Gone fishing: legal professional privilege and data subject access requests in trust law Dawson-Damer v Taylor Wessing LLP [2020] EWCA Civ 352

2020 ◽  
Author(s):  
Charles Towl
Keyword(s):  
Data Protection ◽  
Access Request ◽  
Legal Professional ◽  
Trust Law ◽  
Court Of Appeal ◽  
Data Subject ◽  
Made In

Abstract Following a data subject access request made in 2014, the Court of Appeal has recently taken the opportunity to consider the nature of joint privilege. By affirming that joint privilege is a procedural issue, rather than a substantive element of trust law, the court removed it from the remit of offshore restrictions upon trustee disclosure duties. However, the Data Protection Act 2018 may yet frustrate future attempts by beneficiaries to use subject access requests to pursue fishing expeditions.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

scholarly journals The Illusory Trust Doctrine: Formal or Substantive?

2020 ◽  
Vol 51 (2) ◽  
pp. 193
Author(s):  
Mark Bennett
Keyword(s):  
New Zealand ◽  
Privy Council ◽  
Cook Islands ◽  
Trust Law ◽  
Court Of Appeal

"A document is put before us. Does it or does it not create a trust?" This article considers the illusory trust doctrine (ITD) and claims that although the ITD has been criticised as doctrinally unfounded and therefore based in substantive, non-legal reasons rather than pre-existing law, there are formal reasons of trusts law to support it. It begins by considering Atiyah and Summers' concepts of form and substance, and then examines how they apply in the context of equity (in general), and then trusts law (in particular). It then briefly considers a number of recent decisions on the ITD: the four cases constituting the Clayton v Clayton litigation in New Zealand, Pugachev and the Cook Islands Court of Appeal and Privy Council decisions in Webb v Webb. Finally, it analyses these ITD decisions using the form and substance distinction, concluding that it is arguable that the ITD is grounded in principles of established trust law, as opposed to purely substantive reasoning.

Article 30 Records of processing activities

2020 ◽  
Author(s):  
Waltraut Kotschy
Keyword(s):  
Impact Assessment ◽  
Data Protection ◽  
Personal Data ◽  
Data Flows ◽  
Right Of Access ◽  
Data Subject ◽  
General Conditions

Article 13 (Information to be provided where personal data are collected from the data subject); Article 14 (Information to be provided where personal data have not been obtained from the data subject); Article 15 (Right of access by the data subject); Article 24 (Responsibility of the controller); Article 32 (Security of processing); Article 35 (Data protection impact assessment); Article 37 (Designation of a data protection officer); Article 49 (Derogations for specific situations concerning transborder data flows); Article 83 (General conditions for imposing administrative fines)

Article 9 Processing of special categories of personal data

2020 ◽  
Author(s):  
Ludmila Georgieva ◽  
Christopher Kuner
Keyword(s):  
Decision Making ◽  
Data Protection ◽  
Personal Data ◽  
Genetic Data ◽  
Biometric Data ◽  
Individual Decision Making ◽  
Vital Interest ◽  
Data Portability ◽  
Definition Of ◽  
Data Subject

Article 4(1) (Definition of personal data); Article 4(2) (Definition of processing); Article 4(11) (Definition of consent); Article 4(13) (Definition of genetic data, see also recital 34); Article 4(14) (Definition of biometric data); Article 4(15) (Definition of data concerning health, see also recital 35); Article 6(4)(c) (Lawfulness of processing, compatibility test) (see too recital 46 on vital interest); Article 13(2)(c) (Information to be provided where personal data are collected from the data subject); Article 17(1)(b), (3)(c) (Right to erasure (‘right to be forgotten’)); Article 20(1)(a) (Right to data portability); Article 22(4) (Automated individual decision-making, including profiling); Article 27(2)(a) (Representatives of controllers or processors not established in the Union); Article 30(5) (Records of processing activities); Article 35(3)(b) (Data protection impact assessment) (see too recital 91); Article 37(1)(c) (Designation of the data protection officer) (see too recital 97); Article 83(5)(a) (General conditions for imposing administrative fines).

