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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Dawson-Damer & Ors v Taylor Wessing LLP & Ors [2015] EWHC 2366 (Ch) (06 August 2015) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2015/2366.html Cite as: [2016] WTLR 253, [2016] WLR 28, [2016] 1 WLR 28, [2015] WLR(D) 361, [2015] EWHC 2366 (Ch) |
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2015] EWHC 2366 (Ch) |
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2015-000177 |
CHANCERY DIVISION
Strand London WC2A 2LL |
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2015 |
B e f o r e :
sitting as a Judge of the High Court
____________________
(1) ASHLEY JUDITH DAWSON-DAMER(2) PIERS DAWSON-DAMER(3) ADELICIA DAWSON-DAMER | Claimants |
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| and |
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(1) TAYLOR WESSING LLP(2) MICHAEL MORRISON(3) JAMES BURNS |
Defendants |
____________________
LLP)
for the Claimants
Simon Taube QC (instructed by
Taylor
Wessing
LLP)
for the First Defendant
Hearing dates: 22 and 23 July
2015
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Judge Behrens :
1 Introduction
Dawson-Damer
("Ashley"), and her children Piers
Dawson-Damer
("Piers") and Adelicia
Dawson-Damer
("Adelicia"). The application is made against the law firm
Taylor
Wessing
LLP
("TW").
views
have been expressed by Bahamian lawyers. In any event the Court should, as a matter of discretion, decline to make an order. The application has been brought for the purpose of obtaining documents for use in the Bahamian proceedings. The Court should permit the Bahamian Court to determine which documents (if any) are disclosable. As a subsidiary point he submitted that as TW had only had an electronic filing system from a date between 2005 and 2008 information relating to the Claimants for any period prior to the electronic filing was not readily accessible.
view
of the discretion afforded to the Court in s 7(9) of the 1998 Act. In particular he drew my attention to the large number of exceptions in Part IV and Schedule 7 and of the power of the Secretary of State in s 38 to make further exceptions. He submitted that the Court should not, as a matter of principle, use its discretionary powers under s7(9) to make further exceptions. In general terms he submitted that if the data was not within one of the exemptions the Court should normally order its disclosure. He accepted that one of the motives for making the subject access requests may have been to obtain documents which might be of use in the Bahamian proceedings but he contended that the Claimants could also
verify
if the data was correct and, if necessary, take steps to have it corrected.
2 The facts
LLP
("MWE") and TW respectively. Much of the following summary is taken from the summary which appears in the skeleton argument of Mr Taube QC.
Background
Viscount
Carlow, who died in 1944 on war service, and their respective spouses. Those beneficiaries included:-
1.
Viscount
Carlow's two sons George ("George"), who is now Lord Portarlington, and John
Dawson-Damer
("John"), who died in 2000;
2. George's wife Davina and their four children, Charles, Henry, Edward and Marina, and their grandchildren; and
3. John's second wife Ashley, but not their adopted children, Piers and Adelicia.
The 1992 Resettlement
1. the Willards Settlement, which was for the benefit of John and his family and held about 25% of the funds;
2. two trusts, which were for the benefit of George and his family and together held about another 25% of the funds; and
3. the Glenfinnan Settlement, which was originally for the benefit of George, Davina, John, Ashley, their spouses and their legitimate, non-adopted issue, and which held about 50% of the funds.
The 2006 and 2009 Appointments
value
of the funds appointed totalled approximately $402 million leaving only about $9 million in the Glenfinnan Trust.
Challenge to the 2006 and 2009 Appointments
validity
of the 1992 restructuring leading to the 1973 Settlement. In section 6 of the letter they invited Grampian and the trustees of the four new settlements to participate in a mediation. In section 7 they invited the trustees to disclose a number of documents.
The Subject Access Requests
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.
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 byvirtue
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.
Certain information held by our client is held in manual files with the majority loose leaf in boxes and so not in a relevant filing system for the purposes of [the 1998 Act] for the reason that the files contain multiple categories of information that are not structured by reference to individuals or criteria relating to individuals. Not all documents have been filed in chronological order and those that have are without any further structure that would enable specific information about a particular individual to be located without having to review the contents of the entire file.
