In the recent development of the UK case Dawson-Damer v Taylor Wessing, the Court of Appeal discussed the rights of beneficiaries to access their personal data. The appeal centered on whether trustees can maintain legal professional privilege (aside from litigation privilege) against beneficiaries and whether paper files constitute a “relevant filing system” under the Data Protection Act of 1998 (DPA).

Background

The Claimants, beneficiaries of a number of Bahamian trusts, discovered that a substantial amount of funds were transferred and paid out in favour of other beneficiaries. This presented a potential breach of trust. The Claimants served Subject Access Requests under the DPA on a number of persons connected to and involved with the trust management including the Defendant, Taylor Wessing.

The Decision

The Court of Appeal held that ‘joint privilege’ is an aspect of procedural law rather than trust law and where proceedings are brought in the English Court, such questions will be determined by English law regardless of whether the trust is governed by foreign law. This suggests that beneficiaries would enjoy joint privilege with their trustees as it relates to the administration of the trust.

The Court of Appeal also determined that paper filing systems are indeed “relevant filing systems” under the DPA, thus reversing the effect of Durant v FSA. The Court also held that the test set out in Durant was “unduly restrictive” and that once the structure is such that ready access to the information is enabled, that would be sufficient. Thus, in the current case, Taylor Wessing was not required to search their paper files since it did not meet the criteria under the DPA as it was not easily or readily retrievable.

In summary, this ruling is a victory for beneficiaries as they are entitled to access personal information which is held by a “data controller” subject to UK data protection laws.