Brown v Executors of the Estate of HM Queen Elizabeth The Queen Mother & Ors

The general effect of section 124 of the Supreme Court Act 1981 may be relied upon by any person seeking access to a proved will. The Attorney General does not have exclusive standing to invoke that provision.

Where an existing sealing order permits applications for the court’s consent, an applicant need not establish a private interest before challenging the order’s basis. If the sealing process was not transparent and the applicable criteria remain unidentified, a claim raising important questions about statutory openness, privacy and access should receive a substantive hearing unless it is necessarily doomed to fail.

The appellant applied for permission to inspect the sealed wills of Princess Margaret and the Queen Mother. He claimed a special interest because he believed himself to be Princess Margaret’s son, although the High Court found that belief irrational and unsupported.

The President of the Family Division struck out the application on 5 July 2007. He held that a public right of access could be asserted only by the Attorney General and that the appellant had no genuine private interest. Permission to appeal was granted because it was arguable that the sealing decisions and the appellant’s standing required further examination.

The appeal was confined to whether the appellant had standing to seek a substantive hearing concerning the sealing orders.

1. Appeal allowed. The appellant was entitled to a substantive hearing of his application to inspect the wills. His unsupported and irrational belief concerning his parentage did not make his wider challenge to the sealing orders incapable of success.

2. Sections 124 and 125 of the Supreme Court Act 1981 concern access to wills under the court’s control. Rule 58 of the Non-Contentious Probate Rules 1987 permits the court to withhold inspection where it would be undesirable or otherwise inappropriate. The statutory scheme lays down no procedure for seeking or resisting such an order.

3. The Attorney General did not have exclusive standing to invoke section 124. Gouriet v Union of Post Office Workers [1978] AC 475 concerned statutory criminal prohibitions and a private person’s ability to seek an injunction without the Attorney General’s consent. Nothing in section 124 similarly restricts the persons who may rely upon its general effect.

4. The original sealing orders permitted an individual to apply for the serving President’s consent. They imposed no express restriction upon the circumstances in which such an application could be made. The appellant’s application also challenged whether the wills should remain unavailable to the public generally.

5. The original process was not transparent, and neither its criteria nor the reasons for the orders were publicly known. The application therefore raised unresolved questions of public importance. These included the purpose of public inspection, the considerations governing Rule 58, the interest required to inspect a sealed will, the legitimacy of a special practice for royal wills, and the information about any such practice that should be public. Articles 8 and 10 of the European Convention on Human Rights might also be engaged.

6. The Court of Appeal did not decide those substantive questions. Until they had been examined with knowledge of the relevant material, it was impossible to conclude that the claim was doomed to failure. Special treatment for royal wills might be justified, and neither every negotiation nor every procedural detail necessarily had to enter the public domain. Those matters were for the President at the substantive hearing.

1. Court of Appeal (Civil Division): By [2008] EWCA Civ 56, allowed the appeal and held that the appellant was entitled to a substantive hearing of his application.

2. Court of Appeal (permission stage): On 17 October 2007, granted permission to appeal because the basis of the sealing decisions and the appellant’s standing were arguably open to examination. The eventual appeal was limited to standing.

3. High Court, Family Division: On 5 July 2007, the President of the Family Division struck out the appellant’s claim to inspect the wills.

4. High Court, Family Division: In 2002, the former President ordered that each will should not be opened without the consent of the serving President of the Family Division.