Labour & European Law Review Weekly Issue 444 04 November 2015
Under the Data Protection Act (DPA) 1998, data subjects can ask the data controller for details of information held about them. In Dawson-Damer and ors v Taylor Wessing LLP and ors, the High Court held that it was not reasonable or proportionate to expect a solicitors’ firm to carry out a search over many years to ascertain which documents were exempt from disclosure because they were covered by legal professional privilege.
A dispute arose relating to the distribution of funds from a fortune held in the Bahamas under a trust company involving one of the beneficiaries. In addition to starting litigation against the trust fund, Grampian, the three claimants made three subject access requests in 2014 to Taylor Wessing LLP, the London solicitors for Grampian. They enclosed a cheque for £30 to cover the cost of each request.
Taylor Wessing refused to supply any documents, some of which dated back 30 years, on the ground that they were covered by legal professional privilege and therefore exempt from the subject access provisions of the DPA. In addition it argued that most of the documentation was “loose leaf in boxes and so not in a relevant filing system” for the purposes of the 1998 Act. In any event, it was neither reasonable nor proportionate to expect the firm to carry out what would be a time consuming and costly exercise for such a modest fee and which the firm claimed had only been brought to obtain documents for use in the Bahamian proceedings.
Mrs Dawson-Damer and her two children asked the court to order the data controller to comply with their request.
Section 1(1)(c) DPA states that data is information which is “recorded as part of a relevant filing system”. This often excludes manual filing systems.
Section 7(1) DPA states that individuals can ask a data controller whether personal data about them is being processed by or on behalf of that controller. This is known as a subject access request. Section 7(9) states that courts can order a data controller to comply with a subject access request for information.
High Court decision
Taking a purposive approach to the provisions, the High Court judge held that although the law had to ensure that the information held about the claimants was accurate, it was not there to provide them with information or disclosure of documents which might help them in their litigation against Grampian.
Nor was it reasonable or proportionate to expect Taylor Wessing to carry out the necessary search to determine if any particular document was covered by privilege. This would involve much time and great consideration by skilled lawyers, making it very costly to carry out, although the claimants had only paid £10 each for the subject access requests.
In light of the conclusion that the firm did not have to carry out a search, the issue relating to the nature of its filing system did not arise. However, in case he was wrong on that point, the judge accepted that the evidence relating to the filing system was far from detailed. It was not clear how many of the files were filed chronologically nor when the firm started electronic filing. Had further evidence been forthcoming, he might have been convinced that the manual filing system adopted by the firm did not fall within the definition of a "relevant filing system”.