Ashley Judith Dawson-Damer and Others v Taylor Wessing LLP and Others

JurisdictionEngland & Wales
CourtChancery Division
JudgeJudge Behrens
Judgment Date06 August 2015
Neutral Citation[2015] EWHC 2366 (Ch)
Date06 August 2015
Docket NumberCase No: HC-2015000177

[2015] EWHC 2366 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

His Honour Judge Behrens sitting as a Judge of the High Court

Case No: HC-2015000177

Between:
(1) Ashley Judith Dawson-Damer
(2) Piers Dawson-Damer
(3) Adelicia Dawson-Damer
Claimants
and
(1) Taylor Wessing LLP
(2) Michael Morrison
(3) James Burns
Defendants

Jonathan Swift QC and Richard Wilson (instructed by McDermott Will & Emery UK LLP) for the Claimants

Simon Taube QC (instructed by Taylor Wessing LLP) for the First Defendant

Hearing dates: 22 and 23 July 2015

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

John Behrens

Judge Behrens
1

Introduction

1

This is an application under section 7(9) of the Data Protection Act 1998 ("the 1998 Act"). The claimants are Ashley Judith Dawson-Damer ("Ashley"), and her children Piers Dawson-Damer ("Piers") and Adelicia Dawson-Damer ("Adelicia"). The application is made against the law firm Taylor Wessing LLP ("TW").

2

. The proceedings arise out of subject access requests made on behalf of the Claimants on 4 August 2014. TW have refused to supply any documents pursuant to those requests.

3

. TW are the London solicitors to Grampian Trust Company Limited ("Grampian"). Grampian is resident and incorporated in the Bahamas. It is the sole trustee of a discretionary settlement dated 30 June 1992 known as the Glenfinnan Settlement. The governing law of the Glenfinnan Settlement is the law of the Bahamas. TW and/or its predecessor firm have provided advice to Grampian since 1992. From about 1987 TW's predecessor provided advice to the predecessor trust.

4

. There are currently proceedings in the Supreme Court in the Bahamas between Ashley and Grampian.

5

. TW resist the application. The principal ground for resistance is that Grampian is entitled to rely on legal professional privilege in respect of the majority of the documents. This privilege attaches to advice and requests for advice going back at least 30 years in addition to documents in relation to the Bahamian proceedings. The privilege has not been waived by Grampian. It would be disproportionate and/or unreasonable to expect TW to carry out a search to determine which of the documents are privileged and which are not. The extent of the privilege is a matter of Bahamian law and one which will have to be determined in the Bahamian proceedings. It is a matter upon which differing views have been expressed by Bahamian lawyers. In any event the Court should, as a matter of discretion, decline to make an order. The application has been brought for the purpose of obtaining documents for use in the Bahamian proceedings. The Court should permit the Bahamian Court to determine which documents (if any) are disclosable. As a subsidiary point he submitted that as TW had only had an electronic filing system from a date between 2005 and 2008 information relating to the Claimants for any period prior to the electronic filing was not readily accessible.

6

. Mr Swift QC on behalf of the Claimants accepts that the 1998 Act contains an exemption in respect of data in respect of which a claim for legal professional privilege could be made in legal proceedings. He contends that the exemption should be construed narrowly. It does not extend to the rules of equity in England and Wales under which trustees are not required to disclose trust documents to beneficiaries. Equally it does not extend to local Bahamian rules which apply to disclosure in respect of trust litigation in the Bahamian courts. He submits that as Ashley is a beneficiary under the Glenfinnan Settlement any privilege attaching to Grampian resulting from advice taken is a joint privilege with the result that Grampian cannot rely on the privilege against Ashley. Mr Swift QC invited me to take a narrow view of the discretion afforded to the Court in s 7(9) of the 1998 Act. In particular he drew my attention to the large number of exceptions in Part IV and Schedule 7 and of the power of the Secretary of State in s 38 to make further exceptions. He submitted that the Court should not, as a matter of principle, use its discretionary powers under s7(9) to make further exceptions. In general terms he submitted that if the data was not within one of the exemptions the Court should normally order its disclosure. He accepted that one of the motives for making the subject access requests may have been to obtain documents which might be of use in the Bahamian proceedings but he contended that the Claimants could also verify if the data was correct and, if necessary, take steps to have it corrected.

