Last year, the High Court made the decision that the late Prince Philip’s will should be “sealed up” for a period of 90 years, preventing anyone finding out who he had left his estate to. The decision was made by the President of the Family Division, Sir Andrew McFarlane, in his capacity as Head of Probate. As we said at the time,
While the judgment is a welcome dose of transparency, the extremely one-sided way the hearing was conducted – with the application to hear the case in private itself being heard in private, and with no one to represent the interests of anyone who might legitimately oppose such an application (such as a historian or royal biographer) – is a matter of some concern.
You can read our original post explaining the case here: Why can’t we read Prince Philip’s Will?
The Guardian newspaper was granted permission to appeal against the decision, on the ground that the court had erred in law in denying the media an opportunity to make submissions or at least to attend and hear submissions as to whether the substantive application should have been heard in private. That was said to represent a serious interference with open justice.
I attended the hearing in the Court of Appeal on 20 July in person and then followed the second day on the livestream video. Judgment was reserved but it has now been given: Guardian News and Media v The Executor of HRH The Prince Philip, Duke of Edinburgh  EWCA Civ 1081.
Disappointingly, from an open justice perspective, the appeal has been dismissed. The court has, however, given some guidance on how a future case of this nature could be approached, and in one important respect found the judgment below to be wrong.
The Guardian’s arguments
The appeal was not concerned with the judge’s substantive decision to seal up Prince Philip’s will and various related matters. Rather, it was concerned with (a) his decision to consider the substantive matter in private rather than in open court, and (b) the anterior decision that the preliminary hearing about whether the hearing should be in private should itself be in private.
The relief sought by the Guardian was, in essence, that the case should be heard all over again, but this time in accordance with the principles of open justice. If that were to happen, they might then be in a position, with more information and evidence, to make representations on the substantive matters.
It was clear from the questions put to the Guardian’s main barrister Caoilfhionn Gallagher QC that one of the questions the Master of the Rolls, Sir Geoffrey Vos was particularly concerned about was the role played in the proceedings by the Attorney General. Although this was listed as the third ground of appeal, it was argued first.
The judge had held that “as a matter of law, the Attorney General was uniquely entitled to represent the public interest” both on the issue of media attendance and the substantive issues in the case. He went on to say, in a later paragraph, that there was, legally, no role for those who might represent the media at a hearing in putting forward any contrary view of the public interest, because only the Attorney General could speak to it, as a matter of public law.
That, said the Guardian, was wrong. It misapplied an earlier case, Gouriet v Union of Post Office Workers  UKHL 5;  AC 435 which was about the public interest in a different context, and not concerned with the question raised in the present case.
The Guardian’s other two grounds of appeal were, first, that it had been unfair and wrong in law to deny the media the opportunity to make submissions on the issue of whether to hear the case in private; and secondly, that the decision then to go on and hear case entirely in private was disproportionate and unjustified.
Underpinning those submissions was the primacy of the principle of open justice. The cases are well known, as are the exceptions, whose application is usually governed by rule 39.2(3) of the Civil Procedure Rules. However, the Guardian’s argument that public interest in open justice was the same in all types of case, and that any derogation had to be justified as an exception regardless of the nature of the proceedings, was challenged by the bench, with the Master of the Rolls pointing out that proceedings to seal a will under the Non Contentious Probate Rules 1987 were different from the sort of criminal proceedings where, typically, the press were considered the “watchdogs of justice”. The clue was in the name: “non contentious”.
But it was argued for the Guardian that there was a legitimate public interest in the role of the monarchy and questions of equality before the law. The Royal Family received public funding and any lack of transparency about royal finances was a matter of legitimate public debate. The practice of sealing up royal wills had been going on for a century, there was no public record of any judgment or statement of reasons until the present case.
The Master of the Rolls raised the prospect, if the matter were to be aired or even listed in open court, that it might “open the floodgates” – by which he presumably meant that not only the press or media but other parties might claim the right to be heard on the matter. Where would it all end? There was some discussion, too, on what was meant by “accredited reporters” and how best to alert the media (but perhaps not other interested parties) of an impending hearing as to the privacy of which they might wish to make representations. The risk was that even listing the case would open a “Pandora’s box” of speculation in the media.
The other two judges sitting with the Master of the Rolls were Dame Victoria Sharp, President of the Queen’s Bench Division, and Lady Justice King, who was the judge who had given the Guardian permission to appeal. She seemed the most sympathetic, and more enthusiastic than the other two judges in canvassing the idea that a hearing might have proceeded with media reporters present, and able to apply a measure of scrutiny to the hearing, on the strict condition that they report nothing about it until the judgment was released. That way the hearing would not have been, as the Guardian put it, “in secret”.
The respondents’ arguments
The respondents to the appeal were the original parties to the case, the Executors of the will (the law firm Farrer & Co) represented by Jonathan Crow QC, and the Attorney General, represented by Sir James Eadie QC. They both essentially defended the judge’s original decision to hear the case in private, pointing out that the case did not involve contentious litigation, that the decision was a matter for the court’s discretion exercised in accordance with CPR r 39.2(3) and it was not for the appeal court to substitute its own view of how the case ought to have been handled.
