Dawson-Damer v Taylor Wessing LLP

For the legal professional privilege exemption in paragraph 10 of Schedule 7 to the Data Protection Act 1998, privilege is assessed by reference to English law in hypothetical English proceedings. Joint privilege is a rule of procedure and evidence, not trust law, so the foreign law governing the trust does not determine its scope.

A manual filing system qualifies only where its structure and criteria enable specific personal data to be readily retrieved. Actual retrieval by skilled lawyers, including page-by-page review, is insufficient. Chronological paper files held under a general trust description therefore did not constitute a relevant filing system.

The claimants sought relief under section 7(9) of the Data Protection Act 1998 concerning subject access requests made to their former solicitors, Taylor Wessing LLP. An earlier appeal, reported at [2017] EWCA Civ 74 and [2017] 1 WLR 3255, held that the legal professional privilege exemption was confined to English legal professional privilege and remitted the remaining issues.

The Deputy High Court Judge later held that Taylor Wessing’s paper files were a relevant filing system and that legal professional privilege could be claimed under Bahamian trust law. The appeals concerned whether joint privilege was governed by English procedural law and whether the paper files satisfied the statutory definition.

Both appeals were allowed.

1. Legal professional privilege. The earlier appeal established that paragraph 10 of Schedule 7 to the Data Protection Act 1998 applies only where the data controller could resist disclosure on the ground of legal professional privilege under English law in hypothetical English proceedings. The question was therefore one of English procedure and evidence, not the trust law governing the Glenfinnan Settlement.
2. Joint privilege originated in trust cases but is not an incident of trust law. It is a wider procedural principle applying where parties have a joint interest in the subject matter of a communication when it comes into existence. Its recognition between companies and shareholders supported that characterisation. The scope of joint privilege was consequently governed by English law as the hypothetical lex fori. Section 83(8) of the Bahamian Trustee Act 1998 was irrelevant. Joint privilege applied, and Taylor Wessing could not rely on the exemption against Ashley in respect of the relevant material.
3. The fact that legal professional privilege is a fundamental human right did not answer whose privilege was in issue. Nor did possible reasons for refusing disclosure in trust litigation, such as irrelevance or protection against fishing, affect the operation of the statutory privilege exemption.
4. Relevant filing system. In light of Tietosuojavatuutettu ECLI:EU:C:2018:551, the questions were whether there was a structured set of personal data, whether the data were accessible according to specific criteria, whether those criteria related to individuals, and whether they enabled the data to be easily or readily retrieved. The more restrictive requirements stated in Durant v Financial Services Authority [2003] EWCA Civ 1746 could not be maintained in full.
5. A general criterion may relate to individuals, but there must be a causative link between the criterion and ready access to the data. Ready access must be enabled by the structure of the files. The ability of trainees or skilled lawyers to extract data by turning pages and reviewing documents showed that the structure itself did not provide ready access. The 35 files, arranged chronologically under the general description “Yuills Trusts”, were not a relevant filing system. Taylor Wessing’s extension of time was granted, and its appeal on this issue was allowed.

• Court of Appeal (Civil Division): The appeals from [2019] EWHC 1258 (Ch) were allowed on both the legal professional privilege and relevant filing system issues.
• High Court: The Deputy Judge held that the paper files were a relevant filing system and that legal professional privilege could be claimed in relation to certain data. He ordered further searches and review of redactions.
• Court of Appeal: In [2017] EWCA Civ 74, reported at [2017] 1 WLR 3255, the court confined the statutory privilege exemption to English legal professional privilege, rejected disproportionate effort and motive-based grounds relied upon below, and remitted the remaining issues.
• High Court: The initial application had been dismissed in [2015] EWHC 2366 (Ch).