Trust confidentiality and data protection


(Nicholas Lepoidevin) #1

In Dawson-Damer v. Taylor Wessing [2017] EWCA Civ 74 the Court of Appeal allowed in principle beneficiaries of a Bahamian trust to pursue a ‘subject access request’ under the data protection legislation made to English solicitors for the trustee. The purpose of the request was to obtain information for proceedings in The Bahamas in which the beneficiaries were challenging a large appointment out of the trust in favour of other beneficiaries. The information could not have been obtained in The Bahamas.

Under a subject access request, the personal data to be disclosed “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 Protection Act 1998, s. 1(1)) - a description which fits any record of the trustee’s deliberations before making a distribution.

This looks like a back-door way of avoiding both Londonderry restrictions on what a beneficiary can see and more sweeping restrictions in offshore jurisdictions, such as s. 83(8) of the Bahamian Trustee Act 1998.

Nicholas Le Poidevin, Q.C.
New Square Chambers