“Issue 1: Extent of the Legal Professional Privilege Exception : whether the Legal Professional Privilege Exception [i.e. the exemption for which paragraph 10 of schedule 7 to the 1998 Act provides] is limited to documents to which any privilege which attached was legal professional privilege under English law, so that those documents were exempt from disclosure in legal proceedings in England as against the claimants (‘the narrow view’) or whether (as the judge held) that Exception also includes any documents which the trustee could refuse to disclose to the beneficiaries under Bahamian trust law (‘the wide view’). Issue 2: Disproportionate effort : whether, if the narrow view is correct, any further search would involve ‘disproportionate effort’ for the purposes of section 8(2) [of the 1998 Act] so that (as the judge held) it is excused from doing so. Issue 3: Section 7(9)discretion : whether (as the judge held) the judge would have been entitled to refuse to exercise the section 7(9) discretion [i.e. the discretion conferred by section 7(9) of the 1998 Act] in favour of the claimants because their real motive was to use the information in legal proceedings against the trustee.”
“Issue 1: The Legal Professional Privilege Exception applies only to documents which carry legal professional privilege for the purposes of English law. This does not include documents by virtue only of the fact that a trustee may refuse to disclose to a beneficiary. Issue 2: [Taylor Wessing] has not shown that to comply with the Request would involve ‘disproportionate effort’ as all it has done so far is to review its files. Issue 3: The judge was wrong to decline to enforce the Request because the claimants intended to use the information obtained pursuant to it in their Bahamian proceedings.”
“It is common ground that certain issues are outside this appeal, and that if this appeal succeeds they will have to be remitted to the High Court. Those issues include the questions whether [Taylor Wessing] holds data on a filing system of the kind to which the [1998 Act] gives access, and whether any particular document(s) carry legal professional privilege under English law. At that stage, if there was a dispute as to whether any document(s) carried legal professional privilege, the court would have power under section 15 of the [1998 Act] to examine the material.”
“in my judgment, the [1998 Act] does not contain an exception for documents not disclosable to a beneficiary of a trust under trust law principles. The fact is that they are not within the Legal Professional Privilege Exception, and no other exception has been suggested.”
“55. There is no conceptual difficulty under the [1998 Act] arising from the fact that [Taylor Wessing] is an agent. The critical point is that [Taylor Wessing] is a data controller. As a firm of solicitors, [Taylor Wessing] can and must claim privilege to which the client is entitled. The trustee has not waived its privilege, and [Taylor Wessing] cannot (unless instructed to waive privilege) properly do so for them when acting on the Request. It could do so in legal proceedings brought against them. 56. It follows that [Taylor Wessing] is in no special position so far as the Legal Professional Privilege Exception is concerned because it is an agent for the trustee, even though the trustee is not before the court and a similar order could not be obtained in The Bahamas.”
“(1) Whether the paper files maintained by [Taylor Wessing] before it moved to electronic files in 2005-2008 are a relevant filing system for the purposes of s.1(1) of the [1998 Act]. (2) Whether [Taylor Wessing] can rely on the legal professional privilege exemption contained in paragraph 10 of schedule 7 to the [1998 Act] in respect of any particular documents containing the Claimants’ personal data. There is a sub-issue about waiver of privilege. (3) Whether [Taylor Wessing] has breached its obligations under s.7 of the [1998 Act] by failing or refusing to carry out reasonable and proportionate searches for the Claimants’ personal data. (4) Whether [Taylor Wessing] has breached its obligations under s.7 of the [1998 Act] by redacting or withholding the Claimants’ non-exempt personal data.”
“entitled— (a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller, (b) if that is the case, to be given by the data controller a description of— (i) the personal data of which that individual is the data subject, (ii) the purposes for which they are being or are to be processed, and (iii) the recipients or classes of recipients to whom they are or may be disclosed, (c) to have communicated to him in an intelligible form— (i) the information constituting any personal data of which that individual is the data subject, and (ii) any information available to the data controller as to the source of those data, and (d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decisiontaking.”
“Personal data are exempt from the subject information provisions if the data consist of information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings.”
