Brown v The Executors of the Estate of HM Queen Elizabeth Mother & Ors

Mr Hinks, supported by Mr Lofthouse, seeks the reconsideration of the direction or invitation given on the previous occasion when we sat, to put before the court the documents that were before the former President when she made the two sealing up orders and any reasons given for her decisions. Mr Hinks’s objection is very simple. He says that there was only one issue before the President, that is whether the plaintiff had locus. The President decided that issue in his favour, and, accordingly, the challenge in the Court of Appeal can only be to that one issue.

The information before the court today is very much fuller than it was when we sat previously, and of course we have the advantage of submissions from all parties. In my judgment, Mr Hinks has made good his submission that the only issue before the President truly was the issue of locus. He has shown us the summons to strike out and the affidavit in support and we can see from the transcript that that is clearly the basis upon which he argued his case.

It seems to me that some confusion has resulted from the reserved judgment of the President. It is by no means confined to that one single and simple issue. We can see that in paragraph 21 of his judgment he records Mr Robertson as advancing two submissions: first, the plaintiff’s asserted right as a member of the public to inspect, under sections 124 and 125 of the 1981 Act; second, that the former President may have been misled when making her decision to seal the wills if she acted merely on the basis of some so-called practice.

The second submission concluded with the assertion that there was no such conventional practice and certainly no proper basis for it. By contrast, Mr Hinks’s submissions, recorded in the previous paragraph, are limited to the one issue of locus. In the following paragraphs the President was certainly not only recognising Mr Robertson’s second submission, but considering to some extent the basis upon which the former President had ordered as she did and assuming in the absence of evidence to the contrary that all which she had done was rightly done. Now, strictly, it seems to me, the President went beyond his essential task in recording Mr Robertson’s second submission and in dealing with it relatively extensively.

Accordingly, it seems to me that Mr Hinks is right in his submission this morning that the cardinal and probably only issue for the Court of Appeal on 21 January is whether the President was right to conclude the complainant had no locus. On that basis, the enlargement of the available evidence and the introduction of evidence as to what was before the former President becomes otiose. Accordingly, I would favour setting aside anything in our previous order relating to the material before the President and make plain that when the full court sits on 21 January, the court, having but a day for the case in any event, will be addressing the legal issue of whether or not the plaintiff can show standing.

I agree.