Proceedings in the Bahamas
view
that it was unable safely to distribute further funds. Grampian therefore applied to the court in the Bahamas for a "put up or shut up order" against Ashley. As a result on 20 March
2015
Ashley issued in the Bahamas a writ against Grampian in which she challenges the
validity
of the December 2006 and March 2009 appointments and seeks the return to the Glenfinnan Settlement of the Assets which have been transferred under the 2006 and 2009 appointments.
3 These proceedings
2015.
The Claimants seek declarations that TW has failed to comply with their requests and orders under s 7(9) requiring them to do so.
1. There is no direct evidence before the Court of the Claimants' motives in making the subject access requests. As a result Mr Taube QC submitted that the obvious inference to be drawn was that the purpose was to obtain documents that could be used in the Bahamian proceedings.
2. The evidence relating to TW's pre 2005 filing system was limited. In addition to the statement in the letter of 3 October 2014 Ms McGuigan touched on it in paragraph 26A of her first witness statement
Furthermore thevast
majority of documents held by [TW] are not retained in any structured filing system, but on standard paper files in which papers have been filed chronologically. There are currently over 50 files maintained by [TW] in this manner. It was not until 2005 when electronic filing was introduced in the firm, however it did not become standard practice throughout the firm until much later (I recall this was somewhere within 2008) and as I recall this was rolled out amongst different practice areas within the firm at different times.
Mr Swift QC criticised this evidence as inadequate for the purpose of the 1998 Act. It does not give sufficient details of the nature of the files or the date when these files were stored electronically. He also made the point there are likely to have been some electronic documents before 2005 in any event. He pointed to emails and electronic copies of word processed documents.
3. There is no evidence of the extent of any search carried out by TW. Save for the assertion in the letter of 11 September
Furthermore the2014 there is no evidence that any search was carried out at all. There is a blanket claim for privilege in respect of all documents. Mr Swift QC accepted that at least after February 2014 the majority of the documents may well be privileged. However it is likely that some will not. He submitted that there is no reason why TW should not carry out a search and identify the information/documents that are not privileged and disclose those documents.vast
majority of documents held by [TW] are not retained in any structured filing system, but on standard paper files in which papers have been filed chronologically. There are currently over 50 files maintained by [TW] in this manner. It was not until 2005 when electronic filing was introduced in the firm, however it did not become standard practice throughout the firm until much later (I recall this was somewhere within 2008) and as I recall this was rolled out amongst different practice areas within the firm at different times.
2015.
Before dealing with the arguments it is right that I should acknowledge with gratitude the help I have received in the
very
full skeleton arguments and the clear submissions from Counsel. It has proved invaluable in a by no means straightforward area of law.
4 The 1998 Act
v
FSA [2003] EWCA 1746. As much of the law relating to the Act was common ground it is not necessary for me to set out all of the relevant provisions in detail. I can take the legislative scheme from paragraphs 3 to 8 of the judgment of Auld LJ in Durrant.
"7(1) an individual is entitled
(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,
(b) if that is the case, to be given by the data controller a description of -
(i) the personal data of which that individual is the data subject,(ii) the purposes for which they are being or are to be processed, and(iii) the recipients or classes of recipients to whom they are or may be disclosed,
(c) to have communicated to him in an intelligible form
(i) the information constituting any personal data of which that individual is the data subject, and(ii) any information available to the data controller as to the source of those data, and
(d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking.".
"8(2) The obligation imposed by section 7(1)(c)(i) must be complied with by supplying the data subject with a copy of the information in permanent form unless-
(a) the supply of such a copy is not possible or would involve disproportionate effort, or
(b) the data subject agrees otherwise."
v
Lloyds TSB Bank[2] (Leeds County Court dated 24 April 2012) I had to consider the extent of the obligation imposed by s 8(2) of the 1998 Act. In particular I had to consider a decision of Judge Hickinbottom (as he then was) in Ezsias
v
Welsh Ministers [2007] All ER (D) 65 and the guidance given by the Information Commissioner in the light of that decision. In paragraph 18 of the judgment I held that the data controller is only required under s 8(2) to supply the individual with such personal data as is found after a reasonable and proportionate search. Neither Mr Swift QC nor Mr Taube QC submitted that this construction was wrong.