“In this Act, unless the context otherwise requires— ‘data’ means information which— (a) is being processed by means of equipment operating automatically in response to instructions given for that purpose, (b) is recorded with the intention that it should be processed by means of such equipment, (c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, (d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68; or (e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d); ‘data controller’ means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed; ‘data processor’, in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller; ‘data subject’ means an individual who is the subject of personal data; ‘personal data’ means data which relate to a living individual who can be identified— (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual; ‘processing’, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including— (a) organisation, adaptation or alteration of the information or data, (b) retrieval, consultation or use of the information or data, (c) disclosure of the information or data by transmission, dissemination or otherwise making available, or (d) alignment, combination, blocking, erasure or destruction of the information or data; … ‘relevant filing system’ means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible.”
“Notwithstanding anything to the contrary in this section (but subject, nonetheless, to subsection (11)), no person shall be bound or compelled by any process of discovery or inspection or under any equitable rule or principle to disclose or produce to any beneficiary or other person any of the following documents, that is to say - (a) any memorandum or letter of wishes issued by the settlor or any other person to the trustees, or any other document recording any wishes of the settlor; (b) any document disclosing any deliberations of the trustees as to the manner in which the trustees should exercise any discretion of theirs or disclosing the reasons for any particular exercise of any such discretion or the material upon which such reasons were or might have been based; or (c) any other document relating to the exercise or proposed exercise of any discretion of the trustees (including legal advice obtained by them in connection with the exercise by them of any discretion).”
“There exist relationships within which the parties will be unable to claim privilege in certain communications as against each other. More specifically, privilege cannot be claimed in circumstances where the parties to the relationship have a joint interest in the subject matter of the communication at the time that it comes into existence.”
“There can be no question that the rule is that, where the relation of trustee and cestui que trust is established, all cases submitted and opinions taken by the trustee to guide himself in the administration of his trust, and not for the purpose of his own defence in any litigation against himself, must be produced to the cestui que trust. They are taken for the purpose of administration of the trust, and for the benefit of the persons entitled to the trust estate, who will have to pay the expense thereby incurred.”
“The first case and opinion, the production of which is sought, were respectively stated and taken by the Defendants to guide them in the exercise of a power delegated to them by the trusts of the will, and which, if exercised, would affect the interests of the other cestuis que trust. The opinion was taken before proceedings were commenced or threatened, and in relation to the trust. Under these circumstances it appears to me that all the cestuis que trust have a right to see that case and opinion. It was contended that it was not taken for the benefit of all the cestuis que trust; but all the cestuis que trust have an interest in the due administration of the trust, and in that sense it was for the benefit of all, as it was for the guidance of the trustees in their execution of their trust. Besides, if a trustee properly takes the opinion of counsel to guide him in the execution of the trust, he has a right to be paid the expense of so doing out of the trust estate; and that alone would give any cestuis que trust a right to see the case and opinion. The other case and opinion, however, stands on a totally different footing. This was not to guide the trustees in the execution of their trust; but, after proceedings had been commenced against them, they took advice to know in what position they stood, and how they should defend themselves in the suit. It appears to me that the cestuis que trust have no right to see this case and opinion, unless they can make out that the trustees can charge the expense thereof on the trust funds. As to this there is no proof; the trustees may themselves have to bear the expense of this case and opinion, as having been stated and taken by them as litigant parties with the cestuis que trust. The trustees must be ordered to produce the first case and opinion; but not the second.”
“There is a difference between an opinion taken by a trustee on his own behalf, and one taken on behalf of the trust estate. In this case the opinion was taken by the trustees on their own behalf, after litigation had been commenced, and with a view to resisting future litigation. It is absurd to say that that is taken by a trustee on behalf of his cestuis que trustent.”
“It is not material for the present purpose whether this right is to be regarded as a paramount proprietary right in the cestui que trust, or as a right to be enforced under the law of discovery, since in both cases an essential preliminary is either the admission, or the establishment, of the status on which the right is based.”
“If the plaintiff is right in saying that he is a beneficiary, and if the documents are documents belonging to the executors as executors, he has a right to access to the documents which he desires to inspect upon what has been called in the judgments in this case a proprietary right. The beneficiary is entitled to see all trust documents because they are trust documents and because he is a beneficiary. They are in this sense his own. Action or no action, he is entitled to access to them. This has nothing to do with discovery. The right to discovery is a right to see someone else’s documents. The proprietary right is a right to access to documents which are your own. No question of professional privilege arises in such a case. Documents containing professional advice taken by the executors as trustees contain advice taken by trustees for their cestuis que trust, and the beneficiaries are entitled to see them because they are beneficiaries. The first case in Talbot v. Marshfield is an instance.”
