Dawson‑Damer v Taylor Wessing LLP

The Court of Appeal allowed the appellants’ challenges on two main points. First, the court held that the question whether legal professional privilege (LPP) can be relied upon for the purposes of the LPP exemption in paragraph 10 of Schedule 7 to the Data Protection Act 1998 is governed by English procedural law (the lex fori) rather than by the governing law of the trust; consequently the Bahamian Trustee Act 1998 (section 83(8)) was immaterial to the availability of "joint privilege" in this English litigation. Second, the court held that the paper files held by Taylor Wessing under the client description "Yuills Trusts" did not form a "relevant filing system" within section 1(1) of the 1998 Act because the files lacked the requisite structure or criteria enabling the specific personal data to be readily or easily retrieved.

Key statutory provisions: Data Protection Act 1998 (section 1(1) definition of "relevant filing system"; section 7(1) and section 7(9) on subject access; paragraph 10 of Schedule 7 - the LPP exemption). Key authorities: the Court applied the CJEU decision in Tietosuojavatuutettu (C-25/17) on the meaning of a filing system and distinguished aspects of Durant v FSA; it also considered the authorities on joint or joint-interest privilege and the scope of beneficiaries' rights to trust documents (including Schmidt v Rosewood Trust Ltd).

Background and parties. The claimants (Mrs Ashley Dawson-Damer and her two children) sought disclosure from Taylor Wessing LLP of personal data in response to subject access requests made under the Data Protection Act 1998. The data related to long-standing trust arrangements (the 1973 Settlement and later resettlements) involving the settlor's descendants and the trustee Grampian Trust Company Limited, for whom Taylor Wessing acted. The claimants alleged that Taylor Wessing had failed to comply with section 7 requests, Taylor Wessing relying in part on legal professional privilege.

Procedural history. The matter had an interlocutory history: Judge Behrens dismissed the claim at first instance ([2015] EWHC 2366 (Ch)), the Court of Appeal allowed an appeal on points of law ([2017] EWCA Civ 74) and remitted issues to the Chancery Division. On remittal, Mr Andrew Hochhauser QC (sitting as a Deputy High Court judge) determined, among other things, that certain paper files were a "relevant filing system" and that Taylor Wessing could claim LPP over some material ([2019] EWHC 1258 (Ch)). Both sides appealed to the Court of Appeal: the claimants on the LPP point and Taylor Wessing on the filing-system point.

Nature of the application. Relief sought was an order enforcing subject access rights under section 7 of the 1998 Act and a determination whether exemptions applied, in particular the LPP exemption in paragraph 10 of Schedule 7. The court was asked to determine whether (i) Taylor Wessing could rely on LPP as a matter of English law in respect of material identified, and (ii) the 35 paper files held under the client heading "Yuills Trusts" amounted to a "relevant filing system" within section 1(1) of the 1998 Act.

Issues framed by the court. (i) Whether the LPP exemption is limited to documents privileged under English law and whether the Bahamian Trustee Act 1998 operated to defeat any English "joint privilege" claim; (ii) whether the paper files constituted a "relevant filing system" such that the 1998 Act obliged Taylor Wessing to search and disclose personal data contained therein; (iii) related issues as to waiver, searches and redactions.

Court’s reasoning and decision. On LPP the Court of Appeal concluded that "joint privilege" (or joint-interest privilege) is a principle of procedure and evidence governed by English law (the lex fori) rather than an incident of the foreign law of trusts; therefore the Bahamian Trustee Act (s.83(8)) did not prevent application of English joint privilege. The court held that, on the facts, the claimants could rely on joint privilege principles so that Taylor Wessing could not rely to the full extent upon LPP to withhold material from the claimants.

On the filing-system point, the court applied the CJEU’s functional test in Tietosuojavatuutettu (C‑25/17): a filing system is any structured set of personal data accessible according to specific criteria related to individuals so as to permit easy or readily accessible retrieval. The Court of Appeal found that the judge had erred by treating the practical success of searches (by skilled lawyers) as evidence that the files were a relevant filing system. The required "ready accessibility" must arise from the structure or indexing criteria themselves (the causative link), not from labour-intensive review by skilled staff. The paper files described simply as "Yuills Trusts" and arranged chronologically lacked the necessary structure to enable ready retrieval of specific individual-related data, so they were not a "relevant filing system" under section 1(1).

Implications and subsidiary findings. The court allowed both appeals. It held that English LPP principles apply to determine the paragraph 10 exemption, that the Bahamian Trustee Act did not alter that conclusion, and that the Judge’s factual assessment of the filing system was legally flawed because it failed to identify the necessary causal connection between structure and ready retrieval.

Appeal allowed. The Court of Appeal held that (1) the availability and scope of "joint privilege" for the purposes of the paragraph 10 exemption in Schedule 7 to the Data Protection Act 1998 is a question of English procedural law (lex fori) and not governed by the trust's governing law (so the Bahamian Trustee Act 1998 did not prevent a beneficiary relying on joint-interest privilege in English proceedings); and (2) the 35 paper files compiled under the heading "Yuills Trusts" were not a "relevant filing system" within s.1(1) of the 1998 Act because the files lacked the requisite structure or identifiable criteria enabling personal data to be readily or easily retrieved, so the Judge erred in ordering searches on that basis.

First instance: Judge Behrens (subject access application dismissed) [2015] EWHC 2366 (Ch). Court of Appeal allowed an earlier appeal on the scope of the LPP exemption and remitted issues for determination [2017] EWCA Civ 74. On remittal Deputy High Court Judge Andrew Hochhauser QC gave judgment on 17 May 2019 ([2019] EWHC 1258 (Ch)). The present appeals were heard in the Court of Appeal and decided by Lord Justices Floyd, Newey and Arnold ([2020] EWCA Civ 352).