The intention of the Directive, faithfully reproduced in the Act, is to enable an individual to obtain from a data controller's filing system, whether computerised or manual, his personal data, that is, information about himself. It is not an entitlement to be provided with original or copy documents as such, but, as section 7(1)(c)(i) and 8(2) provide, with information constituting personal data in intelligible and permanent form. This may be in documentary form prepared for the purpose and/or where it is convenient in the form of copies of original documents redacted if necessary to remove matters that do not constitute personal data (and/or to protect the interests of other individuals under section 7(4) and (5) of the Act).
In conformity with the 1981 Convention and the Directive, the purpose of section 7, in entitling an individual to have access to information in the form of his "personal data" is to enable him to check whether the data controller's processing of it unlawfully infringes his privacy and, if so, to take such steps as the Act provides, for example in sections 10 to 14, to protect it. It is not an automatic key to any information, readily accessible or not, of matters in which he may be named or involved. Nor is to assist him, for example, to obtain discovery of documents that may assist him in litigation or complaints against third parties. As a matter of practicality and given the focus of the Act on ready accessibility of the information - whether from a computerised or comparably sophisticated non-computerised system - it is likely in most cases that only information that names or directly refers to him will qualify. In this respect, a narrow interpretation of "personal data" goes hand in hand with a narrow meaning of "a relevant filing system", and for the same reasons (see paragraphs 46-51 below). But ready accessibility, though important, is not the starting point.
v
Westrip Holdings [2011] 1 BCLC 498 who had cited from a passage from the judgment of Bridge LJ (as he then was) in Goldsmith
v
Sperrings Ltd [1977] 1 WLR 478. I concluded in paragraph 13:
If it is found that Mr Elliott has mixed motives in bringing the application the application will not be abuse of process unless it can be shown that, but for the collateral purpose the application would not have been brought at all.
It is plain from the constituents of the definition considered individually and together, and from the preface in it to them, "although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose", that Parliament intended to apply the Act to manual records only if they are of sufficient sophistication to provide the same or similar ready accessibility as a computerised filing system. That requires a filing system so referenced or indexed that it enables the data controller's employee responsible to identify at the outset of his search with reasonable certainty and speed the file or files in which the specific data relating to the person requesting the information is located and to locate the relevant information about him within the file or files, without having to make a manual search of them. To leave it to the searcher to leaf through files, possibly at great length and cost, and fruitlessly, to see whether it or they contain information relating to the person requesting information and whether that information is data within the Act bears, as Mr. Sales said, no resemblance to a computerised search. It cannot have been intended by Parliament - and a filing system necessitating it cannot be "a relevant filing system" within the Act. The statutory scheme for the provision of information by a data controller can only operate with proportionality and as a matter of common-sense where those who are required to respond to requests for information have a filing system that enables them to identify in advance of searching individual files whether or not it is "a relevant filing system" for the purpose.
If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request.
If I am correct in my conclusions on the primary issues, the question of exercise of discretion under section 7(9) whether or not to order compliance with Mr. Durant's requests does not call for answer. I say only that I agree with the recent observations of Munby J in Lord, at para. 160, that the discretion conferred by that provision is general and untrammelled, aview
supported, I consider, by the observations of the European Court in Lindquist, at paras. 83 and 88, to which I have referred (see para. 61 above).
Personal data are exempt from the subject information provisions if the data consist of information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality as between client and professional legal adviser, could be maintained in legal proceedings.
5 Legal Professional Privilege
Joint Privilege
When a trustee seeks legal advice in respect of the affairs of the trust, the trustee and the beneficiaries have a joint interest, and joint privilege arises. Where joint privilege exists no party to the joint interest can assert the privilege as against any other party to the joint interest, and for that reason the need for consent of the other beneficiaries simply does not arise. (See generally (a) Thanki "The Law of Privilege" (Second edition, 2011) at §§6.07 6.09, and in particular, the cases referred to at footnote 28; and (b) Lewin on Trusts (19th edition, 2014) at §§23-048 23-049.)
The English Law rules
37. First, if Grampian seeks legal advice in response to a threatened or actual claim by a beneficiary against the trustee, the trustee is entitled to assert LPP in respect of that advice against the beneficiary. (See Talbotv
Marshfield (1865) 2 Dr & Sm 549 and Thomas
v
Sec. of State for India (1870) 18 W.R. 312.)
38. Secondly, as regards a case where a trustee takes legal advice in connection with the possible exercise of its powers of disposition, the trustee is not obliged to disclose the contents of those communications to the beneficiary at her request. The trustee may in its discretion preserve the confidentiality in those communications. (See Re Londonderry's Settlement [1965] Ch 918.)