“the principle was that if people had a common interest in property, an opinion having regard to that property, paid for out of the common fund, i.e., company’s money or trust fund, was the common property of the shareholders, or cestui que trust. But where the parties were sundered by litigation such an opinion obtained by one of them was privileged.”
“Where a company obtained advice in the common interest and paid for it out of the common fund, undoubtedly the shareholder would have a right to see it. But that did not apply where the interests of the company and the shareholder were adverse.”
“No privilege attaches to communications between solicitor and client as against persons having a joint interest with the client in the subject matter of the communication, e.g. as between partners; a company and its shareholders; trustee and cestui que trust ...”
“So here, it seems to me, however you define the relationship which their joint interest creates, it is enough to entitle the plaintiffs whether as beneficiaries, cestui que trust, or as partners in a joint venture, or as principals, to the same inspection of documents relating to the Aramco claims as the defendants themselves had.”
“If A. and B. have a common interest in litigation against C. and if at that point there is no dispute between A. and B. then if subsequently A. and B. fall out and litigate between themselves and the litigation against C. is relevant to the disputes between A. and B. then in litigation between A. and B. neither A. nor B. can claim legal professional privilege for documents which came into existence in relation to the earlier litigation against C.”
“even if documents of this type ought properly to be described as trust documents, they are protected for the special reason which protects the trustees’ deliberations on a discretionary matter from disclosure”
“It seems to me that where trustees are given discretionary trusts which involve a decision upon matters between beneficiaries, viewing the merits and other rights to benefit under such a trust, the trustees are given a confidential role and they cannot properly exercise that confidential role if at any moment there is likely to be an investigation for the purpose of seeing whether they have exercised their discretion in the best possible manner. Of course, if a case is made of lack of bona fides, that is an entirely different matter. In that case I agree it becomes necessary to examine exactly what has happened because that is in an action and not in a theoretical application for directions, as the present case appears to me to be. It appears to me that the documents are confidential and the trustees’ duty would become impossible and the execution of the trust would become impossible if the trustees were bound to disclose to any beneficiary any information or other matters in regard to beneficiaries that they had received.”
“The position is quite different where the beneficiary seeks disclosure of documents from the trustees in the air, as in this case, from the position where the beneficiary seeks discovery of documents in an action in which allegations are being made against the bona fides of the trustees. If the documents in question are in the possession or power of the trustees and are relevant to the issues in the action, they must be disclosed whether or not they are trust documents. In some instances, however, the fact that they are trust documents may nullify the privilege that would otherwise exist, as for example if the document consists of counsel’s opinion taken before the issue of the writ, clearly the beneficiary is entitled to see any opinion taken on behalf of the trust. In the present case there is no suggestion of any kind, and certainly not a shred of evidence, that the trustees acted otherwise than with the utmost propriety. In my judgment Talbot v. Marshfield has very little, if anything, to do with the case we are now considering.”
“The right to seek the court’s intervention does not depend on entitlement to a fixed and transmissible beneficial interest. The object of a discretion (including a mere power) may also be entitled to protection from a court of equity, although the circumstances in which he may seek protection, and the nature of the protection he may expect to obtain, will depend on the court’s discretion: see Lord Wilberforce in Gartside v Inland Revenue Comrs[1968] AC 553 , 617-618 and in In re Baden[1971] AC 424 , 456-457, Templeman J in In re Manisty’s Settlement[1974] Ch 17 , 27-28 and Warner J in Mettoy Pension Trustees Ltd v Evans[1990] 1 WLR 1587 , 16171618.”
“10. … In its simplest form, the problem may arise because a beneficiary asks the trustees for disclosure, without threat of litigation, or even because, in the absence of any request, a trustee is uncertain whether to include a wish letter with the settlement deed, when initially appraising beneficiaries of their status as such…. 11. The second typical circumstance in which the issue may arise is indeed that in which the court has been invited to resolve the question, as a discrete issue between trustees and beneficiaries. This may occur either because the trustees have, on their own initiative, sought directions from the court, or because, as in the present case, the beneficiaries have responded to a refusal by issuing a CPR Pt 8 claim for disclosure. In such a case disclosure is not said to be justified on the grounds of its relevance to some other pleaded issue between the trustees and the beneficiaries, such as the question whether a particular purported exercise of a discretionary power was invalid…. 13. The third category of case in which the question of disclosure may arise is in the context of existing litigation about an issue in respect of which the wish letter is alleged to be a relevant document. In that context, disclosure of wish letters is merely an aspect of the general law and practice as to disclosure. Generally speaking, relevance and necessity are the governing criteria and confidentiality plays a very subordinate role. It is tempting to think that, because a determined beneficiary might circumvent the obstacle of confidentiality by litigating an issue to which the wish letter was said to be relevant, confidentiality could in truth be nothing but a temporary rearguard to cover a slow retreat by the trustees. But English law has developed a robust approach to ‘fishing’ litigation of that kind.”
