In Dawson-Damer & Ors v Taylor Wessing LLP & Ors [2015] EWHC 2366 (Ch) the High Court was faced with a choice concerning subject-access requests sent to Taylor Wessing, the well known firm of solicitors.
On receipt of a request for documents based on the Data Protection Act 1998, s. 7(9), Taylor Wessing refused to send any documents on the basis that its client, Grampian Trust, was entitled to rely on legal professional privilege in respect of the majority of the documents. Moreover, it was the Taylor Wessing case that it was not reasonable to expect them to sift through a mound of documents going back 30 years to produce the minority that were not privileged; many of the documents were held ‘loose leaf in boxes’ and so were not in relevant filing systems for the purposes of the DPA.
The background to the case involves a family trust, adopted children, a Bahamian trust and the movement of funds (large sums at that). Had Dickens known about trusts in the Bahamas, the whole scenario could well have been the foundation for the plot of a follow-up to Bleak House.
In August 2014 subject access requests were sent on behalf of all three claimants to each of the Defendants enclosing a cheque for £30 to each of them. The requests asked for
‘All data of which they are the data subject (including data in which they are identified expressly or by inference) and which is in your firm’s possession custody or power.’
The points in issue on the subject-access request were limited to (i) the extent of the privilege, (ii) the extent of a reasonable and proportionate search for documents and (iii) whether the request was improper, in that it was an attempt to gain disclosure of documents for the purposes of proceedings when the court disclosure rules were more properly applicable, and the extent of the court’s discretion to refuse such a request.
Privilege
The Taylor Wessing refusal was supported by the following statement:
We have carried out searches of the records held by us and our response to your request is as follows:
Personal data records held by us are processed only in connection with our capacity as legal advisors. This data is exempt from the subject access provisions of the Act by virtue of Schedule 7 section 10 of the Act by reason that it consists of data in respect of which a claim to legal professional privilege applies.
It was accepted that, once the dispute was in train at least, some documents were protected by legal professional privilege. The claimants’ position was that not all were so protected and that they were entitled to a response in respect of the others.
One tricky question was whether the legal professional privilege extended to the material that might be privileged under the law of the Bahamas, which gave more extensive protection than English law. Another was that, since one of the claimants had been a beneficiary under the trust for which Taylor Wessing acted, joint privilege applied so as to undermine any right to claim privilege against her.
His Honour Judge Behrens expressed ‘great difficulty in following the concept that the principles of disclosure in relation to trustees and beneficiaries can in some way be separated from legal professional privilege’. He took a purposive approach, citing Durant v FSA [20013] EWCA Civ 1746, and felt that legal professional privilege extended to include all the documents in respect of which Grampian would be entitled to resist compulsory disclosure in Bahamian proceedings.
Reasonable and Proportionate Search
His Honour Judge Behrens acknowledged that data processors have often been required to carry out ‘quite extensive searches for data‘ in response to subject-access requests. But, in a passage (at [66]) that may have many a public servant rolling their eyes, he accepted the submissions of the defendants and came to the firm conclusion that it was not reasonable or proportionate to ask Taylor Wessing to carry out a search for to determine which documents were protected by privilege and which were not.
The defendant’s submissions, which were endorsed by Judge Behrens, included reference to the fact that determining whether a document was protected by privilege was a matter that required consideration by skilled lawyers and would this be ‘a very time consuming (and costly) exercise for such lawyers to carry out’ It also included reference to the ‘modest fee (£10 each)’ for the subject access requests. One might be left with the impression that factor weighed in the assessment of what was reasonable and proportionate. Since the response to any subject-access request is likely to cost a large multiple of the fee paid, it seems unlikely to have been a major factor. While it is true that a suggested fee of £10 for any work done by Taylor Wessing might lead to a raised eyebrow (though I suspect they charge more than that even to raise an eyebrow), the work would surely have been chargeable so the burden would have fallen on the trust and, since His Honour Judge Behrens considered that in all likelihood the question of disclosure would have to be considered and resolved by Grampian and its Bahamian lawyers in Bahamian proceedings, he considered that the cost of the costly exercise should be part of those proceedings.
Propriety
Given his view that privilege applied and that, insofar as it did not, a search was not reasonable and proportionate, it was not necessary for Judge Behrens to give a view on whether or not he would exercise his discretion to order a search. He did express the view that he would have refused to order a search in the exercise of his discretion because it seemed clear to him that the request was really part and parcel of a dispute that would lead to litigation and a discovery exercise in the Bahamas.
