Guardian News & Media v The Executor of HRH Prince Philip, the Duke of Edinburgh (deceased) & Her Majesty’s Attorney-General

In July 2021, the Executor of the estate of His late Royal Highness, The Prince Philip, Duke of Edinburgh, made an application under s. 124 of the Supreme Court Act 1981 and r. 58 of the Non-Contentious Probate Rules 1987 to seal up the Deceased’s will.  HM Attorney-General was joined as the Defendant to represent the public interest.  Following a hearing in private, the President of the Family Division made the order sought.  He then delivered a public judgment on 16 September 2021. Guardian News and Media (GNM) appealed against the decision.

1. Whether the President erred in law in directing himself that only the Attorney-General could speak as to the public interest.
2. Whether the President erred in law in deciding to hear the Executor’s substantive application in private without hearing from any media representatives.
3. Whether the President’s decision to hear the Executor’s application in private was disproportionate and unjustified because, GNM contended, he failed to consider any lesser interference.

Dismissing the appeal:

1. It had not been correct of the President to say that, as a matter of public law, only the Attorney-General was entitled to speak to the public interest in the proceedings being held in public. However, the argument over the precise role of the Attorney-General led nowhere.
2.   Whilst the principle of open justice was of critical importance, and it was only in rare and exceptional cases that it would be appropriate to sit in private, the media had no legal right to attend and make submissions whenever a party applied for a hearing to be held in private. Thus, the President had not erred in law in declining to give the media an opportunity to make submissions.
3. It was not correct to say that the President had failed to consider any lesser interference than a private hearing. He had done so and he had been entitled to derogate from the principle of open justice given the exceptional circumstances.

Given the exceptional circumstances of this case, it is perhaps not surprising that the Court of Appeal held that the President was not wrong to have heard the application in private before giving a public judgment.

It is likely that the decision will be cited for two reasons.

First, the reiteration of the point made in A v BBC [2015] AC 588 that, whilst there is no legal right for the media to be heard, they should normally, in fairness, be able to be heard at some stage where orders are made that engage article 10: [17].

Second, for the suggestions made by Lady Justice King about how the courts could act creatively to devise structures whereby justice is served in such a way that any interference with open justice is compromised to the minimal possible extent: [58].