Factual and Procedural Background
This case concerns an individual's right to access personal data held by others, known as the right to "subject access" under section 7 of the Data Protection Act 1998 ("DPA"). The claimant ("Plaintiff") brought a Part 8 claim seeking to enforce subject access rights against two defendants, "Defendant 1" and "Company A". The Plaintiff initially made subject access requests ("SARs") on 15 April 2016, which were later narrowed. The defendants responded on 14 November 2016 by disclosing limited information and relying on a legal professional privilege exemption ("LPP Exemption") for some data.
The background involves a longstanding business relationship and subsequent falling out between the Plaintiff and Defendant 1, including litigation in the High Court Chancery Division ("the Chancery Proceedings") concerning property dealings and loan agreements. The Plaintiff and his company sued Defendant 1, Company A, and others for various claims including conspiracy and fraudulent misrepresentation, which the defendants deny.
A separate High Court claim ("the Injunction Proceedings") was also brought by Defendant 1 against the Plaintiff and others to restrain disclosure of certain confidential information, but these proceedings are presently stayed.
The SARs sought personal data relating to the Plaintiff held by Defendant 1 and Company A, including communications involving certain third parties and surveillance or investigation reports. The defendants initially resisted compliance on grounds including abuse of process and disproportionate search obligations, but later provided substantive responses limited to parts of the narrowed SARs, asserting the LPP Exemption over some data.
Legal Issues Presented
- Whether the defendants carried out adequate and proportionate searches in response to the narrowed SARs ("the Search Issue").
- The validity of Defendant 1's reliance on the legal professional privilege exemption ("the LPP Issue"), including:
- Whether the LPP exemption is abrogated by the rule against using privilege to cloak iniquity ("the Iniquity Issue").
- Whether the court should inspect the relevant data to test the validity of the LPP claim ("the Inspection Issue").
- Whether the SARs were invalid due to being pursued for collateral and improper motives, constituting an abuse of the right of subject access ("the Abuse Issue").
Arguments of the Parties
Plaintiff's Arguments
- The SARs were made to vindicate privacy rights, specifically to discover whether the Plaintiff had been subject to surveillance or investigation by or on behalf of the defendants.
- The defendants' searches were inadequate, notably for failing to ask if investigations or surveillance had been commissioned and for not searching private email accounts of relevant custodians.
- The defendants' reliance on the LPP Exemption was unfounded because the underlying surveillance or investigation activities may have involved criminal conduct or unjustified interference with fundamental privacy rights.
- The court should inspect the data claimed to be privileged to verify the validity of the LPP claim.
- The defendants’ abuse argument was disingenuous and part of a campaign to avoid disclosure.
Defendants' Arguments
- The SARs were an abuse of the section 7 rights as they were primarily intended to obtain early or additional disclosure in the Chancery Proceedings.
- The searches undertaken were reasonable, proportionate, and extensive, involving review of over 17,000 documents and multiple data sources, including corporate and personal email accounts where appropriate.
- The LPP Exemption was properly claimed over data related to the Injunction Proceedings, supported by evidence from legal representatives and consistent with established legal principles.
- There was no surveillance conducted by third parties USG or DPM; only investigation, which is not exempt from scrutiny but was not evidenced as unlawful.
- The court should not inspect the privileged data absent credible evidence of misuse or bad faith, as inspection is a last resort.
