The Executors of HRH Prince Philip, The Duke of Edinburgh (Deceased) v Guardian News and Media

The Attorney General is uniquely entitled to represent the public interest in applications concerning Royal wills, but his view is compelling evidence rather than a determination of the result. Media organisations have no automatic right to attend the initial hearing of an application for privacy, although fairness will normally require an opportunity to be heard at some stage where Article 10 rights are engaged. Open justice remains fundamental. A private hearing is justified only to the extent necessary for the proper administration of justice. In exceptional circumstances, risks to dignity, privacy and the purpose of the hearing may justify excluding the press, particularly where a full public judgment provides adequate transparency. The court must consider whether a lesser restriction would suffice.

After Prince Philip’s death, his Executor applied under rule 58 of the Non-Contentious Probate Rules 1987 to seal his will. The President of the Family Division held the application in private, attended only by the Executor and the Attorney General, and later published a public judgment. He ordered the will to be sealed for 90 years and directed that probate issue without a copy annexed. Guardian News and Media appealed, arguing that the Attorney General was not the exclusive representative of the public interest, that the media should have been heard on privacy, and that lesser restrictions on publicity should have been considered. The central issues concerned procedural fairness, open justice and the proportionality of excluding the press from the hearing.

The appeal was dismissed. The majority, Sir Geoffrey Vos MR and Dame Victoria Sharp P, held as follows.

1. Attorney General. The President was wrong to suggest that only the Attorney General could speak to the public interest in open justice as a matter of public law. The Attorney General is uniquely entitled to represent the public interest in this field, and his view is compelling evidence of great weight, but it is not determinative. The court may receive submissions from the media on whether a hearing should be public, private or subject to an intermediate arrangement.
2. Media participation. A non-party media organisation has no right to be heard before an initial order for a private hearing is made. However, where an order engages Article 10, fairness will normally require the media to have an opportunity to seek recall or variation at some stage. A v BBC [2015] AC 588 supported that approach. The President therefore made no legal error in declining to invite advance submissions.
3. Open justice and privacy. Open justice is fundamental, and derogations are exceptional. The court treated Civil Procedure Rules 1998 Part 39.2 as plainly relevant, although not strictly applicable. The requirement that privacy be necessary for the proper administration of justice was satisfied. Publicity could have defeated the purpose of the hearing, damaged confidentiality concerning personal financial matters, and generated prolonged conjecture harmful to the dignity and privacy of the Sovereign and her family.
4. Proportionality. The President had considered media attendance with legal representation. In the unusual circumstances, a single full public judgment adequately supplied transparency. Alerting the press or arranging attendance subject to reporting restrictions risked creating the very publicity the application sought to avoid. The statutory test under rule 58 of the Non-Contentious Probate Rules 1987 had been properly applied. The fact that ordinary law applies to the Royal Family does not require identical outcomes in exceptional circumstances.

Lady Justice King agreed with dismissal of the appeal. She had reservations about excluding the press and would have considered accredited attendance subject to a prohibition on reporting until judgment. Applying the appellate review standard, however, she could not conclude that the President’s discretionary decision was wrong.

• Court of Appeal (Civil Division): Appeal dismissed on all three grounds: [2022] EWCA Civ 1081.
• High Court of Justice, Family Division: The President of the Family Division held the hearing in private, published a public judgment on 16 September 2021, and on 12 October 2021 ordered probate of the will without a copy annexed and sealed the will for 90 years.