First judges will rule on a challenge by The Guardian newspaper over the secretive nature of a hearing over the Duke of Edinburgh’s will.
The newspaper appealed to the Court of Appeal against a judge’s decision to bar the press from a July 2021 hearing.
lawyers for the Guardian argued at a hearing last week that the fully private hearing on whether to keep the will secret was the “serious interference with open justice”.
Philip, the country’s longest-serving partner, died on April 9 last year at the age of 99, two months before he would have turned 100.
After the death of a high-ranking member of the royal family, it has been customary for more than a century for a request to seal their will to be made to the president of the Family Division of the High Court.
This means that the wills of high-ranking members of the royal family are not public the way a will normally would.
At last year’s hearing, the President of the Family Division, Sir Andrew McFarlane, heard legal arguments from lawyers seeking to protect Philip’s estate and the Attorney Generalrepresenting the public interest in such matters.
A fully private hearing like this is the most serious interference in open justice
The Guardian challenged the decision to hold a hearing on a request to privately seal the will, arguing it was “disproportionate and unjustified”.
No appeal is possible against the decision to seal the will.
The judges of the Court of Appeal will rule in the case on Friday at 10 a.m.
Caoilfhionn Gallagher, QC of Guardian News and Media, argued at last week’s hearing: “A fully private hearing like this is the most serious interference with open justice. It is an exceptional step that requires exceptional justification.
“In this case, (Sir Andrew) has decided to take such an exceptional step without even inviting or allowing members of the media to comment on whether such a proceeding was fair or justified. “
She said an “obvious alternative” to a fully private hearing could be for accredited journalists to attend, subject to limitations on what can be reported, as happens at family court hearings.
Ms Gallagher said that, if successful in her challenge, it is possible that The Guardian and other media organizations would like to make submissions and see some documents.
“Guardian News and Media should at least have the right to attend and observe,” she said.
The lawyer said it is likely that The Guardian would “want to make proposals in the role of a third party” to address the principle of open justice and the public interest.
She said: “We also expect it is likely that there will be others who would like to play a similar role, some will be content with just observing, some will also want to contribute.
“It doesn’t necessarily follow to comment on those points, The Guardian – or anyone else in an intervening role of a third party – should see all the documents.
“As happens in other proceedings, they may only need to see certain documents that help them address those issues.”
She said it is well established in common law for the media to serve as “a watchdog” in legal proceedings and as “both the eyes and ears of the general public”.
Speaking about the attorney general’s role in the closed hearing, she said the position holder “has no greater authority to address the court on the public interest of media presence at court hearings than the media itself”.
But attorneys general’s attorneys said, “The attorney is ideally placed to assist the court because she can represent the general public interest without non-public interest influences.”
They argued that the context of the situation was “exceptional due to the nature of the application” and that, quoting Sir Andrew, the practice of sealing royal wills had become a “convention that has now been in existence for more than a century.” “.
In their written comments, the lawyers said Sir Andrew “has committed no legal error” and is “applying the right principled approach to the issues”.
They said The Guardian must show that the judge’s conclusions were “wrong” and that this would be a “difficult hurdle”.
In an October ruling, Sir Andrew ordered Philip’s will to remain sealed for 90 years, and even after that, only be opened privately.
He said the ruling was published in order to make as many details public as possible without “compromising the conventional privacy afforded to the sovereign’s communications”.
The judge said it was in the public interest for him to clarify that he had neither seen nor been told the contents of Philip’s will, other than the date of execution and the identity of the named executor.
Sir Andrew said future rulings on applications to seal royal wills will remain closed and will therefore not be made public.