Dawson — Damer and Others v Taylor Wessing LLP The Information Commissioner (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Richards,Lord Justice Irwin |
| Judgment Date | 16 February 2017 |
| Neutral Citation | [2017] EWCA Civ 74 |
| Docket Number | Case No: A3/2015/3077 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 February 2017 |
[2017] EWCA Civ 74
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(Chancery Division)
HHJ Behrens sitting as a High Court Judge
HC-2015-000177 [2015] EWHC 2366 (Ch)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice David Richards
and
Lord Justice Irwin
Case No: A3/2015/3077
Jonathan Swift QC (instructed by McDermott Will and Emery LLP) for the Appellants
Simon Taube QC, Timothy Pitt-Payne QC and James MacDougald (instructed by Taylor Wessing LLP) for the Respondent
Anya Proops QC (instructed by the Information Commissioner) for the Intervener
Hearing dates: 16 – 17 November 2016
Judgment Approved
OVERVIEW OF THIS APPEAL
Appeal concerns a subject access request under the Data Protection Act 1998
The appellants are Mrs Ashley Dawson-Damer and her two children, Piers Dawson-Damer and Adelicia Dawson-Damer, who are the adopted children of Mrs Dawson-Damer and her late husband, Mr John Dawson-Damer. The respondent ("TW") is a firm of solicitors who act for the trustee of a number of Bahamian trusts. Mrs Dawson-Damer is a beneficiary of one (known as the Glenfinnan Settlement) and all the appellants have benefitted from another. TW no longer act for the trustee of any trust of which second and third appellants are beneficiaries. For the purposes of this judgment, it is sufficient to refer only to the Glenfinnan Settlement.
On 4 August 2014, the appellants served a subject access request ("SAR") ("the Request") under section 7(2) of the Data Protection Act 1998 (" DPA") on TW seeking personal data relating to themselves held by TW as solicitors for the trusts. The appellants considered that TW had not complied with their SARs and so they applied to the court for a declaration that TW had not complied with the Request and an order compelling TW to comply with their requests. The court has a discretion under section 7(9) DPA ("the section 7(9) discretion") whether to make such an order. By his order dated 6 August 2015, HHJ Behrens, sitting as a deputy Judge of the High Court of Justice, Chancery Division dismissed the application, and this appeal is against his order.
The Appendix to this judgment sets out the relevant provisions of the DPA, Directive 95/46/EC ("the Directive") which the DPA is designed to implement and section 83 of The Bahamian Trustee Act 1998, to which I refer in paragraph 16 and later paragraphs of this judgment.
Why the appellants served SARs on TW
Full details of the background are set out in the judgment of the judge, and so I only need to provide an outline of the circumstances in which the appellants served their Request.
In late 2013, the appellants learnt that, in 2006 and 2009, the trustee of the Glenfinnan Settlement had appointed some $402m from the Glenfinnan Settlement to new trustees to hold on new discretionary trusts for the benefit of the other discretionary beneficiaries, namely the children of the brother of Mrs Dawson-Damer's late husband. This left roughly $9m in the Glenfinnan Settlement. On 18 February 2014, the appellants' solicitors, McDermott Will & Emery LLP ("MWE"), challenged the validity of these appointments. It is common ground that the trustee was entitled to rely on litigation privilege following this letter.
On 9 July 2014, TW responded to the appellants' allegation and stated that it had "now had an opportunity to review the many files".
On 4 August 2014, the appellants' solicitors made the Request, seeking all data of which the appellants were the data subjects, enclosing the requisite fee.
On 11 September 2014, TW replied, stating that the personal data it held was covered by legal professional privilege, and therefore exempted from disclosure under paragraph 10 of Schedule 7 to the DPA ("the Legal Professional Privilege Exception").
On 30 September MWE wrote to TW stating that the appellants relied on the following principle
Opinions of Counsel which are taken by the trustees, and other instructions to and legal advice obtained from the trustees' lawyers for the guidance of the trustees and the discharge of their functions as trustees, and paid from the trust fund, are not privileged against the beneficiaries.
On 3 October 2014, TW again by letter asserted privilege, relying on Schmidt v Rosewood [2003] 2 AC 709.
On 13 October 2014, MWE replied, contending that the only privilege on which TW could rely was litigation privilege.
