The Executor of HRH Prince Philip, The Duke of Edinburgh (Deceased) v HM Attorney General
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Dame Victoria Sharp,Lady Justice King |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWCA Civ 1081 |
| Docket Number | Appeal Number: CA-2021-000119 |
| Court | Court of Appeal (Civil Division) |
Re: The Will of His Late Royal Highness Prince Philip, Duke of Edinburgh
and
[2022] EWCA Civ 1081
Sir Geoffrey Vos, MASTER OF THE ROLLS
Dame Victoria Sharp, PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Lady Justice King
Appeal Number: CA-2021-000119
Case No: FD21P00499
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Sir Andrew McFarlane, President of the Family Division
Royal Courts of Justice, Strand
London WC2A 2LL
Caoilfhionn Gallagher QC and Jude Bunting QC (instructed by Gillian Phillips of Editorial Legal Services) appeared on behalf of the Appellant (GNM).
Jonathan Crow QC and Adam Speker QC (instructed by Farrer & Co) appeared on behalf of the first Respondent (The Executor)
Sir James Eadie QC and W H Henderson (instructed by Government Legal Department) appeared on behalf of the second Respondent (the Attorney General)
Hearing dates: 20 and 21 July 2022
Sir Geoffrey Vos, Master of the Rolls, and Dame Victoria Sharp, President of the Queen's Bench Division:
Introduction
His Royal Highness Prince Philip, Duke of Edinburgh (Prince Philip) died on 9 April 2021. Sir Andrew McFarlane, President of the Family Division (the PFD), held a hearing in private on 28 July 2021 attended only by representatives of Prince Philip's executor, Farrer and Co Trust Corporation (the Executor), and by the Attorney General. The hearing was not publicly listed. The PFD delivered a public judgment on 16 September 2021. He made an order on 12 October 2021 directing the grant of probate of Prince Philip's will dated 5 June 2013 (the Will) without a copy annexed, and directing that the Will be sealed up for 90 years and only opened in the meantime with the consent of the PFD for the time being. The PFD also determined that a list of the 33 wills of deceased members of the Royal Family, 1 which are sealed and currently held by the PFD (in addition to the Will), should be published. That has already happened. He ordered that these wills too should be sealed for 90 years. 2
At the start of the hearing, the PFD determined, after submissions from only the Executor and the Attorney General, that the entire hearing should take place in private, but that the judgment should be made public. The PFD did not invite submissions from GNM or any other media organisation as to whether there should have been either a public hearing or limited press access to an otherwise private hearing.
Sections 124 and 125 of the Senior Courts Act 1981 provide that “[a]ll original wills which are under the control of the High Court” are to be open to inspection on payment of a fee “subject to the control of the High Court and to probate rules”. 3 The PFD was dealing with an application under rule 58 of the Non-Contentious Probate Rules 1987 (the NCPR), which provides that “[a]n original will … shall not be open to inspection if, in the opinion of [the court], such inspection would be undesirable or inappropriate”. The PFD decided at [51]–[52] that what was in the public interest was likely to be determinative of whether it was undesirable or inappropriate that the Will should be open to public inspection. Those terms were to be given their ordinary meanings, and the hurdle established by rule 58: “whilst requiring an applicant to make out a clear case for departing from the normal rule, [was] not an especially high one”.
