Disclosure in Litigation

What information may or may not be disclosed in the course of civil proceedings? The High Court in the UK has refused an application by a trust beneficiary to order a law firm’s compliance with a subject access request. The dispute involved a beneficiary of trusts which was governed by Bahamian law and a Bahamian trustee.

What information may or may not be disclosed in the course of civil proceedings?  The High Court in the UK has refused an application by a trust beneficiary to order a law firm’s compliance with a subject access request.  The dispute involved a beneficiary of trusts which was governed by Bahamian law, and a Bahamian trustee.

The beneficiary made subject access requests (SARs) under the UK Data Protection Act 1998 (DPA), asking the trustee’s London solicitors for information – the motive of which was likely to have been to obtain documents that could be useful in ongoing Bahamian litigation. (The judge said this was not a proper reason for the SARs).

The solicitors refused to comply on the basis that the personal data it held was protected by legal professional privilege (the privilege being that of the trust company) because they were the trustee’s legal advisers. It was therefore exempt under the DPA.  However, the beneficiary claimed that this exemption did not extend to the rules of equity in England and Wales (under which trustees are not required to disclose trust documents to beneficiaries), and that the exemption did not apply to local Bahamian rules.

The High Court found in favour of the trustees: it was not reasonable or proportionate for the data controller to carry out searches to determine whether legal professional privilege would apply to the information held.   The court said: “The question of whether a document was protected by privilege was a matter that required consideration by skilled lawyers. It would accordingly be a very time consuming (and costly) exercise for such lawyers to carry out that task. The claimants had only paid a modest fee (£10 each) for the subject access requests. To expect TW to carry out the work required was neither reasonable nor proportionate”.

The judge pointed out that the right under the DPA is to “protect the Claimants’ right to privacy and accuracy of the information held by [the law firm]. It is no part of its purpose to provide the Claimants with information or disclosure of documents which may assist them in litigation against [the Trustee] whether in England or The Bahamas”.

Even if the argument as to legal professional privilege failed, the application would most likely have failed because of the motive behind the SARs. In the judge’s view, the application would not have been made at all if it had not been for the purpose of assisting in the Bahamian proceedings which were being contemplated.

What does this mean?

Trustees in The Bahamas clearly have greater protection in this respect than in other jurisdictions including the UK.  That said, the effect of the ruling is somewhat surprising in that it paves the way for organisations to refuse SARs on the basis that it is, in practice, time consuming and too costly to respond, and therefore unreasonable and disproportionate.

Applicants for SARs should also consider their motives so that they don’t run the risk of having their applications struck out because they were not for a proper purpose.

How can we help?

For expert, strategic legal advice on commercial disputes including obtaining or refusing data requests under data protection law, call the experienced commercial lawyers at ParrisWhittaker.  We can help you with clear, effective legal advice and representation to fully protect your interests.

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