Beneficiaries and data protection: One step forwards, two steps back?

James Granby, senior associate, Harneys, 28/07/2020

In the matter of Dawson-Damer v Taylor Wessing [2017] EWCA Civ 4 (11 March 2020), the Court of Appeal considered whether solicitors acting for the trustee of an offshore trust were obliged to disclose documents to a beneficiary pursuant to a subject-access request (SAR) made by the beneficiary under section 7 of the Data Protection Act 1998 (DPA 1998). The decision elucidates some of the subtler interactions between data protection law, trusts law and the law of privilege, while raising questions about the future viability of similar SARs following recent changes in the relevant primary legislation.

The appellant, Mrs Dawson-Damer, was the beneficiary of a Bahamian trust and sought the disclosure of certain trust-related documents held by the trustee’s lawyers, Taylor Wessing. The documents included legal advice provided by Taylor Wessing to the trustee regarding the exercise of the trustee’s powers. Mrs Dawson-Damer’s initial document request had been refused on the grounds that, under Bahamian Trustee Act 1998 (BTA), a trustee cannot be compelled to disclose to a beneficiary any document relating to the exercise of the trustee’s discretion.

Mrs Dawson-Damer responded by issuing a SAR for the documents to Taylor Wessing. Taylor Wessing’s initial response was to deny the request on the grounds that the documents were subject to legal professional privilege (LPP) and therefore exempt from disclosure under schedule 7, paragraph 10 of the DPA 1998. In the subsequent proceedings before the High Court, Mrs Dawson-Damer argued that the legal advice was subject to joint privilege as between the trustee and herself as beneficiary, and that the trustee therefore could not rely on LPP as against her. However, the High Court preferred Taylor Wessing’s submission that the BTA effectively ousted the joint privilege between Mrs Dawson-Damer and the trustee, with the result that Taylor Wessing was entitled to rely on the DPA 1998’s LPP exemption.

The Court of Appeal took a different view. After examining the authorities, it reached the conclusion that jo...

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