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

The Court of Appeal dismissed the Guardian News & Media's appeal against the President of the Family Division's orders to grant probate and to seal the will of Prince Philip for 90 years. The court held that the Non-Contentious Probate Rules 1987 (rule 58), read with sections 124 and 125 of the Senior Courts Act 1981, permit sealing wills where inspection would be "undesirable or inappropriate" and that the judge was entitled to conclude that the public interest in protecting the dignity and private rights of the Sovereign and close family members justified sealing in this case. The court found two limited legal errors in the judge's reasoning: the judge was wrong to suggest that only the Attorney General could, as a matter of public law, speak to the public interest; and the media nonetheless had no right to be heard at the initial ex parte stage of a privacy application. The court concluded that the judge had not acted unfairly in refusing to notify the media or to adopt a lesser interference with open justice given the exceptional circumstances, the availability of a full public judgment and the Attorney General's role in representing the public interest.

Background and procedural posture

The case concerned an application by the Executor for an order sealing the last will of Prince Philip following his death on 9 April 2021. The President of the Family Division (the PFD) held a private hearing on 28 July 2021 (attended by the Executor and the Attorney General), delivered a public judgment on 16 September 2021 and made an order on 12 October 2021 granting probate without a copy annexed and directing that the will be sealed for 90 years. The Guardian News & Media (GNM) appealed to the Court of Appeal.

Nature of the claim / relief sought

• Relief sought: to set aside the PFD's order, remit the matter for fresh determination and allow GNM to intervene and make submissions about (i) sealing of the will, (ii) restriction on record of estate value, (iii) process for unsealing, and (iv) procedure for Royal wills generally.

Issues framed by the Court of Appeal

1. Whether the PFD was wrong to hold that only the Attorney General could speak, as a matter of law, to the public interest on media attendance and substantive issues.
2. Whether the PFD was wrong in law to deny the media an opportunity to make submissions on whether the substantive hearing should be in private.
3. Whether the PFD failed to consider any lesser interference with open justice than an entirely private hearing excluding all press representatives.

The court's reasoning and resolution

• On issue (1) the court held that it was incorrect to state that only the Attorney General could speak to the public interest as a matter of public law. The Attorney General's view is of great weight and represents the public interest, but the media may, in fairness, be heard at some stage on article 10 issues; Gouriet was not authority for exclusive Attorney General representation.
• On issue (2) the court accepted that the media have no right as a matter of law to be heard at the initial, ex parte stage of a privacy application engaging article 10 and section 12 of the Human Rights Act 1998. Fairness requires that affected persons be able promptly to seek recall of an order and to be heard inter partes; A v BBC was followed.
• On issue (3) the court considered whether the judge should have devised lesser measures (for example accredited attendance subject to reporting restrictions). The court concluded that, in the exceptional circumstances of this case, the judge was entitled to determine that a single private hearing with a full public judgment preserved the public interest in openness sufficiently while protecting the dignity and privacy interests of the Sovereign and close family. Practical difficulties in notifying the press and the nature of the non-contentious probate application supported the judge's approach.

Subsidiary findings: the court accepted that CPR Part 39.2 provisions and the statutory test in rule 58 NCPR were properly applied, and that the PFD had in substance tested the Attorney General's position against his own analysis. The court emphasised that derogations from open justice are exceptional.

Appeal dismissed. The Court of Appeal found two limited errors in the Family Division judge's statements about the exclusive role of the Attorney General, but held that those errors did not render the overall decision unfair or unlawful. The judge did not err in law in refusing to notify the media or to allow submissions at the initial hearing and was entitled, in the exceptional circumstances, to adopt a private hearing with a full public judgment to protect the dignity and privacy interests of the Sovereign and close family members while preserving public scrutiny through publication of reasons and the Attorney General's role.

Appeal from the High Court of Justice, Family Division (Sir Andrew McFarlane, President of the Family Division). The PFD held a private hearing on 28 July 2021, delivered a public judgment on 16 September 2021, and made an order on 12 October 2021 granting probate and sealing the will for 90 years; those orders were appealed to the Court of Appeal.