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Isle of Man: Subject Access Rights For Beneficiaries Under The Spotlight

The latest decision by the English Court of Appeal in the
long-running case of Dawson-Damer v Taylor Wessing LLP [2020] EWCA Civ 352 has again highlighted the thorny issue of a
beneficiary’s right of access, under data protection law, to
information pertaining to the deliberations of trustees.

Dawson-Damer concerned a significant trust created
under Bahamian law which had two beneficiaries, George and John.
The trustee made appointments to a new trust for George’s
children which were challenged in 2015 in the Bahamian courts by
the wife of the now deceased John, Ashley. Under Bahamian law,
Ashley was not permitted access to the trustee’s deliberations
in relation to the appointments. The trustee had appointed the UK
law firm Taylor Wessing to advise in relation to the trust and
Ashley and her children also made subject access requests under UK
data protection law to Taylor Wessing. These requests were
presumably made in the hope that this would provide the information
they were seeking to obtain in relation to the deliberations of the
trustee. Taylor Wessing declined the request claiming legal
privilege which led to further Court proceedings in which the Court
of Appeal ordered disclosure. This position has been upheld in the
most recent judgment which confirmed that legal advice obtained for
the benefit of a trust cannot be withheld from a beneficiary where
it forms part of a beneficiary’s subject access request.

So would the same right of access be provided under Isle of Man
data protection law? The short answer is that the right of access
granted to Ashley under UK law would not be available under Isle of
Man data protection legislation due to there being an additional
exemption which could be relied upon by the data controller. In
this regard, under paragraph 21 of Schedule 9 to the GPDR and LED
Implementing Regulations 2018 it is expressly stated that personal
data processed in connection with a trust (regardless of which
jurisdiction’s law is the proper law of the trust) are exempted
from the disclosure provisions to the extent that the personal data
consists of any information:

(a) which discloses the trustee’s deliberations as to the
manner in which the trustee has exercised a power or discretion or
has performed a duty;

(b) which discloses the reason for any particular exercise of
such power or discretion or performance of duty or the material on
which such reason is likely to have been based;

(c) which relates to the exercise or proposed exercise of such
power or discretion or the performance or proposed performance of a
duty; or

(d) the disclosure, erasure or rectification of such, if done by
the relevant data controller, would be contrary to a prohibition or
restriction under Isle of Man law or the law of the jurisdiction of
the trust.

Due to the above, trustees in the Isle of Man who instruct Isle
of Man Advocates and who are seeking to preserve the
confidentiality of information relating to the deliberations of
trustees are in a stronger position due to the additional exemption
which can be relied upon as a matter of Isle of Man data protection
law.

Given the above, not only does the use of Isle of Man Advocates
have benefits in terms of their knowledge and expertise of the
jurisdiction and its differences in respect of trust law, but this
case also illustrates that the Isle of Man has a small, yet
potentially important, advantage to trustees as a jurisdiction and
one which further compliments the Isle of Man’s status as a
leading offshore jurisdiction for trusts.

Originally published 07 July, 2020

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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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