ASHLEY JUDITH DAWSON-DAMER v TAYLOR WESSING LLP

Under Data Protection Act 1998, the subject-access right does not provide a general route to obtain documents for use in litigation. The court may treat information as exempt where a claim to legal professional privilege could be maintained in the relevant proceedings, including proceedings governed by foreign law. A search may be unreasonable and disproportionate where it requires skilled lawyers to review extensive files and determine privilege under uncertain foreign law. The section 7(9) discretion is general and untrammelled, but arises only after a contravention of the Act is established. Relief may also be refused where the request’s real purpose is litigation disclosure and the foreign court is the appropriate forum.

The claimants made subject-access requests to their solicitors, who acted for the trustee of a Bahamian discretionary settlement. The requests followed a dispute concerning substantial appointments from the settlement and related proceedings in the Bahamas.

The solicitors disclosed some personal data but relied on legal professional privilege and paragraph 10 of Schedule 7 to the Data Protection Act 1998. They also contended that searching historical files and separating privileged from non-privileged material would be unreasonable and disproportionate. The claimants sought declarations and orders under section 7(9). The issues included the privilege exemption, the search obligation, the filing system, and the court’s discretion.

1. Application dismissed. Costs and permission to appeal had not yet been argued. The judge’s views on those matters were provisional.
2. Paragraph 10 of Schedule 7 was construed purposively. It covered documents in respect of which the trustee could resist compulsory disclosure in the Bahamian proceedings. It was not confined to English privilege or English trust-law disclosure rules.
3. The subject-access regime protects privacy and data accuracy. It is not a general discovery mechanism for litigation. The court applied Durant v FSA [2003] EWCA 1746.
4. Section 7(9) creates a general and untrammelled discretion, but it can be exercised only where the data controller has failed to comply with a request in contravention of the Act. Requiring the solicitors to search the files and determine privilege under uncertain Bahamian law was not reasonable or proportionate.
5. The filing-system issue did not arise because no search was required. The provisional view was that further evidence might show that the manual files were not a relevant filing system under section 1(1).
6. Alternatively, relief would have been refused in the court’s discretion. The requests were principally intended to obtain material for the Bahamian proceedings, and the Bahamian court was the proper forum to determine disclosure between trustee and beneficiary.

First-instance application under section 7(9) of the Data Protection Act 1998. The judgment records that permission to appeal might be appropriate, but no appeal decision is stated.