- The abuse argument was not pursued at trial and relevant only to costs.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Guriev v Community Safety Development (UK) Limited [2016] EWHC 643 |
Discussion on whether subject access rights may be abused if used to obtain early disclosure for litigation. |
Referenced to illustrate the unsettled state of law on abuse of subject access rights. |
| Dunn v Durham County Council [2012] EWCA Civ 1654 |
Subject access rights are "purpose blind" and may be used to obtain documents for litigation. |
One view of the law considered by the court regarding abuse of subject access rights. |
| Durant v Financial Services Authority [2003] EWCA Civ 176 |
Subject access rights not intended to facilitate litigation disclosure; reliance on s 7 may be abusive. |
Represents the opposing view on abuse of subject access rights. |
| Dawson-Damer v Taylor-Wessing LLP [2015] EWHC 2366 |
Abuse of subject access rights and scope of searches under DPA. |
Considered in relation to search obligations and abuse arguments. |
| Roberts v Nottinghamshire Health NHS Trust [2008] EWHC 1934 |
Burden of proof on data controller to establish exemption applies. |
Applied to assess burden on defendants to prove LPP exemption. |
| Three Rivers District Council v Governor and Co of the Bank of England (No 6) [2004] UKHL 48 |
Principles governing litigation privilege. |
Used to frame legal principles on LPP exemption. |
| BGBP Managing Global Partner Ltd v Babcock & Brown Global Partners [2010] EWHC 2176 |
Threshold for applying iniquity exception to LPP requires strong prima facie case. |
Applied to determine whether iniquity exception to LPP applies. |
| Kuwait Airways v Iraqi Airways [2005] EWCA Civ 286 |
Iniquity principle and threshold for overriding privilege in cases involving fraud. |
Referenced for threshold tests on iniquity exception. |
| Dubai Aluminium v Al-Alawi [1999] 1 WLR 1964 |
LPP cannot be maintained for documents evidencing criminal or fraudulent conduct. |
Authority for crime exception to LPP applied in analysis. |
| Chief Constable of Humberside Police v Information Commissioner [2009] EWCA Civ 1079 |
Retention of complete criminal records justified; relevance to scope of data accessible. |
Used to assess plausibility of Knuckey Emails evidence and access to criminal records. |
| Vidal-Hall v Google Inc [2015] EWCA Civ 311 |
Recognition of privacy rights and remedies under EU Charter and Human Rights Act. |
Considered in argument about fundamental rights and privacy claims. |
| R (Morgan Grenfell) v Special Commissioner of Income Tax [2002] UKHL 21 |
Comments on legal professional privilege and scope for examination. |
Discussed in relation to scope of iniquity principle and LPP. |
| R v Brown (Edward) [2015] EWCA Crim 1328 |
Exceptional circumstances may qualify legal advice privilege. |
Referenced to consider possible exceptions to LPP. |
| A M & S Europe Ltd v Commission of the European Communities (Case 155/79) [1983] QB 878 |
Recognition of LPP as a principle of EU law. |
Supported argument that LPP is a fundamental right under EU law. |
| R v Derby Magistrates Court, ex parte B [1996] 1 AC 487 |
Rejection of balancing approach to legal advice privilege exceptions. |
Applied to reject balancing fundamental rights against LPP. |
| Kay v Lambeth LBC [2006] UKHL 10 |
Doctrine of precedent and Human Rights Act interaction. |
Referenced regarding limits on legal development by courts. |
| R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 |
Doctrine of precedent and Human Rights Act. |
Referenced regarding limits on legal development by courts. |
| West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729 |
Inspection of privileged material should be a last resort. |
Guided court’s approach to inspection of LPP material. |
Court's Reasoning and Analysis
The court first examined the adequacy of the defendants' searches in response to the SARs. It acknowledged the extensive and detailed searches conducted, including review of over 17,000 documents from various corporate sources and relevant custodians, as reasonable and proportionate. The court rejected the Plaintiff's criticisms regarding the absence of specific inquiries about commissioned investigations or surveillance and the failure to search private email accounts of all custodians, finding no sufficient evidence to require such searches.
On the LPP Issue, the court accepted the defendants' claim that the relevant data were subject to litigation privilege arising from the Injunction Proceedings. The court applied established legal principles summarised by the defendants’ evidence, including that litigation privilege applies where documents were created for the dominant purpose of litigation reasonably in prospect, and that privilege can be lost if used to cloak crime or fraud.
Regarding the Iniquity Issue, the court acknowledged the principle that LPP cannot protect documents evidencing criminal conduct but found no strong prima facie case that the privileged data contained evidence of criminality or other iniquity. The alleged criminal conduct, including breaches of section 55 of the DPA, was not supported by credible evidence. The court also rejected the Plaintiff's argument that breaches of fundamental privacy rights should constitute an exception to LPP, noting that such an extension would be novel, unsupported by authority, and inconsistent with established precedent that rejects balancing approaches between fundamental rights and LPP.
On the Inspection Issue, the court declined to inspect the privileged material, emphasising that inspection is a last resort reserved for cases where there is credible evidence of misuse or bad faith. The Plaintiff had not demonstrated any such basis. The court found that ordering inspection would be disproportionate, resource-intensive, and contrary to principles of open justice.
Finally, on the Abuse Issue, the court noted that the defendants' initial abuse argument was no longer pursued at trial and was relevant only to costs. The court made no ruling on this issue pending authoritative decisions from the Court of Appeal.
Holding and Implications
The court DISMISSED the Plaintiff's claim under section 7(9) of the Data Protection Act 1998. It held that:
- The defendants conducted reasonable and proportionate searches in compliance with their obligations under the DPA.
- The legal professional privilege exemption was properly claimed over the relevant data, with no sufficient basis to override that privilege.
- The court would not exercise its discretion to inspect the privileged data.
- The issue of abuse of process raised by the defendants was not decided and remains relevant only to costs.
The direct effect is that the Plaintiff's request for further disclosure under the SARs is refused, and no new precedent was established beyond the application of existing legal principles to the facts of this case.