Following the sad news of the passing of Her Majesty Queen Elizabeth II and the period of mourning across the nation. There have been numerous discussions about the relationship between the press and the monarchy. In a judgment made prior to the Queen’s passing these issues were once again highlighted.
In Executor of HRH Prince Philip, the Duke of Edinburgh (Deceased) and another v Guardian News and Media. The Court of Appeal decides that the President of the Family Division was right in law to deny the media an opportunity to make submissions on public interest in relation to hearing the matter in private and the sealing of the late His Royal Highness Prince Phillip’s Will.
Background
The Appeal was a result of a decision by the President of the Family Division in a hearing held in private on 28 July 2021. The hearing was attended by a representative of Prince Phillip’s executor (Executor), and by the attorney general, the hearing was not listed publicly.
The President delivered a public judgment on 16 September 2021. On 12 October 2021, he made an order directing the grant of probate of Prince Phillip’s Will dated 5 June 2013 without a copy annexed and directed that the Will be sealed for 90 years.
The decision was made after submissions from only the Executor and the attorney general, in which the President determined that the entire hearing should take place in private, but that the judgment would be made public. The President did not invite submissions from any media organisations as to whether there should have been a public hearing or limited press access.
Guardian News and Media (GNM) contended that the media should have been invited to make submissions in the public interest, mainly in relation to hearing the matter in private and sealing the Will.
Key considerations
The key issues in the appeal were firstly whether the circumstances were such that Sections 124 and 125 of the Senior Courts 1981 were applicable.
This legislation provides that Wills under the High Court should be available for inspection upon payment of a fee. This was considered against an application under Section 58 of the Non-Contentious Probate Rules 1987 which allows the Court to direct that Wills will not be open to public inspection if the Court finds it “inappropriate” or “undesirable.”
The Court would need to consider the strong consideration of the public interest in this case.
The three grounds of appeal that the Court had to consider were:
1. Was the President wrong to hold that only the attorney general could speak, as a matter of law, to the public interest on both media attendance at the hearing and the substantive issues?
2. Was the President wrong in law to deny the media an opportunity to make submissions on whether the substantive hearing should be in private?
3. Did the President wrongly fail to consider a lesser interference with open justice than a private hearing excluding all press representatives?
Court’s decision
On the first ground, the Court found that the President had been wrong to consider that only the attorney general could speak to the public interest as a matter of law. However, the Court agreed with the conclusion that the media had no right to representation on the same point. But they may be invited in the “interests of fairness”.
The second ground was considered closely alongside the first and the Court endorsed the submissions of Guardian News and Media (GNM) regarding the ‘critical and constitutional importance of open justice’ and how it is only appropriate for a Court to sit in private in “rare cases”. However, in this case, it did not as GNM contended, give the media a legal right to attend and make submissions whenever a party applies for a hearing to be held in private. The President had therefore not made any legal errors in not allowing submissions from the media.
The last ground focused on the point of open justice and which the Court found to be the most substantive point. The Court considered the significant media interest which surrounded the Royal Family, their personal lives, and private affairs and found that even if strict reporting restrictions had been in place a media storm would still ensue. Further, it was held that in this case, open justice had been served by the transparency involved in publishing a full judgment and that the President had struck the right balance between open justice and preserving the ‘dignity and private rights of the Sovereign’.
Comment
The case has highlighted the importance of “open justice” and how the views of the public especially in relation to the Monarchy are more pronounced than ever. However, there has been a rare exception in which the basis for making the hearing private had been to support “the need to preserve the dignity of the Sovereign and protect the privacy surrounding genuinely private matters”.
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