Court of Appeal upholds right to disclosure of data

The UK Court of Appeal overturned a High Court decision that law firm Taylor Wessing LLP had not breached the Data Protection Act 1998 (DPA) by refusing to carry out searches on grounds of proportionality, legal privilege and improper purpose. Subject to any appeal to the Supreme Court, the ruling reverses the previous position regarding subjects’ rights to personal data in the context of litigation.

In Dawson-Damer v Taylor Wessing LLP ([2017] EWCA Civ 74), the case arose out of ongoing proceedings in the Supreme Court of the Bahamas between Mrs Ashley Dawson-Damer and Grampian Trust Company Limited, a trust company incorporated in the Bahamas, which was the sole trustee of a discretionary settlement of which Ashley was a beneficiary.

Ashley and her two adopted children made subject access requests (SARs) to Taylor Wessing LLP, the data controller and solicitors to Grampian, under s.7 of the DPA. Taylor Wessing, relying on the legal professional privilege exemption under the DPA, declined the request on the grounds that: the documents would not be disclosable under Bahamian law and were protected by privilege under English law; disproportionate effort on their part would be required to inspect the documents; and the purpose of the SAR was to obtain disclosure for the sake of litigation.

In 2014, the court at first instance ruled in favour of Taylor Wessing, finding that the legal professional privilege exemption did apply. It found that the proposed search was not reasonable or proportionate and, given that the claimants would not have been able to obtain disclosure in the Bahamian proceedings, the High Court had no discretion to order the disclosure.

The Court stated that there was no suggestion that the claimants wished to verify the accuracy of the information held in accordance with the overarching purpose of the subject access provisions of the DPA; rather the Court believed that “the real purpose of the subject access requests was to obtain information to be used in connection with the Bahamian proceedings”, which was not a proper purpose. Mrs. Dawson-Damer appealed.

Reversing the decision, the Court of Appeal held that legal professional privilege exemption does not extend to systems of law outside of the UK or to documents that are solely the subject of non-disclosure rules. It also held that disproportionate effort must involve more than an assertion that it was too difficult to search through voluminous papers.

It further held that the Data Protection Directive (Directive 95/46/EC) does not limit the purpose for which a data subject can request personal data or provide data controllers with an option to deny it based solely on such purpose. Neither does the DPA require a data subject to show that they have no other collateral purpose.