Introduction

The case of Dawson-Damer v. Taylor Wessing LLP ([2020] EWCA Civ 352) addressed significant issues surrounding the interpretation of the Data Protection Act 1998 ("the 1998 Act") in the context of legal professional privilege (LPP) and the definition of a "relevant filing system." The claimants, Mrs. Ashley Dawson-Damer and her children, alleged that Taylor Wessing LLP failed to comply with their subject access requests under the 1998 Act. The core disputes revolved around whether certain documents were protected by LPP and whether the law firm maintained a "relevant filing system" as defined by the Act.

Summary of the Judgment

The England and Wales Court of Appeal reviewed two appeals arising from a decision by Deputy High Court Judge Andrew Hochhauser QC. The primary issues were:

• Legal Professional Privilege (LPP) Issue: Whether Taylor Wessing LLP could claim LPP over certain documents, effectively exempting them from disclosure.
• Data Protection Issue: Whether the 35 paper files maintained by Taylor Wessing constituted a "relevant filing system" under section 1(1) of the 1998 Act, thereby subjecting them to subject access requests.

The Court of Appeal ruled in favor of Ashley Dawson-Damer on both issues:

• LPP Issue: The court concluded that "joint privilege" is a matter of procedural law governed by English law, not trust law. Consequently, the Bahamian Trustee Act 1998 ("the BTA") was deemed irrelevant, and Taylor Wessing could not assert LPP over the contested documents.
• Data Protection Issue: The court found that the 35 paper files did not meet the criteria for a "relevant filing system" as defined by the 1998 Act. The structural criteria were too vague, and the files did not allow for "ready access" to personal data, leading to the dismissal of Taylor Wessing's obligations under the Act.

As a result, both appeals were allowed, mandating Taylor Wessing to comply with the subject access requests without invoking LPP over the disputed documents.

Analysis

Precedents Cited

The judgment extensively referenced prior case law to elucidate the concepts of LPP and "relevant filing systems." Key precedents include:

• Schmidt v Rosewood Trust Ltd [2003] UKPC 26: Distinguished between the proprietary rights of beneficiaries under trust law and the procedural rights in litigation for disclosure.
• Wynne v Humberston (1858) 27 Beav 421: Established that beneficiaries have rights to trust documents related to the administration of the trust.
• Talbot v Marshfield (1865) 2 Dr & Sm 549: Differentiated between trust administration advice and legal advice for defense in litigation, impacting the scope of disclosure.
• Durant v Financial Services Authority [2003] EWCA Civ 1746: Interpreted "relevant filing system" under the 1998 Act in light of European Directive 95/46/EC.
• Tietosuojavatuutettu ECLI:EU:C:2018:551: Provided guidance on the operational definition of a "relevant filing system" from the CJEU perspective.

Legal Reasoning

The Court of Appeal meticulously dissected the interplay between English procedural law and trust law. Key elements of their reasoning include:

• Nature of Joint Privilege: The court determined that "joint privilege" is rooted in procedural and evidential law, not in trust law. This distinction nullified the relevance of the BTA in the current context.
• Interpretation of "Relevant Filing System": Aligning with the CJEU's guidance in Tietosuojavatuutettu, the court emphasized that a "relevant filing system" must allow for the easy and ready retrieval of personal data based on specific criteria related to individuals. The chronological ordering under a broad client description did not satisfy these requisites.
• Application of the "Temp Test": Referencing the ICO's "temp test," the court assessed whether a reasonably competent temporary assistant could retrieve specific information without prior detailed knowledge of the filing system. The inability to do so reinforced the conclusion that the filing system was not "relevant."

Impact

The decision in Dawson-Damer v Taylor Wessing LLP has far-reaching implications:

• Clarification of Joint Privilege: By characterizing "joint privilege" as a procedural matter, the judgment delineates the boundaries between privilege in litigation and proprietary rights under trust law.
• Defining Relevant Filing Systems: The strict interpretation of "relevant filing system" under the 1998 Act serves as a precedent for future cases, emphasizing the necessity of structured and readily accessible data criteria.
• Data Protection Compliance: Law firms and other data controllers must reassess their data management practices to ensure compliance with subject access requests, especially concerning the structure and accessibility of their filing systems.

Complex Concepts Simplified

Conclusion

The Court of Appeal's decision in Dawson-Damer v Taylor Wessing LLP represents a pivotal moment in the interpretation of the Data Protection Act 1998 and the scope of legal professional privilege in England and Wales. By distinguishing joint privilege as a procedural matter separate from trust law, the court has set a clear boundary that will influence future legal proceedings involving data protection and confidentiality.

Additionally, the stringent criteria established for defining a "relevant filing system" underscore the importance of structured data management practices for organizations holding personal data. Compliance with these standards is essential not only for adhering to legal obligations but also for safeguarding the privacy rights of individuals.

Overall, this judgment reinforces the robust protection offered under the 1998 Act and clarifies the application of legal professional privilege in the realm of data protection, ensuring that beneficiaries and data subjects have clear avenues for asserting their rights.