“The third stage (where disclosure is sought from the court to facilitate the determination of an issue to which the wish letter is alleged to be relevant) gives rise to different considerations, governed by the law and practice as to disclosure in civil proceedings. For those purposes, the relevance of the foregoing detailed analysis of the status of a wish letter is that identified by Danckwerts LJ in the Londonderry case[1965] Ch 918 , 936B, namely that if the document in question does no more than illuminate the trustees’ reasons for the making of a discretionary decision, it may be simply irrelevant, unless the trustees by a partial disclosure of their reasons have put into play the issue as to their rationality. Since the present case is not an example of this third category, I say no more about how the questions of that kind may in due course be decided.”
“No privilege attaches to communications between solicitor and client as against persons having a joint interest with the client in the subject matter of the communication, e.g. as between partners; a company and its shareholders; trustee and cestui que trust ...”
“(10) Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognized both inArticle 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principles of Community law; whereas, for that reason, the approximation of those laws must not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the Community; (11) Whereas the principles of the protection of the rights and freedoms of individuals, notably the right to privacy, which are contained in this Directive, give substance to and amplify those contained in the Council of Europe Convention of28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data; (15) Whereas the processing of such data is covered by this Directive only if it is automated or if the data processed are contained or are intended to be contained in a filing system structured according to specific criteria relating to individuals, so as to permit easy access to the personal data in question; (26) Whereas the principles of protection must apply to any information concerning an identified or identifiable person; whereas, to determine whether a person is identifiable, account should be taken of all the means likely reasonably to be used either by the controller or by any other person to identify the said person; whereas the principles of protection shall not apply to data rendered anonymous in such a way that the data subject is no longer identifiable; whereas codes of conduct within the meaning of Article 27 may be a useful instrument for providing guidance as to the ways in which data may be rendered anonymous and retained in a form in which identification of the data subject is no longer possible; (27) Whereas the protection of individuals must apply as much to automatic processing of data as to manual processing; whereas the scope of this protection must not in effect depend on the techniques used, otherwise this would create a serious risk of circumvention; whereas, nonetheless, as regards manual processing, this Directive covers only filing systems, not unstructured files; whereas, in particular, the content of a filing system must be structured according to specific criteria relating to individuals allowing easy access to the personal data; whereas, in line with the definition in Article 2 (c), the different criteria for determining the constituents of a structured set of personal data, and the different criteria governing access to such a set, may be laid down by each Member State; whereas files or sets of files as well as their cover pages, which are not structured according to specific criteria, shall under no circumstances fall within the scope of this Directive.”
“(1) This Directive shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.”
“1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.”
““personal data” means data which relate to a living individual who can be identified— (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual”
““data” means information which— (a) is being processed by means of equipment operating automatically in response to instructions given for that purpose, (b) is recorded with the intention that it should be processed by means of such equipment, (c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, or (d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68”
“1) in which the files forming part of it are structured or referenced in such a way as clearly to indicate at the outset of the search whether specific information capable of amounting to personal data of an individual requesting it under section 7 is held within the system and, if so, in which file or files it is held; and 2) which has, as part of its own structure or referencing mechanism, a sufficiently sophisticated and detailed means of readily indicating whether and where in an individual file or files specific criteria or information about the applicant can be readily located.”
“Anything … which … requires the searcher to leaf through files to see what and whether information qualifying as personal data of the person who has made the request is to be found there, would bear no resemblance to a computerised search.”
“As to the 1998 Act, to constitute a “relevant filing system” a manual filing system must: 1) relate to individuals; 2) be a “set” or part of a “set” of information; 3) be structured by reference to individuals or criteria relating to individuals; and 4) be structured in such a way that specific information relating to a particular individual is readily accessible. That seems to me entirely consistent with the Directive, in particular in the latter's emphatic emphasis in Art. 2(c) and Recital (27) on a file so structured by reference to “specific criteria” about individuals as to provide “easy access” to “the personal data in question”
“Is there any rule of thumb I can apply to establish whether I have a relevant filing system? If you employed a temporary administrative assistant (a ‘temp’), would they be able to extract specific information about an individual from your manual records without any particular knowledge of your type of work or the documents you hold? The ‘temp test’ assumes that the temp in question is reasonably competent, requiring only a short induction, explanation and/or operating manual on the particular filing system in question for them to be able to use it.”
