Guardian loses legal challenge after hearing of Duke of Edinburgh’s will

The Guardian newspaper has lost an appeal over the secret nature of a court hearing dealing with the Duke of Edinburgh’s will.

That paper brought a challenge to the Court of Appeal against the judge’s decision to exclude the press from hearing in July 2021.

Lawyers for the Guardian argued at a hearing last week that an entirely private hearing on whether the will should be kept secret was “the most serious interference with open justice”.


Philip died in April 2021, two months before what would have been his 100th birthday (Adrian Dennis/PA)

Philippe, the country’s longest-serving unionist, died on April 9 last year at the age of 99, two months before he had turned 100.

After the death of a senior member of the royal family, it has been a tradition for more than a century that an application is made to seal their will to the head of the High Court’s family division.

This means that the wills of senior members of the royal family are not open to public inspection the way a will usually is.

At last year’s hearing, Sir Andrew MacFarlane, chairman of the Family Division, heard legal arguments from lawyers representing Philip’s estate and the attorney general representing the public interest in such matters.

Such an entirely private hearing is the most serious interference with open for guardian

The Guardian challenged the decision to privately hear an application to seal the will, arguing it was “inconsistent and unfair”. There was no appeal against the decision to seal the will.

Dismissing the newspaper’s appeal, the senior judges ruled that this was not a case where “fairness demanded that the media be informed of the hearing or asked to make submissions before the decision”.

Sir Geoffrey Voss and Dame Victoria Sharpe, sitting with Lady Justice King, said they could not see how the media could have been alerted to the fact that the hearing was taking place “without risking a media storm”. .

He added: “The hearing was at an extremely sensitive time for the sovereign and his family, and those interests would not have been protected if the hearing had been reported for a longer period in the press, and not on a single occasion, for which full reason The decision has been published.

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Palbearers carrying the coffin of the Duke of Edinburgh during his funeral service at St George’s Chapel, Windsor Castle (Dominic Lipinski/PA)

The judges also said that the circumstances of the case were “extraordinary”.

Sir Geoffrey and Dame Victoria said: “It is true that the law applies equally to the royal family, but this does not mean that the law produces equal consequences in all situations.

“These circumstances, as we have said, are extraordinary.

“We are not sure there is a specific public interest in knowing how the wealth of the Royal Family is distributed.

“A perceived lack of transparency may be a matter of legitimate public debate, but (non-controversial probate rules) allow wills and their values ​​to be hidden from the public eye in some cases.

“The judge properly applied the statutory test in this case.”

Caiolfione Gallagher QC for Guardian News & Media argued at last week’s hearing: “An entirely private hearing of this kind is the most serious interference with open justice. It is an extraordinary step that requires extraordinary justification.”

“In this case, (Sir Andrew) decided to take such an extraordinary step without inviting or allowing members of the media to make submissions as to whether such procedure was appropriate or appropriate.”


Wills of senior members of the royal family are not open to public inspection (Chris Jackson/PA)

Attorney General’s lawyers argued: “Attorney is uniquely well placed to assist the Court because she can represent the interest of the general public free from the influence of any non-public interest.”

He argued that the reference to the situation was “extraordinary due to the nature of the application” and, quoting Sir Andrew, that the practice of sealing royal wills had become a “convention that has been in place for over a century now”. .

In their written submissions, the lawyers stated that Sir Andrew had “made no legal error” and “applied the correct principled approach to the issues”.

He said The Guardian would have to show that the judge’s findings were “wrong” and that doing so would be a “difficult hurdle”.


Sir Andrew MacFarlane (Courts and Tribunals of Judiciary / PA)

In a ruling in October, Sir Andrew ordered that Philip’s will remain sealed for 90 years and can only be opened privately thereafter.

He said the ruling was published to make public as many details as possible “without compromising on the traditional secrecy afforded for communications from the sovereign”.

The judge said it was in the public interest for him to clarify that he had not seen or disclosed the contents of Philip’s will other than the date of its execution and the identity of the appointed executor.

Sir Andrew said any future decisions on applications to seal the royal will would remain closed, and therefore would not be made public.