Analysis
This was an appeal against the decision of the president of the Family Division (PFD) to seal for 90 years the will of HRH The Prince Philip, Duke of Edinburgh, to publish a list of 33 sealed wills of deceased members of the Royal Family, and to seal those 33 wills for 90 years (Re Will of HRH The Prince Philip, Duke of Edinburgh [2021]).
At the start of the original hearing, the PFD directed that the hearing should take place in private, having only heard submissions from Prince Philip’s executor and the Attorney General (AG), but that the judgment should be made public. No submissions were invited from any media organisation. The PFD had held that the ‘hurdle’ imposed by ss124 and 125 Senior Courts Act 1981 and r58 Non-Contentious Probate Rules 1987 for sealing a will was ‘not an especially high one’. He further concluded that the AG’s role was important because he was uniquely entitled to represent the public interest. The AG’s statement that the public interest strongly favoured sealing was therefore treated as compelling evidence of great weight on the question and made it ‘effectively inevitable that the application must succeed’. The PFD’s own assessment was also that it was undesirable and inappropriate for the will and accompanying documents to be open to public inspection. The PFD also accepted a submission that only the AG could speak to the public interest so that there was no role for media representatives to put forward a contrary view of it.
The PFD’s reasons for sealing Prince Philip’s will were that:
- the historic exception from publication for royal wills was rooted in the unique status of the Sovereign;
- there was an inherent public interest in protecting the Sovereign and close members of their family;
- there was a constitutional importance in maintaining the dignity of the monarchy and a public interest in protecting the private rights of the Sovereign and their family;
- the factors in favour of the principle that wills should be open were unlikely to apply to senior members of the Royal Family;
- there was no true interest in the public knowing wholly private information;
- the media’s interest was commercial,
- the likely degree of publicity was contrary to maintaining the dignity of the Sovereign; and
- Prince Philip was likely to have made his will on the understanding that it would not be publicised.
The PFD’s reasons for hearing the application in private were ‘essentially the same’ as for the substantive application. While the CPR did not strictly apply, CPR r39.2 was treated as ‘plainly relevant’. The PFD held that a series of announcements and hearings and a judgment would generate publicity and conjecture over an extended period which would be contrary to the need to preserve the dignity of the Sovereignty and preserve privacy surrounding genuinely private matters. Since only the AG could speak to the public interest, there was no role for the media to put forward any contrary view of the public interest. A private hearing with a public judgment would allow the court to control the process and limit publicity to a single event.
Guardian News and Media (GNM) appealed on three grounds:
- (1) that the PFD had been wrong to hold that only the AG could speak to the public interest on both media attendance and the substantive issues;
- (2) that 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; and
- (3) that the PFD had wrongly failed to consider any lesser interference with open justice than a private hearing excluding all press representatives.
The court invited submissions on whether it would have been appropriate to allow the media to attend on terms that they did not report on what had occurred until the judgment was published.
Held (dismissing the appeal, King LJ reasoning differently on Issue 3):
Issue 1: was the PFD wrong to hold that only the AG could speak to the public interest?
The PFD was wrong to suggest that only the AG could speak to the public interest in open justice as a matter of public law. While the AG’s views on where the public interest lies were of great weight, all other things being equal, the court can receive submissions from the media as to whether a specific hearing should be in public or in private or somewhere in between. The media should normally be able to be heard at some stage where orders are made which engage Art 10 ECHR, though they were not entitled as a matter of right to be heard at the initial hearing. Gouriet v Union of Post Office Workers [1977] and A v BBC [2014] referred to.
GNM had, through the appeal, now been heard. This resolved the first issue.
The judge was right as to his main reason for refusing to ask for or hear submissions from the media – the process would have generated publicity and conjecture over an extended period which would have been contrary to the need to preserve the dignity of the Sovereign and protect their family’s privacy.
The PFD also correctly understood that the AG was a party to proceedings in his role as guardian of the public interest (Attorney General v Blake [1998] and Brown v Executors of the Estates of HM Queen Elizabeth, the Queen Mother [2008] referred to). He was also right to understand that there was no requirement for the media to attend the hearing at which the application for a private hearing was made. The AG was uniquely entitled to represent the public interest and his view that a particular course was strongly in the public interest was to be regarded as compelling even if not determinative.
Issue 2: was the PFD wrong to deny the media an opportunity to make submissions on whether the substantive hearing should be in private?
It is only in rare cases that it is appropriate for a court to sit in private (r39.2 CPR, Scott v Scott [1913] and Re S [2005]) referred to). Derogations from open justice must be reserved for exceptional situations.
The media does not, however, have a legal right to attend and make submissions whenever a party applies for a hearing to be held in private (A v BBC referred to). The PFD made no legal error in declining to give the media an opportunity to make submissions.
Issue 3: did the PFD wrongly fail to consider a lesser interference with open justice than a private hearing excluding all press representatives?
There was no substance in the criticism that the PFD failed to consider any lesser interference. He did consider the possibility of the media attending to make submissions.
The court had invited submissions on whether it would have been appropriate to allow the media to attend on terms that they did not report on what had occurred until the judgment was published. The PFD could not, however, be criticised for failing to adopt this course for four reasons.
First, the media could not in practice have been alerted to the hearing without risking a media ‘storm’. Even if undertakings had been sought before the name of the case had been revealed, they could not properly have been offered. If the name were revealed without undertakings in place, the risks would have materialised.
Secondly, open justice was adequately served by publishing a full judgment, having regard to the public interest in protecting the dignity and private rights of the Sovereign and their family.
Thirdly, this was a non-contentious probate in which the private interests of testators and their families was important. Publicity might have defeated the object of the hearing and damaged confidentiality in personal financial matters, even if not uncontentious the issues were private matters arising in the administration of an estate, and there were other reasons mentioned for why a private hearing was necessary for the proper administration of justice.
Fourthly, the part of the hearing concerning the more general issue of royal wills flowed directly from what the judge had described about Prince Philip’s will, and the media had an opportunity to appeal or apply to vary the general parts of the order.
King LJ’s reasoning on Issue 3:
The PFD did not consider a lesser interference such as permitting an accredited member of the press to attend subject to reporting restrictions. The court was able to think creatively to devise a structure whereby justice is served with the minimum possible interference with the principle of open justice (Manchester City Football Club v Football Association Premier League Ltd [2021] and Guardian News and Media v Incedal [2015] referred to).
While permitting attendance subject to reporting restrictions would have created complications, the logistical challenges should not of themselves have served as a justification for a hearing to be wholly private when the interests of justice would be served by the media being present on terms (F v Cumbria County Council & M (Fact Finding No 2) [2016] referred to).
The PFD in his discretion decided that the publication of a full judgment met the needs of the case. The AG, who represented the public interest, also regarded that course as proportionate and appropriate. While King LJ would herself have sought to find a route to enable the media to hear and scrutinise the application, the PFD’s decision was within his discretion (Re W (Children) [2016] and R (AR) v Chief Constable of Greater Manchester Police [2018] referred to).
JUDGMENT SIR GEOFFREY VOS, MASTER OF THE ROLLS; DAME VICTORIA SHARP, PRESIDENT OF THE QUEEN’S BENCH DIVISION; AND LADY JUSTICE KING: Introduction [1] 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 …Continue reading "Executor of HRH Prince Philip v HM Attorney General & anr [2022] WTLR 1251"