Richard Wilson QC appears in the Court of Appeal case of Dawson-Damer v Taylor Wessing [2020] EWCA Civ 352

Yesterday, the Court of Appeal handed down the judgment in the case of Dawson-Damer v Taylor Wessing [2020] EWCA Civ 352. The Court of Appeal allowed Ashley Dawson-Damer’s appeal in her claim under the Data Protection Act 1998 (“DPA”) for provision of her personal data by Taylor Wessing.

At first instance, the deputy judge (Andrew Hochhauser QC) held that the effect of s.83(8) of the Bahamian Trustee Act 1998 (which enables a trustee to refuse to disclose information concerning the exercise of its fiduciary discretions) was to remove joint privilege as between a trustee and a beneficiary and therefore entitled Taylor Wessing to rely on the exemption for legally privileged material under paragraph 10 of schedule 7 DPA.

The Court of Appeal held that legal professional privilege is part of the law of practice and procedure and not substantive trusts law. It is therefore governed by English law (as the lex fori) and, thus, the Bahamian Trustee Act does not affect the question of whether legal advice privilege can be asserted by a trustee against a beneficiary.

The Court confirmed the well-established principle that under English law a beneficiary is in a position of joint privilege with a trustee and that as a result, personal data sought by a trust beneficiary under a subject access request under the DPA cannot be withheld on the grounds of legal advice privilege belonging to the trustee. Only in circumstances where privilege can be asserted under English Law will the privilege exemption be available as a basis for non-disclosure.

The decision means that Mrs Dawson-Damer will now receive further data which was previously incorrectly withheld on the grounds of privilege.

The Court also allowed a cross-appeal concerning the status of certain paper files which it held do not constitute a ‘relevant filing system’ under the DPA.

Richard Wilson QC appeared with Antony White QC (of Matrix Chambers) for Mrs Dawson-Damer, instructed by Ziva Robertson of McDermott Will & Emery UK LLP.

The judgment can be found here.

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Described by The Legal 500 as “one of the stars of his generation”, Richard Wilson KC specialises in litigation, drafting and advisory work across traditional and commercial chancery. His practice focuses on trusts and probate, both contentious and non-contentious, related company and partnership law, claims under the Inheritance (Provision for Family and Dependants) Act 1975, tax, professional negligence and civil fraud.

Richard has acted in many of the most significant and high-value cases in these areas in recent years. He is currently involved in several disputes concerning the estates of ultra-high-net-worth individuals (UHNWIs) in England and overseas.

His practice frequently involves offshore matters and private international law. He has appeared before the Privy Council, the Supreme Court and Court of Appeal of Gibraltar, the Supreme Court and Court of Appeal of Bermuda, the Supreme Court of The Bahamas, the Grand Court of the Cayman Islands, and the Eastern Caribbean Supreme Court and Court of Appeal. He has also provided expert evidence on English law before the Royal Courts of Jersey and Guernsey.

Richard regularly acts in disputes across all the principal offshore jurisdictions. A significant proportion of his practice involves international clients, particularly those based in Asia, including Hong Kong.