The PFD concluded at [53] that the Attorney General's role in the proceedings was important, because: “[a]s a matter of public law, the Attorney General [was] uniquely entitled to represent the public interest”. As a result, the “Attorney General's statement that the public interest strongly [favoured] not permitting publication of the will” was to be regarded as compelling evidence of great weight on the question. That made it “effectively inevitable that the application must succeed”. The PFD's own assessment of the relevant factors at [54] led him also to conclude that “it was both undesirable and inappropriate for the will and accompanying documents to be open to public inspection”. As regards the role of the Attorney General on the publicity issue, the PFD said at [64] that he had accepted the argument that only he (the then Attorney General)
The PFD's reasons for his decision to seal the Will were, in summary, as follows. First, the exception from the ordinary rule as to the publication of wills was rooted in the unique status of the Sovereign and Head of State. Secondly, there was an inherent public interest in protecting the dignity of the Sovereign and the close members of Her family in order to preserve their position and allow them to fulfil their constitutional roles. Thirdly, there was real constitutional importance in maintaining the dignity of the monarchy, and a public interest in protecting the private rights of the Sovereign and close members of the Royal Family. Fourthly, none of the factors that might support the principle that wills should be open (for example, the avoidance of fraud or alerting potential third party claimants) was likely to apply to senior members of the Royal Family. Fifthly, whilst there might be public curiosity as to the private provisions in the Will, there was no true public interest in the public knowing such wholly private information. Moreover, the media's interest was commercial, and the likely degree of publicity was contrary to the maintenance of the dignity of the Sovereign. Finally, since the convention in favour of sealing Royal wills had been in place for over a century, Prince Philip was likely to have made the Will on the understanding that it was not going to be made public.
The PFD also concluded that both the argument about the privacy of the hearing and the hearing itself should be in private. He did so, contrary to his initial view, “[f]or essentially the same reasons that justified granting the substantive applications”. Whilst the CPR was not strictly applicable to the application because of CPR Part 2.1(2), CPR Part 39.2 was “plainly relevant to this issue”. CPR Part 39.2(3)(a), (c), (f) and (g) were particularly in point. They provided that a hearing must be held in private if it were necessary to do so to secure the proper administration of justice and either: (a) publicity would defeat the object of the hearing, (c) the hearing involved confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality, (f) the hearing involved uncontentious matters arising in the administration of a deceased person's estate, or (g) the court for any other reason considered a private hearing necessary to secure the proper administration of justice.
The PFD's essential reasons for deciding to hold an entirely private hearing were as follows: first, a series of announcements, hearings and a judgment would be likely to generate significant publicity and conjecture over an extended period, which would be “contrary to the need to preserve the dignity of the Sovereign and protect the privacy surrounding genuinely private matters”. The publicity would, therefore, in part, defeat the core purpose of the application. Secondly, since only the Attorney General could speak, as a matter of public law, to the public interest, there was, legally, no role for those who might represent the media at a public or private hearing in putting forward any contrary view of the public interest. Importantly, the PFD accepted the Executor's submissions at [32] as follows:
“… for the court to announce that an application had been made, that a hearing was subsequently going to be held to determine whether the substantive hearing should be in public or in private, for the court then to hold that hearing and, potentially, adjourn the substantive hearing to yet a further occasion followed, after a pause, by the handing down of judgment would create four or more occasions, spread out over a number of weeks, when the topic of the sealing of the will would be run and rerun extensively in the national and international media. News of the application and of the hearing(s) might generate wholly unfounded conjecture of a type that might be deeply intrusive to Her Majesty The Queen and Her Family. In contrast, a hearing conducted in private, but with a full public judgment, would allow the court to control the process and limit the publicity to one single event, namely the publication of the judgment”.
Against that background, Lady Justice King granted GNM permission to raise three grounds of appeal against the PFD's order. We raised the question at the start of the hearing as to GNM's status to appeal the PFD's order. We were satisfied, however, by GNM's submissions to the effect that there had been jurisdiction to entertain an appeal by GNM. 4
We have changed the order of GNM's grounds of appeal as follows: (1) the PFD had been wrong to hold that only the Attorney General could speak, as a matter of law, to the public interest on both media attendance at the hearing and the substantive issues. (2) The PFD had been wrong in law to deny the media an opportunity to make submissions on whether the substantive hearing should be in private. (3) The PFD wrongly failed to consider any lesser interference with open justice than a private hearing excluding all press representatives.
GNM submitted first that the PFD had misapplied Gouriet v. Union of Post Office Workers [1978] AC 435 ( Gouriet). The case did not decide that...
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