39. In hostile English litigation concerning an English trust the trustee may be compelled under the CPR to disclose such confidential legal advice to a claimant beneficiary and thus the trustee will be unable to claim LPP against the beneficiary - if the beneficiary seeks to challenge thevalidity
or good faith of the trustee's subsequent decision about the exercise of its power.
v
Ackland [2009] Ch 32. In that judgment Briggs J considered the effect of Re Londonderry in the light of the Privy Council decision in Schmidt
v
Rosewood Trust [2003] 2 AC 709 and I can see no reason to add to that analysis.
1. I am satisfied that paragraphs 37 to 39 of Mr Taube QC's skeleton argument are a sufficiently accurate summary of the position in English law for the purposes of this application. Re Londonderry is a good example of a case where the Court of Appeal held that there was no obligation to allow inspection of documents relating to trust meetings; Breakspear is an example where Briggs J ordered disclosure of a letter of wishes.
2. It is well established that if a trustee is contemplating proceedings against a beneficiary and makes a Beddoe application the advice he has received is not disclosed to the beneficiary. The final clause in paragraph 39 is supported by the judgment of Salmon LJ at p 938 of Re Londonderry. It is cited in full in footnote 28 of Thanki.
3. Ashley has not so far formulated her claim against Grampian. It is thus not clear whether she is alleging lack of good faith on the part of Grampian. In those circumstances it is unclear whether under English law Ashley would be able to rely on the principle summarised in paragraph 39 so as to obtain disclosure of the documents.
Bahamian Law
83(8) "Notwithstanding anything to the contrary in this section, trustees shall not be bound or compelled by any process of discovery or inspection or under any equitable rule or principle to disclose or produce to any beneficiary or other person any of the following documents, that is to say
(a) any memorandum or letter of wishes issued by the settlor ;
(b) any document disclosing any deliberations of the trustees as to the manner in which the trustees should exercise any discretion of theirs or disclosing the reasons for any particular exercise of any such discretion or the material upon which such reasons were or might have been based; or
(c) any other document relating to the exercise or proposed exercise of any discretion of the trustees (including legal advice obtained by them in connection with the exercise by them of any discretion)."
83(10) No such prohibition or restriction, and nothing in this section shall prejudice thevalidity
of any trust or the entitlement of any beneficiaries who have in any manner become aware of any trusts to obtain orders from the Court for administration or accounts, or for the execution of the trusts or any other order of the Court not being an order for the discovery, inspection, disclosure or production of such documents as are described in subsection (8)
view.
In paragraph 20 of his opinion he makes the point that s 83 of the Act is not part of the law of privilege. It is part of the law of disclosure. In his
view
s 73 should be given a restrictive meaning. He thinks a court "may find attractive" an argument that s 83 would not protect a trustee from disclosure of documents which may be evidence of misconduct by the trustee. He considers that s 83(10) supports this
view.
In particular he submits that if s 83(8) was intended to have the wide meaning suggested by Mr Wilson there would be no need for s 83(10) at all.
6 Discussion and Conclusions
Scope of Paragraph 10 of Schedule 7
information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality as between client and professional legal adviser, could be maintained in legal proceedings.
1. As is clear from paragraph 3 of the judgment in Durant (and the citation from the judgment of Lord Phillips in Campbell
v.
MGN [2003] QB 633 within it):
because the Act has, in large measure, adopted the wording of the Directive, it is not appropriate to look for the precision in the use of language that is usually to be expected from the parliamentary draftsman. A purposive approach to making sense of the provisions is called for.
2. Paragraph 10 has to be interpreted to give effect to protect the Claimants' right to privacy and accuracy of the information held by TW. It is no part of its purpose to provide the Claimants with information or disclosure of documents which may assist them in litigation against Grampian whether in England or the Bahamas.
3. I have 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. As Mr Taube QC pointed out in paragraph 47(5) of his skeleton argument privilege has been described as "a right to resist the compulsory disclosure of information" [See paragraph 67 of the speech of Lord Millett in B
v
Auckland District Law Society [2003] 2 AC 736]. Furthermore the cases relied on by Mr Swift QC for his submissions in support of his submission that Ashley has a joint interest with Grampian (i.e. those at footnote 28 of paragraph 6-09 of Thanki) are precisely the authorities dealing with disclosure of documents by trustees.
