Dawson - Damer & Ors v Taylor Wessing LLP

The legal professional privilege exemption from a subject access request covers only information privileged under the law of a part of the United Kingdom. It does not extend to material which a trustee may withhold from beneficiaries under trust law.

The data controller bears the burden of proving disproportionate effort. The assessment may encompass searching for, identifying and supplying the data. It balances the potential benefit to the data subject against the means required for compliance.

A collateral intention to use the information in litigation does not automatically bar an enforcement order under section 7(9) of the Data Protection Act 1998. The discretion remains general, although an abuse of process may justify refusal.

The appellants served subject access requests on Taylor Wessing LLP, solicitors for the trustee of Bahamian trusts, seeking personal data held about them. The requests followed their challenge to substantial appointments from one trust and preceded proceedings against the trustee in The Bahamas.

Taylor Wessing asserted legal professional privilege. HHJ Behrens dismissed the appellants’ enforcement application in [2015] EWHC 2366 (Ch). He treated the exemption as extending to documents which the trustee could withhold under Bahamian trust law, found further searches disproportionate, and declined relief because the information was sought for use in the Bahamian proceedings.

The appeal concerned the scope of the privilege exemption, the meaning of disproportionate effort, and the relevance of a litigation-related collateral purpose to the section 7(9) discretion.

1. Appeal allowed unanimously and matter remitted to the Chancery Division. Arden LJ gave the judgment, with which David Richards and Irwin LJJ agreed.

2. The exemption in paragraph 10 of Schedule 7 to the Data Protection Act 1998 applies only where legal professional privilege could be maintained under the law of a part of the United Kingdom. Parliament exercised the member-state option in article 13(1)(g) of Directive 95/46/EC. The protected privilege was therefore one recognised by domestic law. The exemption did not incorporate foreign rules merely because they produced an analogous right to resist disclosure.

3. A trustee’s right to withhold documents from beneficiaries is juridically distinct from legal professional privilege. The court’s supervisory jurisdiction over trusts, and the stricter protection afforded by section 83 of the Bahamian Trustee Act 1998, did not bring such documents within the statutory exemption. Taylor Wessing’s status as the trustee’s solicitor created no additional exemption, although it remained obliged to assert any privilege properly belonging to its client.

4. Section 8(2) permits difficulties arising throughout the compliance process, including searching and identifying data, to be considered. The evaluation balances the potential benefit of supplying the information against the means needed to find and supply it. The data controller bears the burden of proving disproportionate effort. Taylor Wessing had supplied virtually no evidence of its searches, had not established what material it held or devised a plan for compliance, and had not discharged that burden.

5. The discretion under section 7(9) is general and untrammelled. Neither the Act nor the Directive creates a rule barring enforcement because the requester also intends to use the data in litigation. Durant v Financial Services Authority [2004] FSR 573 concerned the limits of personal data and did not impose such a restriction on the enforcement discretion. A collateral purpose does not ordinarily constitute abuse of process, although an actual abuse could be addressed by the court.

6. The requests were valid and the efforts to comply had been inadequate. An enforcement order was therefore appropriate. Outstanding questions, including whether relevant data were held within a qualifying filing system and whether particular documents were privileged under English law, were remitted.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The court rejected the High Court’s construction of the privilege exemption and its conclusions on disproportionate effort and collateral purpose. The matter was remitted to the Chancery Division: [2017] EWCA Civ 74.
2. High Court, Chancery Division: HHJ Behrens dismissed the application to enforce the subject access requests, holding that the exemption extended to documents protected from disclosure under Bahamian trust law, that further searching would be disproportionate, and that relief should be refused because of the intended use in Bahamian proceedings: [2015] EWHC 2366 (Ch).