Court of Appeal finds trustees not entitled to withhold certain privileged documents in response to subject access request from beneficiaries of Bahamian trust

In the most recent chapter of the Dawson-Damer trust litigation, the Court of Appeal has held that a law firm acting for the defendant trustee in the underlying proceedings must comply (in part) with a subject access request made by the claimant beneficiaries, despite its claims to legal professional privilege ("LPP") in some of the documents, thereby overturning a High Court decision to the contrary: Dawson-Damer v Taylor Wessing LLP [2020] EWCA Civ 352.

From a general litigation perspective, the decision is of interest for its discussion of "joint interest privilege", a doctrine of English law which prevents a party from asserting LPP against a third party, where that third party has a joint interest in the subject matter of the privileged communications at the time they are made. Established categories of joint interest privilege include trustee/beneficiary and company/shareholder. (Note that the decision uses the term “joint privilege”, though it also recognises the use of the alternative term “joint interest privilege” in this context. We have used the term "joint interest privilege" so as to avoid confusion with the separate concept of "joint privilege" which arises where two clients jointly instruct the same solicitor.)

The decision establishes that the question of whether joint interest privilege precludes a trustee (or its legal advisors) relying on LPP to avoid having to comply with a beneficiary’s subject access request (or to avoid giving disclosure in legal proceedings) is purely a matter for English law, regardless of whether the trust is governed by foreign law. It is a question of procedural law rather than trust law, and therefore the provisions of the law which governs the trust instruments are not relevant.

Although it is not directly on point, the decision would seem to suggest that the same applies to questions of joint interest privilege which arise in the company/shareholder context, ie that the privilege arises under English law and its scope is to be determined under that law, regardless of the company's place of incorporation.

For further information see this post on our Private Wealth and Trusts Disputes Notes blog.