Subject access requests and issues of legal professional privilege

http://www.bailii.org/ew/cases/EWHC/Ch/2015/2366.html

This case involved a subject access request under the Data Protection Act 1988. Paragraph 10 of Schedule 7 to the Act provides that "personal data are exempt from the subject information provisions if the data consist of information in respect of which a claim to legal professional privilege…could be maintained in legal proceedings".

The solicitors for one of the parties to the underlying litigation resisted the request on the ground that the documents being sought were privileged. One of the issues raised in this case was whether the legal professional privilege referred to in paragraph 10 is confined to the English law of professional privilege. In this case, the parties were engaged in litigation in the Bahamas and the issue of which documents were privileged would be determined in those proceedings in accordance with Bahamian law.

Behrens HHJ noted that the Act should be interpreted purposively and to protect the claimant's right to privacy and accuracy of the information held by the solicitors: "It is no part of its purpose to provide the Claimants with information or disclosure of documents which may assist them in litigation against Grampian whether in England or the Bahamas".

Although the judge saw "force" in the argument that the reference to legal professional privilege is a reference to English law, this was a case where the only possible proceedings (and, in fact, the actual proceedings) are in the Bahamas and so paragraph 10 should be interpreted as including all the documents in respect of which a party would be entitled to resist compulsory disclosure in the Bahamian proceedings. Furthermore, it would not be reasonable or proportionate to require the solicitors to carry out a search to decide which of the documents it held were protected by privilege.

COMMENT: One further point of interest arose in the case. The judge confirmed that joint privilege "is not lost simply because the parties subsequently fall out". In Berezovsky v Hine (see Weekly Update 37/11), the Master of the Rolls referred to the case of Cia Barca de Panama v George Wimpey [1980] in which Bridge LJ said that if two parties have a common interest in litigation against a third party (and create documents for use in that litigation) and they subsequently fall out with each other, then common interest privilege is still maintained. He said that that statement was a general observation and "was plainly not intended to be a complete statement of the law". He implied that matters might be different where documents were not created for a common purpose (and were later shared pursuant to a common interest but the parties then fell out). It should be noted, however, that there is textbook commentary and some caselaw to support the contrary view that "once common interest privileged, always common interest privileged", and further support for that position can be derived from the comment of the judge in this case (albeit in relation to joint interest privilege instead).