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

In these proceedings, commenced by a summons dated 3 May 2006, the Plaintiff, Robert Andrew Brown, seeks a direction for the unsealing of the wills of the late Queen Elizabeth, the Queen Mother and the late Princess Margaret, Countess of Snowdon ("the wills"), of which the first and second defendants are the executors. He seeks the opening of the wills to public inspection, or at any rate leave for himself to inspect the wills as part of his investigation to establish his claim to be the illegitimate child of Princess Margaret. The wills are under the control of the High Court in the Principal Registry, having been sealed up pursuant to orders made by the former President of the Family Division on 10 April 2002 and 19 June 2002 respectively on applications made by the executors, to which the Attorney General was made party. The orders are in similar terms. Each provides that the executors have permission to seal up the will; that no copy of the will should be made for the record or kept on the court file; and that the will should not be opened without the consent of the President of the Family Division for the time being.

The Plaintiff's summons is dated 3 May 2006, but it was not issued until 28 September 2006 pursuant to the Non-Contentious Probate Rules 1987 ("the NCPR") Rule 61 the Rules of the Supreme Court 1965 ("the RSC"), Order 32. The RSC continue to apply to such matters pursuant to rule 3 of the NCPR. Thus, the Plaintiff's application is made by summons (rather than application notice) pursuant to the RSC. The summons is apparently of the Plaintiff's own drafting. It sets out the grounds of his claim under three main heads (1) Public interest; (2) Personal interest; (3) Rights of illegitimates in the succession.

Under (1) he refers to s.124 of the Supreme Court Act 1981 and Rule 58 of the Non-Contentious Probate Rules 1987 (see below) and asserts that it is in the public interest that the wills should, like any other, be accessible to public inspection, considerations of privacy being insufficient reason for exemption when measured against the public interest. Under (2) he asserts his personal interest in the form of a claim that he is the illegitimate child of Princess Margaret and that he has an interest in unsealing and inspecting the wills in order to advance and/or establish that claim. Under (3) he asserts, erroneously, that any first born illegitimate child of Princess Margaret would rank twelfth in the order of succession, notwithstanding illegitimacy and that, if it be that the wills were sealed up for the protection of such an illegitimate child, then the unsealing of the wills is likewise a matter of public interest.

In a form of affidavit dated May 2006, sworn in support of his application, the Plaintiff sets out the background and details of his claim to be the illegitimate son of Princess Margaret, which claim he states to be 'the result of quiet consideration, much "soul searching", extensive and ongoing research, weighing up probabilities, circumstantial evidence, and of memories.' The executors assert that, upon examination of the so-called 'evidence' upon which the Plaintiff relies, it is clear that the claim has no substance whatever and that the personal interest which the Plaintiff asserts is consequently illusory, having no foundation either in fact or rational argument. Upon that basis the executors apply on summons of their own to have the Plaintiff's claim struck out in limine pursuant to RSC Order 18 rule 19, alternatively under the inherent jurisdiction of the court.

At the commencement of the proceedings the Plaintiff was acting in person. However he has recently acquired legal representation and has been represented before me by Mr Robertson QC and Mr Hudson. The executors have been represented by Mr Hinks QC and Mr Adkin, and the Attorney General by Mr Lofthouse.

Section 124 of the Supreme Court Act 1981 as amended provides as follows:

"All original wills and other documents which are under the control of the High Court in the Principal Registry or in any District Probate Registry shall be deposited and preserved in such places as may be provided for and directions given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005; and any wills or other documents so deposited shall, subject to the control of the High Court and to probate rules, be open to inspection" (emphasis added)

Section 125 provides as follows:

"an office copy, or a sealed and certified copy, of any will or part of a will open to inspection under 124 or of any grant may, on payment of the fee prescribed by an order section 92 of The Courts Act 2003, be obtained –

(a)

from the registry in which in accordance with section 124 the will or documents relating to the grant are preserved; or

(b)

where in accordance with that section the will or such documents are preserved in some place other than a registry, from the Principal Registry; or

(c)

subject to the approval of the Senior Registrar [Senior District Judge] of the Family Division, from the Principal Registry in any case where the will was proved in or the grant was issued from a district probate registry."

Section 127 makes provision for rules of court to be made in relation to probate, which are currently to be found in the NCPR.

Rule 58 of the NCPR provides for a discretion in the Court to refuse to open a will to inspection, as follows:

"an original will or other document referred to in section 124 of the Act shall not be open to inspection if, in the opinion of a [District Judge or Registrar], such inspection would be undesirable or otherwise inappropriate."

The will of the Sovereign is not subject to probate: see re: King George III (1822) 1 Add 255; re: King George III (1862) 3 Sw. & Tr.199; and generally Williams, Mortimer & Sunnucks (18^th Ed) Executors, Administrators and Probate at Para 9 – 05. That is not so in respect of other members of the Royal Family. However, as stated in Tristram & Coote's Probate Practice (30^th Ed) 2006 para 4.247-4.249:

"Will of member of the Royal Family

4.247.

On the death of a member of the Royal Family, it is usual for application to be made to the President of the Family Division for an order that the will be sealed up. Application for such an order is made by summons, which is served on the Treasury Solicitor. The will and HMRC account are examined by an official of the Capital Taxes Office before the papers to lead the grant are lodged.

4.248.

No copy of the will is annexed to the grant of probate: the grant bears annotation 'Probate granted without annexing a copy of the will by order of the President dated ...' The usual records of the grant are kept.

4.249.

After the will has been sealed up it can be opened only by direction of the President"

See to similar effect: Williams, Mortimer & Sunnucks: at para 9 – 05

That is the procedure which appears to have been followed in the case of the Queen Mother and Princess Margaret, the Attorney General having been joined as defendant in the proceedings.

