Royal Wills and JR of the Upper Tribunal

Mr Brown became a well-known figure in litigation circles when he sought to unseal the Will of Princess Margaret in the belief that it might reveal information showing him to be her illegitimate son. In the course of his unsuccessful litigation, it was revealed that there existed what had been described orally during the court proceedings as a “Practice Direction in respect of the handling of Royal Wills” (although there is dispute over precisely what form this document takes), produced by the-then President of the Family Division following liaison with the Royal Household.

Having failed to unseal the Will, Mr Brown requested a copy of the document from the Attorney General. He was refused, under section 37 FOIA. The First-tier Tribunal upheld that refusal (on which see Robin’s blog here). Mr Brown appealed to the Upper Tribunal on the grounds of inadequacy of the Tribunal’s reasons and a failure to properly apply the public interest test. The Upper Tribunal refused permission at an oral hearing.

Under the revised CPR procedure in rule 54.7A, Mr Brown sought permission to judicially review the refusal of permission to appeal by the Upper Tribunal. Following an oral hearing, Phillips J granted permission. It will now be a matter for the Attorney General (as respondent/defendant in the proceedings) to decide whether to defend the judicial review at a substantive hearing, or simply to defend the substantive appeal in the Upper Tribunal.

For a news report on the decision, see here.

Anya Proops appeared for Mr Brown before the High Court and Upper Tribunal. Jonathan Swift QC and Joanne Clement appeared for the Attorney General. Robin Hopkins appeared for the Commissioner at first instance.

Christopher Knight