A New Direction for Legal Privilege and its scope under the Data Protection Act 1998?

The recent case of Dawson-Damer and Others v Taylor Wessing [2017] has shone a light on the extent to which solicitors can rely on the protection of legal professional privilege where an individual wishes to retrieve/see information held about them by others, regardless of their reasons for requesting it.

In short, making a request under the Data Protection Act 1998 is a relatively straight forward process, with a cost of £10, for an individual to submit a request for access to personal data held by someone else. When such a request (a ‘SAR’) is made, the entity holding the information (‘the data controller’) must make that information available to them within 40 days. However, a longstanding reason for not providing that information is because it is subject to legal professional privilege.

In this case, the action concerned the beneficiaries of a trust, who were concerned about the deterioration of the trusts value and served a SAR on the London law firm who were acting on behalf of the Trustees. In recent times, the case of Durant v Financial Services Authority has acted as a precedent, in which the Court of Appeal refused to order the data controller to disclose the information where the person requesting it was wanting it for the purposes of litigation. However, in the Dawson-Damer case, the Court of Appeal have ruled that the reason for the request is immaterial, i.e. it does not matter whether or not the information is going to be used for litigation. A firm cannot refuse to disclose the information and claim that all documents may be privileged, and any issues arising surrounding privilege should be decided by reference to English Law.

This helps demonstrate that Legal Professional Privilege does not extend to documents which are not strictly privileged themselves, but restricted for some other reason and so if the laws surrounding a trust limit the beneficiaries right to information, provided that information is not strictly privileged, they could apply to see it under the DPA 1998. It is important to note that solicitors and law firms are not ‘exempt’ from the provisions of the 1998 Act and must carefully review papers to establish what is and what is not subject to privilege.

It is important to ensure that you always instruct a firm of solicitors who are aware of their duties to you as a client and how to protect your information properly. Privilege covers correspondence seeking or offering legal advice, and so if a solicitor has a meeting with a third party and sends notes of the meeting to their client, without adding legal advice, that information can be disclosed. Whilst it is not entirely unusual for information to be disclosed during litigation between a trustee and a beneficiary, it is worth noting that in much the same way, the information can be disclosed where a beneficiary simply provides a SAR.

In any event, it is an interesting case that has set precedent for many beneficiaries to follow. If you are considering issuing proceedings for breach of trust or another problem with a trustee, please do not hesitate to contact our specialist Private Client team who have extensive experience in the administration of trusts and are aware of the disputes that can arise from them.