The legal action follows the decision made last September by Sir Andrew McFarlane, president of the family division of the high court, that the Duke’s will should remain hidden from public view for 90 years.
The Guardian is arguing that the case should be reheard in the high court because McFarlane failed to consider whether reporters should have been allowed to attend the original hearing or at least make representations for being allowed to attend. The paper argues that this failure amounts to an interference with open justice.
Lady Justice King, one of the appeal judges, said: “There is a real prospect of the applicant succeeding on the ground that the high court erred in law in denying the media an opportunity to make submissions, or at least to attend and hear submissions, as to whether the substantive application to seal the will of His Late Royal Highness, the Prince Philip, Duke of Edinbugh should be heard in private.”
Ordinarily wills are in the public domain as soon as probate is granted in order to ensure correct implementation, but since 1910 there has been an exception for wills belonging to senior members of the royal family upon the condition that they make legal applications for secrecy. The high court grants these applications in closed hearings.
A list of the secret wills are kept in a locked safe in the high court, but in November, in a move towards transparency, McFarlane published the list of those wills whilst keeping the contents secret.
In September McFarlane decided that the Duke’s will should be kept secret, adding: “The answer to the question ‘why should there be an exception for senior members of the royal family?’ is, in my view, clear: it is necessary to enhance the protection afforded to the private lives of this unique group of individuals, in order to protect the dignity and standing of the public role of the sovereign and other close members of her family.
“While there may be public curiosity as to the private arrangements that a member of the royal family may choose to make in their will, there is no true public interest in the public knowing this wholly private information…the media interest in this respect is commercial.”
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