Mrs Ashley Judith Dawson-Damer v Taylor Wessing LLP

JurisdictionEngland & Wales
JudgeLord Justice Newey,Lord Justice Arnold,Lord Justice Floyd
Judgment Date11 March 2020
Neutral Citation[2020] EWCA Civ 352
Date11 March 2020
Docket NumberCase No: A3/2019/1348, 1552 & 1708
CourtCourt of Appeal (Civil Division)
Between:
Mrs Ashley Judith Dawson-Damer
Appellant/Claimant

and

Mr Piers Dawson-Damer
Ms Adelicia Dawson-Damer
Claimants
and
Taylor Wessing LLP
Respondents/Defendant
And between:
Taylor Wessing LLP
Appellant/Defendant
and
(1) Mrs Ashley Judith Dawson-Damer
(2) Mr Piers Dawson-Damer
(3) Ms Adelicia Dawson-Damer
Respondents/Claimants

[2020] EWCA Civ 352

Before:

Lord Justice Floyd

Lord Justice Newey

and

Lord Justice Arnold

Case No: A3/2019/1348, 1552 & 1708

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

PROPERTY TRUSTS AND PROBATE LIST (ChD)

Mr Andrew Hochhauser QC

(sitting as a Deputy Judge of the Chancery Division)

[2019] EWHC 1258 (Ch)

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Antony White QC and Mr Richard Wilson QC (instructed by McDermott Will & Emery UK LLP) for Mrs Ashley Dawson-Damer, Mr Piers Dawson-Damer and Ms Adelicia Dawson-Damer

Mr Timothy Pitt-Payne QC, Mr Simon Taube QC and Mr James MacDougald (instructed by Taylor Wessing LLP) for Taylor Wessing LLP

Hearing dates: 29–30 January 2020

Approved Judgment

Lord Justice Arnold

Lord Justice Floyd, Lord Justice Newey and

1

There are two appeals before us, both from a judgment which Mr Andrew Hochhauser QC, sitting as a Deputy High Court Judge, handed down on 17 May 2019. The underlying claim is for relief in respect of subject access requests under the Data Protection Act 1998 (“the 1998 Act”) with which the claimants, Mrs Ashley Dawson-Damer (“Ashley”) and her children Piers and Adelicia, contend that the first defendants, Taylor Wessing LLP (“Taylor Wessing”), have not complied. In the judgment under appeal, Mr Hochhauser (“the Judge”) concluded (amongst other things) that certain paper files held by Taylor Wessing constituted a “relevant filing system” for the purposes of the 1998 Act, and that Taylor Wessing could claim legal professional privilege (“LPP”) in respect of some of the data covered by the requests. Taylor Wessing now challenge the Judge's decision on the “relevant filing system” point, Ashley his conclusion as regards LPP.

Basic facts

2

The trust funds to which these appeals relate derive from the fortune of a Mr George Skelton Yuill, who died in 1917. In 1973, a Bahamian settlement (“the 1973 Settlement”) was established for the benefit of legitimate descendants of Mr Skelton's grandson, Viscount Carlow, who had himself been killed during the Second World War, and their spouses. The beneficiaries of that trust included Viscount Carlow's two sons, George, now the Seventh Earl of Portarlington (“Lord Portarlington”), and John (“Mr John Dawson-Damer”), who died in 2000, as well as Lord Portarlington's wife, their four children, his three daughters-in-law and his 11 grandchildren and Ashley, Mr John Dawson-Damer's second wife. In contrast, the adopted children of Mr John Dawson-Damer and Ashley, Piers and Adelicia, did not qualify as beneficiaries.

3

Between 1988 and 1992, the trustee of the 1973 Settlement, Arndilly Trust Company Limited, instructed Mr Robert Walker QC and Taylor Garrett (later Taylor Joynson Garrett) to advise on a possible restructuring of the 1973 Settlement and other family trusts. In 1992, a resettlement was effected under which four new discretionary trusts were established: the Willards Settlement, which was for the benefit of Mr John Dawson-Damer and his family; two trusts for the benefit of Lord Portarlington and his family; and the Glenfinnan Settlement, which was originally for the benefit of Lord Portarlington, Mr John Dawson-Damer, their spouses and their legitimate children. In each case, the trustee was initially Grampian Trust Company Limited (“Grampian”), a Bahamian company, although new trustees were subsequently appointed in respect of the Willards Settlement. Taylor Joynson Garrett and its successor, Taylor Wessing, have acted for Grampian ever since its incorporation in 1992.

