Dawson-Damer and others -v- Taylor Wessing LLP and others
The Court of Appeal has overturned a decision of the High Court and ordered compliance with a subject access request (SAR) in a positive outcome for data subjects.
This case concerns a mother and her two children (the appellants), who are the beneficiaries of a Bahamian trust (the trust). The defendant, Taylor Wessing (TW), is a firm of solicitors who advised the Bahamian trust company with responsibility for administering the trust (the trustees).
A dispute arose between the appellants and the trustees regarding administration of the trust and litigation was commenced in the Bahamas. Whilst this litigation was on-going, the appellants made a subject access request for access to personal data (SAR) to TW under section 7(2) of the Data Protection Act 1998 (DPA). TW responded to the SAR asserting that the requested data was the subject of legal professional privilege and so was exempt from disclosure under the DPA. The appellants applied to the court for an order compelling TW to comply with the SAR.
At first instance, the High Court judge refused to exercise his discretion to order compliance and the application was dismissed. In reaching this decision, the judge held that legal professional privilege should be interpreted to include all documents that the trustee could withhold from disclosure in the Bahamian proceedings and that on that basis, it was not reasonable and proportionate for TW to search for documents and determine which were privileged. He also said that he would not have exercised his discretion in any event because it was an improper use of the DPA to use a SAR to obtain documents to assist in the Bahamian proceedings which would not otherwise have been disclosed in that litigation.
The Court of Appeal (CA) overturned the High Court’s decision with focus on three key issues:
1) The CA held that the legal professional privilege under the DPA applied only to documents which attract legal professional privilege for the purposes of English law.
2) The CA was not satisfied that TW had demonstrated that compliance with the SAR would involve disproportionate effort. There was evidence that all TW had done on receipt of the SAR was to review its files. The CA acknowledged that these files were extensive but did not accept this, of itself, to be evidence of disproportionate effort.
3) The CA found that the High Court judge had been wrong to refuse to exercise his discretion based on the motivation for the appellant’s SAR.
Although the matter of legal privilege will have limited relevance to many employers, the remaining issues considered in this case are of general importance and it represents a very positive outcome for data subjects. Further similar judgements are anticipated in the near future.
In particular, the decision emphasises the importance of compliance with SARs. Perhaps more importantly it reiterates the narrow approach that courts (and the Information Commissioner) will take to refusals based on disproportionality or the unattractive motives of data subjects.