“… whether Article 2(c) of Directive 95/46 must be interpreted as meaning that the concept of a ‘filing system’ referred to in that provision covers a set of personal data collected in the course of door-to-door preaching, consisting of names and addresses as well as other information concerning persons contacted, if those data may, in practice, be easily retrieved for later use, or whether, in order to be covered by that definition, that set of data must include data sheets, specific lists or other search methods.”
“53. As is clear from Article 3(1) and recitals 15 and 27 of Directive 95/46, that directive covers both automatic processing of data and the manual processing of such data, so that the scope of the protection it confers on data subjects does not depend on the techniques used and avoids the risk of that protection being circumvented. However, it is also clear that that directive applies to the manual processing of personal data only where the data processed form part of a filing system or are intended to form part of a filing system. 54. In the present case, since the processing of the personal data at issue in the main proceedings is carried out otherwise than by automatic means, the question arises as to whether the data processed form part of or are intended to form part of a filing system within the meaning of Article 2(c) and Article 3(1) of Directive 95/46. 55. In that connection, it is stipulated in Article 2(c) of Directive 95/46 that the concept of a ‘filing system’ is ‘any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis’. 56. In accordance with the objective set out in paragraph 53 of the present judgment, that provision broadly defines the concept of ‘filing system’, in particular by referring to ‘any’ structured set of personal data. 57. As is clear from recitals 15 and 27 of Directive 95/46, the content of a filing system must be structured in order to allow easy access to personal data. Furthermore, although Article 2(c) of that directive does not set out the criteria according to which that filing system must be structured, it is clear from those recitals that those criteria must be ‘relat[ed] to individuals’. Therefore, it appears that the requirement that the set of personal data must be ‘structured according to specific criteria’ is simply intended to enable personal data to be easily retrieved. 58. Apart from that requirement, Article 2(c) of Directive 95/46 does not lay down the practical means by which a filing system is be structured or the form in which it is to be presented. In particular, it does not follow from that provision, or from any other provision of that directive, that the personal data at issue must be contained in data sheets or specific lists or in another search method, in order to establish the existence of a filing system within the meaning of that directive. 59. In the present case, it is clear from the findings of the referring court that the data collected in the course of the doorto-door preaching at issue in the main proceedings are collected as a memory aid, on the basis of an allocation by geographical sector, in order to facilitate the organisation of subsequent visits to persons who have already been contacted. They include not only information relating to the content of conversations concerning the beliefs of the person contacted, but also his name and address. Furthermore, those data, or at least a part of them, are used to draw up lists kept by the congregations of the Jehovah’s Witnesses Community of persons who no longer wish to receive visits by members who engage in the preaching of that community. 60. Thus, it appears that the personal data collected in the course of the door-to-door preaching at issue in the main proceedings are structured according to criteria chosen in accordance with the objective pursued by that collection, which is to prepare for subsequent visits and to keep lists of persons who no longer wish to be contacted. Thus, as it is apparent from the order for reference, those criteria, among which are the name and address of persons contacted, their beliefs or their wish not to receive further visits, are chosen so that they enable data relating to specific persons to be easily retrieved. 61. In that connection, the specific criterion and the specific form in which the set of personal data collected by each of the members who engage in preaching is actually structured is irrelevant, so long as that set of data makes it possible for the data relating to a specific person who has been contacted to be easily retrieved, which is however for the referring court to ascertain in the light of all the circumstances of the case in the main proceedings. 62. Therefore, the answer to Question 2 is that Article 2(c) of Directive 95/46 must be interpreted as meaning that the concept of a ‘filing system’, referred to by that provision, covers a set of personal data collected in the course of door-to-door preaching, consisting of the names and addresses and other information concerning the persons contacted, if those data are structured according to specific criteria which, in practice, enable them to be easily retrieved for subsequent use. In order for such a set of data to fall within that concept, it is not necessary that they include data sheets, specific lists or other search methods.”
“If Taylor Wessing can sufficiently identify the personal data relating to the Claimants within the paper files to advance a claim for legal professional privilege in relation to the majority of the documents which contain it, the retrievability of the data must be a feature of the filing system.”