England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 December 2013

1. MR JUSTICE PHILLIPS: The claimant requests permission to apply for judicial review of a decision of the Upper Tribunal dated 4 June 2013. The decision refused the claimant permission to appeal the decision of the First Tier Tribunal (Information Rights), dated 12 July 2011. The First Tier Tribunal determined that information requested by the claimant from the Attorney General under the Freedom of Information Act had been lawfully withheld. The information in question related to a "consensus" reached in or about 2002 between the Palace, the Attorney General and the judiciary relating to the practice and procedure of sealing Royal Wills.
2. The existence of the documents recording that consensus came to light in proceedings brought by the claimant against the executors of the estates of Her Majesty Queen Elizabeth the Queen Mother and Her Royal Highness Princess Margaret to unseal their Wills. The Court of Appeal in those proceedings referred to the fact that a quite lengthy document was approved by the former President of the Family Division. In the same judgment, at paragraph 8, the Court of Appeal had referred to fact that the two Royal Wills in question had been sealed pursuant to applications under S.124 of the Supreme Court Act 1981 and Rule 58 of the 1987 None Contentious Probate Rules. An order was made by the President of the Family Division sealing the Wills and providing in each case that the Wills should not be opened without the consent of the President of the Family Division for the time being. The Court of Appeal recorded that no public hearing took place in respect of the two applications, but it is not clear whether any hearing took place at all nor is it clear whether or not the former President provided reasons for making the orders, but if so, they have not been made public.
3. On the basis of that material Mr Jonathan Swift QC, who appeared for the Attorney General to resist this application, submits that we know that the agreement embodied in the document in question included provisions for an application to be made ex-parte in private to the President of the Family Division to seal a Royal Will. Insofar as the document recorded the private views of Her Majesty The Queen, Mr Swift suggested, without disclosing the contents of the document, that such views might include views as to who would "benefit from" the process outlined in the document.
4. As this is an application to review the decision of an Upper Tribunal refusing to grant permission to appeal, it is governed by the provisions of CPR 54.7A(7) which provides that the court will give permission to proceed only if it considers -

(a) that there is an arguable case, which has a reasonable prospect of success,that both the decision of Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against its permission to appeal was sought are wrong in law; and

(b) that either -

(i) the claim raises an important point of principle or practice; or

(ii)there is some other compelling reason to hear it.

5. I am satisfied that there is an arguable case with a reasonable chance of success in relation to the application of the public interest balance provided for under the Freedom of Information Act. It is arguable that the First Tier Tribunal and the Upper Tier Tribunal both failed properly to identify or give sufficient weight to the principles of open justice which appeared to be engaged in relation to an agreement to which the judiciary is party as to how a class of litigants should be dealt with in relation to their applications. It is arguable that the decision to override such principles was irrational.
6. I also consider it is arguable that the reasons as to why there could not have been disclosure of part of the document, which identified the procedure and practices which should be adopted in court proceedings, and any agreed test that should be applied by the presiding judge, were inadequate.
7. In my judgment the grounds which are arguable do give rise to important points of principle or practice relating to an agreement as to how the courts will carry out their function in relation to the application of statutory provisions and rules in relation to a particular class of litigants. The constitutional aspects of the matter also give rise to a compelling reason to grant permission. The fact that the application is brought by Mr Brown, whose underlying motives were described the Court of Appeal as scandalous and irrational, does not in my judgment alter the above factors.
8. Mr Swift argued that a "compelling reason" was absent given that the Court of Appeal had indicated that the matter would be determined by the President of the Family Division when remitted following the Court of Appeal's decision. However this is a seperate application and there was certainly no obligation on Mr Brown to pursue the matter at first instance. The fact that the Court of Appeal saw the matter as being suitable for determination by the President does not mean that it ceases to be a compelling matter in the absence of such determination.
9. I do not consider the other grounds on which it is said that inadequate reasons were given for the decision to be arguable. First, the claimant argues that there is an inconsistency between the description of the documents as containing practices and procedure relating to the sealing of Royal Wills on the one hand, and containing the private views of Her Majesty the Queen on the other. I fail to follow that argument, as there appears to be no reason at all why the document cannot contain both, as Mr Swift's supposition demonstrates.
10. Secondly, the claimant argues that insufficient reasons were given as to why the material fell within section 37 of the Freedom of Information Act. In my judgment the fact that the documents relate to communications with the Sovereign was fully and properly demonstrated. I do not give permission in relation to those grounds.
11. I therefore grant permission to apply for judicial review on the limited grounds indicated above.