Robert Andrew Brown v HM Attorney General and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Thorpe,Mr Justice Holman |
| Judgment Date | 08 February 2008 |
| Neutral Citation | [2007] EWCA Civ 1121,[2007] EWCA Civ 1467,[2008] EWCA Civ 56 |
| Docket Number | Case No: B4/2007/1702/FAFMF,Case No: B4/2007/1702,Case No: B4/2007/1702A |
| Court | Court of Appeal (Civil Division) |
| Date | 08 February 2008 |
[2007] EWCA Civ 1121
Lord Justice Thorpe
Lord Justice Dyson and
Mr Justice Holman
Case No: B4/2007/1702
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION
(SIR MARK POTTER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr G Robertson QC (instructed by David Price Solicitors and Advocates) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
I would give permission to appeal in this case. I start with the approach taken by Sir Mark Potter to the decisions of the previous President to seal the two royal wills. He said at paragraph 41 of his judgment, in relation to the power given by rule 58 of the Non-Contentious Probate Rules 1987 to refuse to open a will to inspection, where inspection would be “undesirable or otherwise inappropriate”:
“…it is to be presumed that the power to do this is concerned with considerations of privacy and the perceived necessity in particular cases to protect from harm, harassment, intrusion or publicity those who are beneficiaries, potential beneficiaries, or otherwise interested under the will or who, for other reasons, may be adversely affected if the provisions of the will are open to public inspection. Equally, it is to be presumed that, in relation to such a decision, those considerations of privacy fall to be weighed against the manifest general statutory presumption in favour of openness in respect of all wills subject to probate.”
I respectfully agree with this analysis. In other words, rule 58 requires a balancing exercise to be undertaken weighing the competing considerations against each other. The present President expressed his concern at the outset of the hearing before him that he did not have any record of his predecessor's judgment or the reasons for her decisions. None of the parties was willing to agree that he should have sight of this material. It is not clear why the executors and the Attorney-General were unwilling to agree that the President should see the material. The appellant was presumably unwilling to agree unless the material was also made available to him. It is not surprising that such a condition was unacceptable to the President.
The President could have overridden the wishes of the parties and directed that the material be disclosed to him. In my judgment it is at least arguable that he should have done so.
In the event, without knowing what material his predecessor had and why she made her decisions, the President concluded at paragraph 43 of his judgment:
“I have no reason to doubt that, in coming to her decision, the former President would have had placed before her and would have taken into account the considerations which I have mentioned at paragraph 41 above.”
At paragraph 48 he said that he was not prepared to proceed on the basis that neither the Attorney-General nor the court:
“…analysed the position in the terms of the overall public interest or that the President failed to have regard to the balancing exercise required to be performed as between the statutory presumption of openness and the privacy interests of the beneficiaries under the wills.”
At paragraph 50 he said:
“Reverting to Mr Robertson's earlier points, he is of course correct that neither s.124 [of the Supreme Court Act 1981] nor Rule 58 [of the Non-Contentious Probate Rules 1987] make an exception for royalty. But there is no good reason to suppose that the President thought that they did, or that she considered that the 'unique status' of the royal family was a reason in itself to accord protection to its members. There would have been no reason, however, why that so-called status should not have carried considerable weight in assessing the particular need for protection from speculation, gossip and general intrusion into the privacy of those named under (or indeed omitted from) the provisions of the wills.”
Finally, he said at paragraph 52 that he proposed to treat his predecessor's decisions as decisions “regularly arrived at, having taken into account the public interest in open inspection at the time they were made”.
In my judgment, it is at least arguable that the President should have examined the material relied on by his predecessor and her reasons, before concluding that her decisions were unimpeachable.
Mr Geoffrey Robertson QC has referred to some material from which it might be inferred that the previous President was in fact applying a blanket approach in her application of rule 58 to the wills of members of the Royal Family. The former Prime Minister, in answer to a question raised on 13 May 2002 as to whether he would take steps to ensure that the will of Her Majesty the Queen Mother was published, said:
“In line with a long standing convention for dealing with the wills of senior members of the Royal Family, an order has been made by the High Court for the sealing up of the will of the late Queen Mother, which means that the will cannot be inspected or published. Therefore, I do not intend to take any steps to ensure publication of the will.”
This answer would tend to suggest that, contrary to what Sir Mark Potter said at paragraph 50 of his judgment, there is or may be a convention applied by the courts that the unique status of the Royal Family is considered to be a reason in itself to accord protection to its members. If that is so, the balancing exercise referred to by the President at paragraph 48 of his judgment routinely is not or at least may not be carried out, and was not or may not have been carried out in the case of the two wills with which we are concerned. For these reasons, I consider that it is arguable that Sir Mark Potter should not have reached the conclusion that he expressed at paragraph 43 in his judgment.
I turn to the question whether the appellant so plainly has no standing to bring these proceedings, that on that ground alone the President was right to strike them out. It seems to me that he was clearly right to conclude that the appellant had no private interest in bringing the proceedings. Mr Robertson does not seek to support the appellant's claim to be the child of Princess Margaret. That claim was manifestly unfounded. I agree with the President that the fact that the appellant's claim to be Princess Margaret's son is made in good faith is not sufficient to accord to him the requisite private interest to give him standing to pursue these proceedings.
But in his originating summons, the appellant also asserted a public interest in whether the previous President was right to seal the two wills. There is apparently no previous authority as to how the power given by rule 58 should be exercised and by what criteria it should be judged that inspection would be “undesirable or otherwise inappropriate”. The President held that the appellant has no standing to assert the general public interest. He relied on Gouriet v Union of Post Officer Workers [1978] AC 435 for the proposition that the general rule is that a private person is only entitled to sue in respect of the interference with a public right if either there is also an interference with a private right of his, or the interference with the public right would inflict special damage on him.
The President acknowledged that the strictness of this approach has been relaxed to some extent in relation to standing in judicial review proceedings. But, he observed, even in the different context of judicial review, the rules as to standing continue to be applied with some rigour. For example, he referred at paragraph 61 to what Sir John Donaldson, Master of the Rolls, said in R v Monopolies & Mergers Commission Ex p. Argyll Group Plc [1986] 1 WLR at 773H:
“The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re-applied as a matter of discretion on the hearing of the substantive application.”
For reasons that I have already given, I am of the view that this application is arguable.
In any event, it is in my judgment arguable that the President adopted too strict an approach to the question of standing. I refer to the valuable discussion by Professor Craig in his Administrative Law (5 th edition) at pages 718–753. The strict approach propounded in Gouriet is no longer applied in judicial review proceedings and there is much to be said for applying no more strict an approach to the issue of standing in any proceedings in which a claim is made to vindicate a public interest.
It is to be noted that as long ago as 1981, in R v IRC ex p Federation of Self-Employed and Small Businesses Limited [1982] AC 617, 644E, Lord Diplock said:
“It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single-public spirited tax payer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.”
If Sir Mark Potter is right, it follows that the President's application of Rule 58 to members of the Royal Family will never be capable of being...
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