International firm Taylor Wessing has been ordered to hand over documents containing personal data about the beneficiaries of a multi-million-dollar fund in the Bahamas despite claiming legal professional privilege.
The Court of Appeal ruled that Taylor Wessing, which acts for the fund’s trustee, could not rely on privilege as under English law beneficiaries enjoy joint privilege with their trustees in respect of advice taken by the trustees for the benefit of the trust.
The claimants, Ashley Judith Dawson-Damer and her two adopted adult children, are involved in Bahamian legal proceedings against the trustee. Before issuing proceedings in the Bahamas, the Dawson-Damers served subject access requests on Taylor Wessing under the 1998 Data Protection Act, asking for documents containing personal information. The firm refused to provide the documents, relying on privilege.
In its second Dawson-Damer v Taylor Wessing decision, the Court of Appeal allowed the Dawson-Damers’ appeal that the documents are not subject to privilege, thus overturning a 2019 High Court ruling. Lord Justice Floyd, Lord Justice Newey and Lord Justice Arnold concluded: ‘There is no reason to doubt that “joint privilege” applies in the circumstances of this case.’ Taylor Wessing was ordered to comply with the judgment by 8 April.
Ziva Robertson of international firm McDermott Will & Emery, which acted for the Dawson-Damers, said: ‘This is yet another victory for beneficiaries seeking information from data controllers: in the age of transparency, individuals should be – and are – entitled to have access to information about themselves in circumstances where such information is used to make decisions that affect their lives.’
However, the Court of Appeal also allowed Taylor Wessing’s appeal that certain paper files held by the firm do not constitute a ‘relevant filing system’ under the 1998 act. As a result, it found the firm is not required to search their paper files for document.
Kirstie McGuigan, partner at Taylor Wessing, said: ‘The decision in respect of the relevant filing system is a helpful and extremely reassuring correction of the position that had been left following the Deputy Judge's decision last year, which significantly expanded the scope of the information falling with the DPA 1998.
'Whilst the decision on privilege is a disappointing outcome for the trust industry the primary legislation has moved on from the DPA 1998 that was in issue in this case and, therefore, it is likely that the impact of the privilege decision will be contained.’