the CA has set out a set of questions to guide businesses in deciding whether the paper files are a relevant filing system. Although this case concerned DPA 1998, GDPR and the Data Protection Act 2018 define a “filing system” as “any structured set of personal data …” and it is arguable that the CA’s relevant filing system questions will also extend to obligations under the current data protection regime. With many businesses receiving an increasing number of SARs, this decision will be welcomed by those with paper files who will be comforted by the knowledge that they are not obligated to search unstructured files to extract data that is not easily retrievable.
The LLP/joint privilege points determined at this leg of the litigation are particularly technical and most relevant to trust law matters. Nonetheless, the CA clarified that joint privilege is a procedural law matter to be determined under English law and where a data subject is entitled to joint privilege with a lawyer’s primary client, even particular documents sought under a SAR cannot be withheld on the grounds of LPP.
Any practical tips?
Upon receipt of a SAR which relates to paper files, consider the CA’s four questions to decide whether you can legitimately limit your searches to exclude those particular files.
Where a SAR is received from a data subject with a relationship with the recipient (eg a company shareholder) and you are hoping to rely on LPP to withhold documents, make sure that you consider whether joint privilege will prohibit the availability of LPP protection.