7

. Mr Swift QC was also critical of the paucity of the evidence put before the Court on behalf of TW. He made the point that TW must hold some data that was not covered by legal professional privilege. No attempt has been made to identify that data. He invited the Court, if necessary, to use its powers under s 15(2) of the 1998 Act to require that data to be made available for its own inspection. Furthermore in so far as the documents were in a manual filing system he submitted that insufficient evidence had been supplied to indicate whether or not the information was readily accessible.

2

The facts

8

. There is little (if any) dispute as to the relevant facts which are contained in the witness statements of Ms Robertson and Ms McGuigan who are partners in the firms of the Claimants' solicitors, McDermott Will & Emery LLP ("MWE") and TW respectively. Much of the following summary is taken from the summary which appears in the skeleton argument of Mr Taube QC.

Background

9

. The trust funds were originally derived from the fortune of G.S. Yuill. G.S. Yuill died in Australia in 1917. From 1973 onwards a Bahamian trust company called Arndilly Trust Company Limited ("Arndilly") held the funds under a Bahamian settlement ("the 1973 Settlement"). The beneficiaries of the 1973 Settlement were the legitimate descendants of G.S Yuill's grandson Viscount Carlow, who died in 1944 on war service, and their respective spouses. Those beneficiaries included:-

1. Viscount Carlow's two sons George ("George"), who is now Lord Portarlington, and John Dawson-Damer ("John"), who died in 2000;

2. George's wife Davina and their four children, Charles, Henry, Edward and Marina, and their grandchildren; and

3. John's second wife Ashley, but not their adopted children, Piers and Adelicia.

10

. The majority of the beneficiaries lived and still live in Australia.

The 1992 Resettlement

11

. In 1992 the 1973 Settlement funds were resettled on the trustees of four new discretionary settlements, of which Grampian was the original trustee in each case, including:-

1. the Willards Settlement, which was for the benefit of John and his family and held about 25% of the funds;

2. two trusts, which were for the benefit of George and his family and together held about another 25% of the funds; and

3. the Glenfinnan Settlement, which was originally for the benefit of George, Davina, John, Ashley, their spouses and their legitimate, non-adopted issue, and which held about 50% of the funds.

12

. At the time of the restructuring in 1992 it was expressly contemplated that the funds in the Glenfinnan Settlement were intended to provide long term funds for the next generation of the family beyond George, John and their wives. In 2007 George and his wife ceased to be beneficiaries.

13

. Both before and shortly after John's death in 2000 John and Ashley asked Grampian to make distributions for the benefit of them and their adopted children from the Glenfinnan Settlement funds, even though their children were not beneficiaries. But the trustee declined to do so. Ashley then asked Grampian to retire as trustee of the Willards Settlement and new trustees were appointed.

The 2006 and 2009 Appointments

14

. In December 2006 and March 2009 Grampian made substantial appointments of funds from the Glenfinnan Settlement to trustees to hold upon new discretionary trusts, principally in favour of George's children and remoter issue. In December 2006 Grampian appointed three funds to be held by trustees in Bermuda upon discretionary trusts, primarily in favour of (a) Charles and his family, (b) Henry and his family and (c) Edward and his family; and these three trusts are known as the Came, Hewish and Emo Settlements. In March 2009 Grampian declared that it held further funds upon discretionary trusts, primarily in favour of George's children and their families; and this trust is known as the Moray Settlement.

15

. The value of the funds appointed totalled approximately $402 million leaving only about $9 million in the Glenfinnan Trust.

Challenge to the 2006 and 2009 Appointments

16

In 2013 and early 2014 Grampian (through TW) provided Ashley and her children with information about the accounts of the Glenfinnan Settlement and the appointments that Grampian had made in December 2006 and March 2009.

17

. On 18 February 2014 MWE wrote a long 15 page letter to TW. They asserted that Grampian's appointments made in December 2006 and March 2009 were invalid, and also challenged the validity of the 1992 restructuring leading to the 1973 Settlement. In section 6 of the letter they invited Grampian and the trustees of the four new settlements to participate in a mediation. In section 7 they invited the trustees to disclose a number of documents.

18

. On 9 July 2014 TW on behalf of Grampian, sent MWE a detailed reply to the allegations of invalidity, answering all the factual allegations made by MWE. Grampian declined the offer of a mediation but offered to meet Ashley.

The Subject Access Requests

19

On 4 August 2014 MWE sent subject...

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