Following on from our article in last month's edition of the Employment Law Round-up there have been further developments in the field of data protection and, specifically, subject access requests.
In the recent case of Dawson-Damer & Ors v. Taylor Wessing LLP  EWCA Civ 74 the Court of Appeal made an order compelling compliance with a subject access request (SAR) made by the beneficiaries of a Bahamian trust.
Mrs Dawson-Damer and her two children (the Beneficiaries) submitted a SAR to Taylor Wessing (TW) for access to personal data under Section 7 Data Protection Act 1998 (DPA). TW acted for the Bahamian trust at the time. The SAR was made in the context of a dispute about the trust in the Bahamas.
TW did not comply with the SAR. It argued that legal professional privilege applied to the personal data. It is relevant that under the Bahamian Trustee Act 1988, the courts cannot order a trustee to disclose certain trust documents.
The Beneficiaries made an application for an order to comply with their SAR; the High Court dismissed the application. When the Beneficiaries appealed, the Court of Appeal overturned the first instance decision, focusing on three issues:
- The extent of the legal professional privilege exception.
- The extent to which compliance with the SAR involved a disproportionate effort.
- The judge's discretion to refuse to enforce the SAR because of the Beneficiaries' intended use of the information in their Bahamian litigation.
In relation to the first issue, the High Court had decided that the legal professional privilege exception should be interpreted widely to include all documents of which the trustee could resist compulsory disclosure in the Bahamian dispute. The Court of Appeal disagreed. It held that the exception should be interpreted narrowly and apply only to documents which carried the privilege under English law.
Secondly, TW successfully argued at first instance that it was not reasonable or proportionate to carry out a search for the information. The Court of Appeal held that the judge's decision was wrong. The court stated TW had singularly failed to produce evidence to show what it had done to identify the material and to work out an action plan.
Finally, the High Court was wrong to decline the SAR because the data subjects intended to use the information in legal proceedings. The Beneficiaries successfully argued there was no rule that no order should be made if the data subject proposed to use the information for verifying or correcting data but also to aid in other proceedings.
As is always the case, each claim turns on its own facts. In this case, TW sought to rely on legal professional privilege and had not searched extensively in response to the SAR. The judgment, however, provides guidance on disproportionality and strengthens the position for individuals seeking data under the DPA. Subject to any Supreme Court appeal, a party cannot refuse to comply with a SAR on the grounds that the application is made in the context of potential or actual litigation. This principle has also been applied in other recently published Court of Appeal judgments relating to SARs – we will report further in our next edition.