4

In 2006 and 2009, Grampian appointed funds from the Glenfinnan Settlement to be held in four new discretionary trusts in favour principally of Lord Portarlington's children and remoter issue. However, in a letter to Grampian dated 18 February 2014 solicitors for Ashley and her children asserted that the appointments were invalid and also challenged the validity of the 1992 restructuring. Later in 2014, Grampian applied in The Bahamas for a “put up or shut up order” against Ashley. In March of the following year, Ashley herself issued proceedings in The Bahamas challenging the 2006 and 2009 appointments. The trial of that claim is pending.

5

The present proceedings concern subject access requests which Ashley and her children made to Taylor Wessing under the 1998 Act on 4 August 2014. Taylor Wessing having responded that LPP applied to the data they held, Ashley and her children brought this claim, for relief under section 7(9) of the 1998 Act. In a judgment dated 6 August 2015 ( [2015] EWHC 2366 (Ch)), Judge Behrens, sitting as a Judge of the High Court, dismissed the application, but on 16 February 2017 the Court of Appeal allowed an appeal (see [2017] EWCA Civ 74, [2017] 1 WLR 3255).

6

In paragraph 18 of her judgment, Arden LJ, with whom David Richards and Irwin LJJ agreed, identified the issues which arose on the appeal as these:

“Issue 1: Extent of the Legal Professional Privilege Exception: whether the Legal Professional Privilege Exception [i.e. the exemption for which paragraph 10 of schedule 7 to the 1998 Act provides] 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 claimants (‘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) [of the 1998 Act] 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 [i.e. the discretion conferred by section 7(9) of the 1998 Act] in favour of the claimants because their real motive was to use the information in legal proceedings against the trustee.”

Arden LJ gave her conclusions on these issues as follows in paragraph 23:

“Issue 1: The Legal Professional Privilege Exception applies only to documents which carry legal professional privilege for the purposes of English law. This does not include documents by virtue only of the fact that a trustee may refuse to disclose to a beneficiary.

Issue 2: [Taylor Wessing] has not shown that to comply with the Request would involve ‘disproportionate effort’ as all it has done so far is to review its files.

Issue 3: The judge was wrong to decline to enforce the Request because the claimants intended to use the information obtained pursuant to it in their Bahamian proceedings.”

In the circumstances, the matter fell to be remitted to the Chancery Division. Arden LJ had referred to the need for remittal in paragraph 17:

“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 [Taylor Wessing] holds data on a filing system of the kind to which the [1998 Act] 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 of the [1998 Act] to examine the material.”

7

In the course of her discussion of Issue 1, Arden LJ explained in paragraph 46 that a question arose as to “whether the Legal Professional Privilege Exception extends to documents which are not subject to legal professional privilege as conventionally understood (that is to say, the privilege of withholding evidence about legal advice) but which are subject to a right of non-disclosure, here the trustee's right of non-disclosure which, as it happens, is recognised both in England and in The Bahamas”. Arden LJ noted in paragraph 52 that it had been submitted on behalf of Taylor Wessing that “there should be a purposive interpretation of ‘legal professional privilege’ in the Legal Professional Privilege Exception so that it includes documents within the trustee's right of non-disclosure”. Arden LJ, however, did not accept the argument. She said in paragraph 54:

“in my judgment, the [1998 Act] does not contain an exception for documents not disclosable to a beneficiary of a trust under trust law principles. The fact is that they are not within the Legal Professional Privilege Exception, and no other exception has been suggested.”

8

Further, Arden LJ considered the fact that Taylor Wessing were Grampian's solicitors to be of little relevance. In that connection, she said:

“55. There is no conceptual difficulty under the [1998 Act] arising from the fact that [Taylor Wessing] is an agent. The critical point is that [Taylor Wessing] is a data controller. As a firm of solicitors, [Taylor Wessing] can and must claim privilege to which the client is entitled. The trustee has not waived its privilege, and [Taylor Wessing] cannot (unless instructed to waive privilege) properly do so for them when acting on the Request. It could do so in legal proceedings brought against them.

56. It follows that [Taylor Wessing] is in no special position so far as the Legal Professional Privilege Exception is concerned because it is an agent for the trustee, even though the trustee is not...

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