The case was then referred back to the High Court to (i) consider whether certain categories of documents benefited from the BVG under English law; and (ii) if so, whether beneficiaries had a right of access to those documents even if they were subject to the BVG. The main reason the Dawson-Damers tried to do this was to claim a “common privilege” with TW in the documents, so LPP could not be invoked against them, even though it could be invoked against people outside the trust. Given the current direction of the regulatory environment in Ireland and elsewhere, requests for regulatory privileges by controllers and processors under investigation by CPD and/or other regulators are likely to become much more common. The Court of Appeal ruled in favour of the beneficiaries. It examined cases of joint privilege in the context of companies and trusts and found that, although joint privilege may have arisen in trusts, joint privilege must be determined by national procedural law and not by trust law. It convinced the Court that common privilege was recognized and applied according to the same principles in contexts other than trusts, such as company law. This case involves Ashley Dawson-Damer and her two children, who are beneficiaries of the Glenfinnan Trust, a Bahamian trust trustee of Grampian Trust Company Limited (the trust and trustee). The trust held over $400 million in assets before the trustee issued almost all of the funds to the trusts, of which the Dawson-Damers did not belong to the economic class. The disappointed beneficiaries challenged these appointments in a procedure initiated in the Bahamas. The beneficiaries sought to support this challenge by serving an RAD under the 1998 CCA then applicable to the trustee`s English lawyers, Taylor Wessing (TW). TW failed to comply with the SAR since, as it claimed, the relevant personal data fell within the exception provided for in the 1998 DPA, which excluded `information for which a request for [LPP] could be maintained in the context of legal proceedings` (BVG exception).
The 2020-2020 Annual Report specifically refers to the two most common aspects of solicitor-client privilege: (i) “legal privilege” and (ii) “litigation privilege”. The judgment deals with two interrelated issues – solicitor-client privilege (BVG) and solicitor-client privilege. BVG is the right of a trustee to claim a lien on legal advice in order to avoid disclosure of such advice in litigation. In a fiduciary context, joint privilege relates to whether the trustee and beneficiaries are involved in an applicable BPA, so the trustee cannot refuse to disclose to beneficiaries documents on which LPG can be claimed. Yes, the Data Protection Act 2018 states that controllers or processors under investigation by the DPC are not required to disclose inside information. Although the law affirms the right to legal privilege, this right also exists outside the law and is recognized as a fundamental right. Data controllers and processors will be interested in a number of aspects of the Data Protection Commission`s 2020 Annual Report, including the potential information it offers on the evolution of the DPC`s views on solicitor-client privilege and how it very often assesses and challenges a refusal to provide privilege-based documents. No – a refusal to disclose privileged documents in response to an access request cannot be formally used to punish an entity, and any attempt to do so would likely be a violation of fair trial. Exemptions to third parties, solicitor-client privilege and the obligation of trust are therefore potentially broad. Nevertheless, professional services firms should be wary of asserting general legal privilege or other exceptions with respect to any data in question without first conducting research and reviewing the documents discovered to ensure that this is the case. However, in the absence of a judicial decision on privilege, the DPO cannot compel a comptroller to disclose documents for which he or she claims privilege. The issue for the Court of Appeal was whether legal aid privilege can be invoked against recipients or whether there is a common privilege in these documents, which means that disclosure to beneficiaries cannot be properly denied.
The NPI is free to challenge a claim of privilege and voluntarily request access to the disputed documents in order to assess whether the claim is valid. Case Study 4 of the 2020 Annual Report is an example of where, after reviewing the documents in question, the DPO concluded that, in its opinion, a claim of litigation privilege had not been properly asserted. The BVG, to which the common privilege will apply, comes in two forms: legal advice privilege and litigation privilege. The documents at issue in this case were those that were subject to solicitor-client privilege, which protects or protects communications between a lawyer and his client for the primary purpose of legal advice. A common privilege exists when two parties have a common interest in the subject matter of the legal advice given or received. Many of the previous cases on this point involve situations in which a trustee sought advice on matters relating to the administration of the trust – which would also be of interest to the beneficiaries – and reimbursed the costs of legal advice to the trust fund. In these circumstances, a beneficiary has a common interest in this advice, so that no privilege can be invoked against him (but against third parties). This means that in actions brought against trustees for breach of trust (where trustees are required to provide claimant beneficiaries with access to relevant documents), BVG cannot be brought against a beneficiary if such a common interest exists.
Law firms and other professional services firms in certain limited contexts may also benefit from the second part of this exception, which states that the right of access under an RAD does not apply to information for which a professional legal advisor has a duty of confidentiality to his or her client. The extension of the exception to the duty of trust makes it much broader than its previous version under the (now replaced) Data Protection Act 1998. If a law firm (or other legal counsel of a professional services firm) receives a RAD, it may be able to withhold not only the advice it has given to its clients under solicitor-client privilege, but also any other data that involves a duty of confidentiality. Solicitor-client privilege and the duty of trust For example, consulting firms with existing clients will take particular care to keep their advice to those clients confidential.