4. I see the force of Mr Swift QC's submissions that the reference to legal professional privilege is a reference to the English law. However this is a case where the only possible proceedings are in the Bahamas. Grampian is not resident in England and it is not suggested that this is a case where service out of the jurisdiction would have been possible. Furthermore the actual proceedings between Ashley and Grampian are in the Bahamas.
Reasonable and Proportionate Search
virtually
no evidence of the search carried out by TW. There is an assertion in the letter of 11 September 2014 that searches have been carried out but there is no other evidence. The point is not addressed at all in Ms McGuigan's evidence. Furthermore, as Mr Swift QC pointed out, even though much of the personal data may be covered by privilege there is likely to be some not so covered. It is in that context that he invites the Court to exercise its powers under s 15 of the 1998 Act.
very
time consuming (and costly) exercise for such lawyers to carry out that task. The Claimants had only paid a modest fee (£10 each) for the subject access requests. To expect TW to carry out the work required was neither reasonable nor proportionate. He also made the point that in all likelihood the question of disclosure will have to be considered and resolved by Grampian and its Bahamian lawyers in the Bahamian proceedings. TW's files would form part of that exercise.
view
it was not reasonable or proportionate on the facts of this case for TW to carry out the necessary search to determine if any particular document was covered by privilege.
TW's manual filing system
views
in relation to the necessity of TW to carry out a search the issues relating to the nature of TW's filing system do not arise. In case, however, I am wrong about this I shall deal with it shortly.
view
is that the further evidence might well have satisfied me that the manual filing system adopted by TW did not fall within the definition of a "relevant filing system" in s 1(1) of the 1998 Act.
Discretion
views
I have expressed the discretion under s 7(9) does not arise. In case I am held to be wrong it is right I should express my
views
on discretion. I would have declined as a matter of discretion to order TW to comply with the subject access requests for the following reasons:
1. In my
view
the real purpose of the subject access requests was to obtain information to be used in connection with the Bahamian proceedings. As Mr Taube QC said at the beginning of his oral submissions "context is everything". These requests were made after MWE had written the letter of 18 February 2014 challenging the
validity
of the 2006 and 2009 appointments and TW had sent a detailed reply on 9 July 2014. It is, to my mind, of considerable significance that MWE stated in their letter of 4 August 2014 that they would reply to the letter of 9 July 2014 when they have received the documents. Furthermore there is no suggestion in any of the evidence filed on behalf of the Claimant that they wish to check the accuracy of the information held by TW and to have it corrected if it is inaccurate. In my
view
the Claimants would not have brought the application at all if it had not been for the purpose of assisting in the Bahamian proceedings which were being contemplated. As Auld LJ makes clear in paragraph 27 of Durant this is not a proper purpose.
2. In my
view
Mr Taube QC's arguments on the question of whether it is reasonable and proportionate to expect TW to carry out a search are just as
valid
on the question of the exercise of the discretion under s 7(9) of the 1998 Act. This is a case where the question of which documents are discoverable will have to be determined in the Bahamian proceedings according to Bahamian law. The extent to which disclosure will be ordered may depend (if Sir Michael is correct) on the allegations that Ashley makes in those proceedings. The parties in the Bahamian proceedings are the trustee and the beneficiary. It is plainly more desirable that the issue be determined between those parties rather than between TW and the beneficiary. It seems quite unnecessary that the matter should be determined by the English Court in addition to the Bahamian Court.
3. If and in so far as the exception in paragraph 10 of Schedule 7 is restricted to the English law of disclosure and if and in so far as the documents discoverable under English law are more extensive than those under Bahamian law it does not seem to me a proper use of the 1998 Act to enable the Claimants to obtain documents that they could not obtain in the Bahamian proceedings.
7 Conclusion
views
I express are accordingly provisional. My provisional
view
is that costs should follow the event on the standard basis.
view and in those circumstances I would provisionally be minded to grant permission to appeal.
Note 1 Sir Michael Barnett is Counsel with the law firm acting for the Claimants in the Bahamian proceedings. Mr Wilson is a partner in the firm acting for Grampian. [Back] Note 2 Regrettably the report of my decision contains a typing error. The hearing dates were 26 and 27 March 2012 and not 2011 as the report suggests. I did not take 13 months to produce the judgment! [Back]