On 19 January 2015, the appellants began these proceedings, seeking a declaration that TW had failed to comply with their Request, and requesting an order requiring it to do so.
On 20 March 2015, Mrs Dawson-Damer also commenced proceedings in the Supreme Court of The Bahamas against Grampian Trust Company Limited ("Grampian"), a company incorporated and resident in The Bahamas and the sole trustee of the Glenfinnan Settlement. In those proceedings she challenged (among other matters) the validity of the 2006 and 2009 appointments. It is unnecessary to explain the steps that have been taken in those proceedings. Suffice it to say that they are ongoing.
Ms Ziva Robertson, a partner of MWE, states in her witness statement as follows:
25 Taylor Wessing clearly has documents of which the Claimants are Data Subjects. They would be bound to treat such documents as trust documents and would not dispose of them (nor do they claim to have done so) for some years after the trusts in question have come to an end. Mr Morrison and Mr Burns are professional persons who, in execution of their fiduciary role, would be expected to liaise with legal advisers and trustees in London, The Bahamas, Bermuda, and Australia, and with beneficiaries in Scotland and Australia. It is inconceivable that they are able to discharge such duties in a commercial environment without creating and maintaining computer records.
26 It is also unlikely that their paper files, which are bound to relate to one or more trusts for this family, are in such disarray that they cannot be said to constitute a relevant filing system under the Act.
There are witness statements from two individuals who are advisers to the trustee. Between them they exhibit some 550 pages, in many cases redacted, which were produced in response to the SAR prior to the institution of these proceedings. The appellants had also served requests on them under the DPA and they were formerly defendants to these proceedings. The proceedings against them have, however, been discontinued because the appellants were satisfied that they had made proper searches for data.
It is an important part of the background that under The Bahamian Trustee Act 1998 ("BTA"), section 83 (8) and (10) no trustee can be compelled to disclose a variety of trust documents and the Bahamian court would similarly not be able to order any such disclosure.
It is common ground that certain issues are outside this appeal, and that if this appeal succeeds they will have to be remitted to the High Court. Those issues include the questions whether TW holds data on a filing system of the kind to which the DPA gives access, and whether any particular document(s) carry legal professional privilege under English law. At that stage, if there was a dispute as to whether any document(s) carried legal professional privilege, the court would have power under section 15 DPA to examine the material.
Issues for determination
The appeal raises the following issues, which are of general importance:
Issue 1: Extent of the Legal Professional Privilege Exception: whether the Legal Professional Privilege Exception is limited to documents to which any privilege which attached was legal professional privilege under English law, so that those documents were exempt from disclosure in legal proceedings in England as against the appellants ("the narrow view") or whether (as the judge held) that Exception also includes any documents which the trustee could refuse to disclose to the beneficiaries under Bahamian trust law ("the wide view").
Issue 2: Disproportionate effort: whether, if the narrow view is correct, any further search would involve "disproportionate effort" for the purposes of section 8(2) so that (as the judge held) it is excused from doing so.
Issue 3: section 7(9) discretion: whether (as the judge held) the judge would have been entitled to refuse to exercise the section 7(9) discretion in favour of the appellants because their real motive was to use the information in legal proceedings against the trustee.
Because of the importance of the issues, Lewison LJ gave permission for the Information Commissioner ("the IC") to intervene and for oral and written submissions from her counsel, who is Anya Proops QC. I am most grateful to the IC and Ms Proops for their assistance.
The judge's conclusions on these three issues
On Issue 1: Extent of the Legal Professional Privilege Exception, the judge held that the Legal Professional Privilege Exception should be interpreted purposively so as to include all the documents in respect of which the trustee would be entitled to resist compulsory disclosure in the Bahamian proceedings. He gave four reasons:
i) It was clear from Durant v Financial Services Authority [2004] FSR 573 and the judgment of Lord Phillips in Campbell v MGN [2003] QB 633 at [96], that it was not appropriate to look for precision in the language because the drafter had transposed the Directive by adopting its wording and that a purposive approach should be adopted.
ii) The Legal Professional Privilege Exception had to be interpreted to give effect to the appellants' right to privacy and the accuracy of the information held by TW (a point which the appellants do...
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