The beneficiaries of a Bahamian trust have overturned a key section of the UK Data Protection Act 1988, winning the right to view personal data about them held on paper by the London-based law firm acting on behalf of the trustees.
The trustees of the Glenfinnan Settlement are being sued by Mrs Ashley Dawson-Damer and her two children regarding the disposition of the trust’s assets. In 2013, having failed to obtain disclosure under Bahamian legislation, the Dawson-Damers were represented by Taylor Wessing, with a UK subject access request under section 7 of the Data Protection Act 1998 (DPA 1998). This requires a company to disclose all the personal data it holds on the individual who made the request.
The Data Protection Act’s legal professional privilege exemption was used to establish an attempted defence. It won in the England & Wales High Court however subsequently lost on appeal, with the UK Court of Appeal issuing an order for the disclosure of their personal data.
The company initially complied with the order for electronic data however their refusal to release any hard copies on the grounds that paper files did not constitute a relevant filing system as per the Data Protection Act 1998 was later challenged.
The beneficiaries challenged the decision again, which was subsequently rejected, whereby the Court of Appeal ordered them to examine their paper files for relevant information to be disclosed to the Dawson-Damers.
The ruling has been described as a ‘landmark victory’ by many for its clients and UK trust law, as the case (Dawson-Damer v Taylor Wessing 2019) establishes the following notable points:
The case provides an extra level of protection of rights of Bahaman Citizens.
In the absence of litigation privilege, trustees and beneficiaries have joint privilege for legal advice, as per UK legislation.
The case has been influential in the significance of litigation privilege between a trustee and its legal advisor.
The Judge from the case stated: decision was a “necessary clarification that trustees can rely on the specific exemption which provides that personal data can be withheld (if subject to legal advice privilege), and importantly, that the privilege between a trustee and its legal advisor can only be lifted by a beneficiary if the governing laws of the relevant trust allows it”.
In this instance, the relevant provisions as stipulated by Bahamian Law under section 83(8) of the Bahamian Trustee Act holds that a beneficiary of a trust in the Bahamas has no automatic right to see the legal advice and the trustee has the right to withhold this information. The General Data Protection Regulation 2018 contains a subject access right similar to section 7 of the act. However, the amended Data Protection Act introduced in 2018 contains a provision protecting Solicitors from the need to make disclosure of information, which is confidential to their clients, however this right does not extend to protect trustees or other fiduciaries.