Context mattered: the demands of open justice depended on the type of proceedings. In this case, a private hearing was necessary to protect the interests at stake, namely the dignity of the monarchy and the confidentiality of their financial affairs. Opening the door to the media would have created the very damage that the sealing process was designed to avoid. The fact that the judgment had been published afterwards meant that the case would get as much public scrutiny as it deserved and cured any deficiency in open justice.
The judgment of the Court of Appeal
All three judges agreed that the appeal should be dismissed but the main judgment was given by Sir Geoffrey Vos and Dame Victoria Sharp. They held that the judge had been wrong to say that only the Attorney General could, as a matter of public law, speak to the public interest in the proceedings being held in public. The case of Gouriet was not dealing with that issue at all.
But as the previous cases involving applications to seal royal wills demonstrated, the Attorney General was entitled to be a party to the proceedings in his or her historic role as the guardian of the public interest, and to express a view as to what form of hearing was in the public interest.
The media might also, in fairness, be heard on such a question, since the decision engaged the right to freedom of expression under article 10 of the Human Rights Convention (and section 12 of the Human Rights Act 1998); but if they were not parties to the proceedings they had no right to be heard before any order as to a private hearing was made.
While endorsing the Guardian’s submissions as to the critical and constitutional importance of open justice and the rareness and strictness of the exceptions, Sir Geoffrey Vos and Dame Victoria Sharp said the fact that the media had no legal right to attend and make submissions whenever a party applied for a hearing to be held in private meant that the failure to allow them an opportunity to do so on this occasion was not wrong in law.
Nor did the judge act wrongly or unfairly in failing to consider a lesser interference with open justice. First, it was hard to see how the media could have been alerted to the fact that the hearing was taking place without risking the media storm that was feared. Secondly, this was a case where open justice was adequately served by the transparency involved in publishing a full judgment afterwards. Thirdly, this was not litigation in the ordinary sense: it was a non-contentious probate application, one of the exceptions listed in CPR r 39.2(3). It had been “necessary” to sit in private to secure the proper administration of justice. Fourthly, even in relation to the more general substantive decisions made by the judge in relation to all royal wills, the media could always appeal or apply to vary those parts of the order, and had not done so.
Lady Justice King’s separate judgment
Lady Justice King agreed with the other two judges on the other points, but said she had significant reservations as to the question of whether some lesser interference with the principle of open justice could have been devised whilst maintaining the dignity of the Sovereign and the privacy of the Queen and the Royal Family.
For decades, applications to seal a royal will had been dealt with by the President of the Family Division with little or no formality. Then, in the case of Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother  EWCA Civ 56;  1 WLR 2327, which concerned the estates of the late Queen Mother and Princess Margaret, the Court of Appeal had considered the practice but had left certain general issues relating to the sealing of royal wills to be determined by the judge at first instance. But the appellant in that case had not pursued the matter so no such determination took place.
The matter had therefore come before the judge as the current President of the Family Division in circumstances where the need for a transparent process, according to identified criteria, had been identified some years previously. Yet it appeared that the judge did not consider a lesser interference with the principles of open justice, for example by permitting accredited members of the press to attend subject to restrictions as regards what could be reported about the hearing.
There might be challenges with such an approach, given the difficulty in identifying the “accredited press”, the proliferation of legal bloggers and the ability for information instantaneously to be transmitted across the globe via the internet. But the logistical challenges should not of themselves justify a wholly private hearing when the interests of justice would be served by the media being present on terms. For example, in the Poppi Worthington case, F v Cumbria County Council and M (Fact-Finding No. 2)  EWHC 14 (Fam), a careful structure had been put together by Mr Justice Peter Jackson which prevented reporting until the end of each day so allowing the court to impose restrictions if necessary, in the light of the day’s evidence.
But in the final analysis it was a matter for the judge’s discretion and her Ladyship could not say the judge in the present case had been wrong to conclude that publication of a full judgment after the event was sufficient to meet the needs of the case.
Having heard alternative solutions of the type discussed by Lady Justice King in the course of the argument, it was disappointing that the judgments, including hers, did not in the end lay down any definitive guidance on how such a case should be handled in future. Indeed, they seemed in the main judgment to be saying the Guardian should have applied directly to the President of the Family Division to reopen the case soon after judgment, rather than mounting an appeal. The judgment reiterates that media organisations who are not party to the proceedings initially, but are aggrieved by the court’s decision, have no automatic right to be heard but are entitled to apply to reverse or vary the court’s order. That presumably applies equally to anyone else aggrieved by the decision, such as a legal blogger, academic researcher, or in this case royal archivist or biographer, but it was not fully canvassed in the appeal because the Guardian’s case was primarily focused on the position and expectations of the media.
The only positive point of law to emerge from the judgment was the clarification of the Attorney General’s role, which is a peculiar one given the nature of the proceedings, and derives more from custom and practice than law. But at least we now know that in a case where the only two parties are lawyers for the Royal Family and the chief lawyer for the Government (ie for two different manifestations of the Executive) the “public interest” in suppressing public knowledge of or access to the proceedings is not solely to be determined by the views of the Attorney General.
We have a small favour to ask!
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Featured image: The giant screens of Piccadilly Circus paying respect to His Royal Highness Prince Philip the Duke of Edinburgh with the announcement of his death. London – 10th April 2021, via Shutterstock.