Data Protection

2016 ◽  
Author(s):  
Tibor Tajti
Keyword(s):  
Data Protection ◽  
Personal Data ◽  
Commercial Law ◽  
Insolvency Law ◽  
Member States ◽  
Privacy Law ◽  
Data Protection Directive ◽  
Data Protection Law ◽  
Made In

Chapter VI is a new chapter in the EIR. Its presence signals the importance that data protection law has gained in Europe since the adoption of the Data Protection Directive 95/46/EC (DPD) and Regulation 45/2001. Although the DPD is not—though it comes close to—a maximum harmonisation directive, its implementation by Member States by the end of 1998 increased data protection standards on national levels as well. Yet the concrete reason that led to the addition of this Chapter is the expanded scope of the EIR as far as the exchange and publication of personal data is concerned. The expansion and thus the enhanced need for data protection is due in particular to the provision made in the recast EIR for newly established interconnected national insolvency registers, accessible via the European e-Justice Portal. This provision has been made at a time when data protection law is increasingly recognised as a ‘stand-alone’ subject, emancipated from privacy law, as expressed indirectly also by the popularisation of the ‘data protection’ nomenclature originating in the German term ‘Datenschutz’. This has clear implications for private and commercial law, including insolvency law.

Conclusions: Striving for Data Subject Control within and beyond Data Subject Rights

2021 ◽  
pp. 215-236
Author(s):  
Helena U. Vrabec
Keyword(s):  
Data Protection ◽  
Holistic Approach ◽  
Control Rights ◽  
Data Protection Law ◽  
Article 5 ◽  
Data Subject

Chapter 9 is a concluding section of the book. It takes a look at the rights from the perspective of effectiveness and analyses them in a more structured manner by utilising a framework of data protection principles from Article 5 of the GDPR. The analysis shows that data subjects’ control rights are sometimes ineffective. However, this part of data protection law must be, nonetheless, maintained, because it not only serves the objective of control but has other objectives too. To mitigate the ineffectiveness, some alterative measures are considered, for example technological solutions and legal mechanisms outside of data protection law. The chapter refers to these alternatives as ‘a holistic approach to control’.

The Right of Access under EU Data Protection Law

2021 ◽  
pp. 104-128
Author(s):  
Helena U. Vrabec
Keyword(s):  
Decision Making ◽  
Data Protection ◽  
Shared Data ◽  
The Core ◽  
Data Protection Law ◽  
The Right ◽  
Automated Decision Making ◽  
Right Of Access ◽  
Data Subject ◽  
Core Part

Chapter 5 focuses on Article 15 of the GDPR and explains the scope of the information that can be accessed under the right. The chapter then discusses the importance of the interface to submit data subject access requests. The core part of Chapter 5 is the analysis of the regulatory boundaries of the right of access and various avenues to limit the right, for instance, a conflict with the rights of another individual. Finally, the chapter illustrates how the right of access is applied in the data-driven economy by applying it to three different contexts: shared data, anonymised/pseudonymised data, and automated decision-making.

22. Data Protection and Data Exclusivity

2019 ◽  
pp. 497-512
Author(s):  
Justine Pila ◽  
Paul L.C. Torremans
Keyword(s):  
Data Protection ◽  
Patent Protection ◽  
Personal Data ◽  
Pharmaceutical Sector ◽  
Data Exclusivity ◽  
The Law ◽  
Data Subject

This chapter examines the law on data protection and data exclusivity. It focuses on the new GDPR Regulation. It covers rules on lawful processing of personal data, on the security of the processing, on the transparency of the processing, and on promoting compliance. It also discusses the rights of the data subject, the transfer of personal data to third countries, and the period of data exclusivity granted to the pharmaceutical sector independent of any form of patent protection.

Mr. Justice Browne's Judgment in the Anisminic Case

1969 ◽  
Vol 27 (2) ◽  
pp. 230-250
Author(s):  
H. W. R. Wade
Keyword(s):  
Extensive Review ◽  
House Of Lords ◽  
Court Of Appeal ◽  
Made In

ALL those—and they will be many—concerned with the case of Anisminic Ltd. v. Foreign Compensation Commission [1968] 2 Q.B. 862 (C.A.), [1969] 2 W.L.R. 163 (H.L.) will have noticed the references made in the Court of Appeal and in the House of Lords to the judgment delivered by Browne J. at first instance. This judgment is of particular interest and importance, not only because it was upheld by the House of Lords after being reversed by the Court of Appeal, but also because it made an extensive review and analysis of the authorities, which the higher courts to some extent adopted and incorporated by reference. Unfortunately this valuable judgment has not been reported, presumably because it ran to some 40,000 words in length.

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