In a recent court case, beneficiaries of an offshore trust used the Data Protection Act (DPA) to gain access to trust documents. The case of Dawson-Damer versus Taylor Wessing LLP (TW) involved beneficiaries of offshore trusts established in the Bahamas bringing action against TW, a firm of solicitors that advised the trustee of the trust.
After failing to obtain specific documents from the trustee, the beneficiaries submitted a subject access request (SAR) to TW. Under the DPA, data subjects (the beneficiaries) have a right to be informed when their personal data is being processed by a data controller and are entitled to copies of the data.
TW’s initial response was that the information requested was subject to legal professional privilege and therefore did not have to be disclosed. The beneficiaries challenged this and applied for a court order against TW, claiming that it had failed to comply with the SAR.
However, the High Court agreed with TW and said the legal professional privilege exemption applied as the documents were not disclosable between trustees and beneficiaries under Bahamian law. The beneficiaries took their case to the Court of Appeal, which decided the exemption applied only to documents that would be subject to legal professional privilege under English law.
The ruling said that a data controller in the UK could not avoid compliance with a SAR by relying on more restrictive foreign rules regarding privilege. TW failed to convince the court that complying with the SAR would involve disproportionate effort on its part and there was also no limitation in the DPA about why a SAR might be made.
Paula Steele, managing partner at John Lamb Financial Planning, says: “This case may be seen as a way around the established UK limitations on the ability of a beneficiary to compel the production of trust documents from a trustee as of right. The law on what information a beneficiary is entitled to see is rather complex, the most recent case on this being RNLI and others versus Headley and McCole (2016).”