Wilmslow versus the Bahamas: Dawson-Damer and Others v Taylor Wessing and Others
Reproduced under a Creative Commons Licence
Probably because it implements an EU directive and costs small business owners money to support a bureaucracy in Wilmslow and is cited by petty officials as an excuse for all sorts of irritations the Data Protection Act 1998 is one of the least understood and most maligned and least appreciated Acts of Parliament on the statute book. It does have its used of course and I for one would keep but I suspect that I am in a minority. If Parliament were ever to repeal this legislation the population would breath a mighty and very audible sigh of relief.
In Dawson-Damer and Others v Taylor Wessing LLP and Others  EWHC 2366 (Ch) (6 Aug 2015) the claimants in an action in the Bahamas over the administration of a trust sued solicitors who had advised the trustees of that trust in England for an order under s.7 (9) of the Data Protection Act 1998. The order that they sought would have required Taylor Wessing to deliver all data of which those claimants were the data subject (including data in which they were identified expressly or by inference) in the solicitors' possession custody or power. Taylor Wessing resisted the claim on the ground that the data were exempt from the subject access provisions of the Act by reason of paragraph 10 of Schedule 7. The action came on before His Honour Judge Behrens sitting as a judge of the Hight Court.
The relevant statutory provisions are as follows. S. 7 (1) of the Data Protection Act 1998 provides inter alia:
"Subject to the following provisions of this section and to sections 8, 9 and 9A, 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 ........"
Paragraph 10 of Schedule 7 provides:
"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 of communications could be maintained in legal proceedings."
The court has a discretion under s.7 (9) to compel compliance with subject access requests under s.7 (1):
"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."
The issues that the judge was asked to decide were the extent of the discretion and whether the paragraph 10 exemption extends to overseas proceedings or even to proceedings between trustee and beneficiary in the courts of England and Wales.
His Honour summarized the claimants' case at paragraph  of his judgment:
"Mr Swift QC on behalf of the Claimants accepts that the 1998 Act contains an exemption in respect of data in respect of which a claim for legal professional privilege could be made in legal proceedings. He contends that the exemption should be construed narrowly. It does not extend to the rules of equity in England and Wales under which trustees are not required to disclose trust documents to beneficiaries. Equally it does not extend to local Bahamian rules which apply to disclosure in respect of trust litigation in the Bahamian courts. He submits that as Ashley [the first named claimant] is a beneficiary under the Glenfinnan Settlement [the trust which was the subject of the litigation in the Bahamas] any privilege attaching to Grampian resulting from advice taken is a joint privilege with the result that Grampian cannot rely on the privilege against Ashley. Mr Swift QC invited me to take a narrow 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."
Judge Behrens rejected all those contentions.
As to the whether the first (namely whether paragraph 10 of Sched 7 should be construed narrowly so as to exclude overseas proceedings) the judge referred to the Court of Appeal's decision n Durrant v Financial Services Authority  EWCA 1746. Lord Justice Auld said at paragraph  of his judgment in that appeal:
"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."
Relying on that passage His Honour concluded at at sub-paragraph (2) of paragraph  that the purpose of the legislation is "to protect the Claimants' right to privacy and accuracy of the information held" on him and that 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." He therefore held at paragraph  that "paragraph 10 of Schedule 7 should be interpreted purposively so as to include all the documents in respect of which Grampian would be entitled to resist compulsory disclosure in Bahamian proceedings."
As he had decided that the subject access request was exempted by paragraph 10 of Sched. 7 the exercise of his discretion did not arise but the judge added at paragraph  that he would have declined as a matter of discretion to order Taylor Wessing 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."
Although the judge gave the defendants permission to appeal I should be very surprised if the Court of Appeal overrules him. The purpose of the Act is to regulate "the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information" and it is not to introduce novel and far-reaching procedures which would undermine our own and foreign judicial systems. The data protection legislation has received a very bad press lately particularly over the right to be forgotten (see Right to be forgotten: a Transatlantic Dialogue 1 Aug 2015). Had the case been decided differently the legislation would have been even further discredited.