The court has two overlapping jurisdictions to strike out an action or other proceeding such as that brought by the plaintiff. It has an inherent jurisdiction to strike out all proceedings before it which are obviously frivolous or vexatious or an abuse of its process; see Reichal v Magrath (1889) 14 App. Cas. 665 and the authorities cited in The Supreme Court Practice 1999 at paragraphs 18/19/26-27. It also has jurisdiction under Order RSC 18, rule 19 which provides as follows

"19(1) The court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action or anything in any pleading or in the indorsement, on the ground that –

(a)

it discloses no reasonable cause of action or defence, as the case may be; or

(b)

it is scandalous, frivolous or vexatious; or

(c)

…

(d)

it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or

or judgment to be entered accordingly as the case may

be.

(2)

…

(3)

This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading."

Following the formal issue of the Plaintiff's summons on 28 September 2006, accompanied by a lengthy but undated affidavit in support, the matter was listed for directions before the Senior District Judge on 24 October 2006. He directed that the Plaintiff serve on the Defendants by 21 November 2006 any additional evidence on which he intended to rely in support of his application and that the Defendants serve on the Plaintiff by 19 December 2006 any evidence on which they intended to rely in response to the application. The Senior District Judge ordered that the summons be listed for further consideration and directions at a hearing in private before the President of the Family Division on a date to be fixed. At that time the Plaintiff was unrepresented.

On 5 December 2006, David Price, Solicitors and Advocates ("David Price"), now instructed on behalf of the Plaintiff, wrote to Farrer & Co who represent the executors, requesting copies of the orders made for the sealing of the wills and of the applications pursuant to which such orders were made. They also requested an extension of the dates for the service of further evidence provided for in the order of Senior District Judge Waller.

By their reply of 7 December 2006, Farrer & Co made clear the executors' position, as it had been advanced to the Senior District Judge, as follows:

"As regards to the sealing of the Royal Wills in question, the public interest was represented by the Attorney-General. In order for Mr Brown to apply to unseal those wills, he must therefore establish some form of private interest in having the wills unsealed.

Your client has been provided with an opportunity to establish such a private interest in the evidence he has been ordered to produce. Unless and until evidence of such an interest is produced (and none has so far been produced by your client) it is our view that Mr Brown does not have standing to pursue the application, and hence is not entitled to the disclosure of the documents and information that he seeks.

The appropriate course, therefore, is for your client to produce his evidence first, at which point our clients will consider his request for the information and documents sought."

In the face of such refusal, on 18 December 2006, David Price wrote to the Principal Registry of the Family Division requesting copies of the orders and applications, having on the same day informed Farrer & Co and the Treasury Solicitor on behalf of the Attorney General of their intention to do so. However, by letter of 19 December 2006, Mr Turek for the Treasury Solicitor wrote to the Principal Registry indicating that he had informed David Price that copies of the orders were not in his possession and that he was not prepared to produce the applications. He stated that it was the position of the Attorney General that the application was not one in which disclosure was appropriate and he requested the court not to release any of the material for which the solicitors asked unless ordered by the court on application at the directions hearing before the President.

Shortly thereafter, in January 2007, the executors issued a summons to strike out the Plaintiff's claim pursuant to RSC Order 18 Rule 19(1) (a) and (b) and /or the inherent jurisdiction of the court, to be heard on 27 March 2007.

David Price thereafter wrote seeking the executors' agreement that, should the strike out application fail, the matter should then proceed as a directions hearing and, on 12 March 2007 they wrote specifying that the directions sought would be (1) that the Plaintiff be provided with copies of the sealing orders and the application notices (including supporting documents) to seal the wills; (2) the filing and serving of any additional evidence on which the Plaintiff relied by 24 April 2007 and (3) the filing of any evidence from the Defendants in response by 8 May 2007. They also made clear that the Plaintiff would apply for the matter to be heard in open court.

Farrer & Co for the executors replied indicating their willingness to provide copies of the orders for the sealing of the wills, which were subsequently supplied, but that they opposed disclosure of the application notices including any supporting documents. They stated that the Plaintiff had had full opportunity, but had failed, to serve any additional evidence in accordance with the earlier order of the Senior District Judge and that they saw no reason for the matter to be heard in open court. The Attorney General's position was that he opposed provision of the copy documents sought but that, if the matter proceeded, he would not oppose the application for the filing of further evidence. He would also oppose the application for a public hearing.

In the event, the parties subsequently agreed that the matter was suitable for hearing in open court. Having agreed (see correspondence of 8 and 9 February 2007) that they would proceed before me, on the basis that the strike out application should be heard as a preliminary and self-contained matter prior to consideration of the directions sought, the parties maintained that position before me, despite my expression of concern at the outset that I did not have available to me any note or record of the judgment or reasons of the former President when making the orders for sealing of the wills, and despite my suggestion that, for that purpose, I should have sight of the affidavit evidence upon the basis of which the former President's orders were made. Neither the executors nor the Attorney General were willing to disclose the evidence to the Plaintiff in the absence of an order of the court. Nor was any of the parties disposed to adopt my suggestion that I should myself look at the affidavits presented to the former President in support of the sealing application (now with Farrer & Co) on a preliminary and restricted basis in order to inform myself of the reasons advanced for the original application, whilst preserving the position of the executors vis-à-vis the Plaintiff that this application is an abuse of the court process.

The executors' submissions are in short form as follows: (1) In so far as the Plaintiff as a private party purports to assert a right or interest of the public at large to inspect the wills, such right or interest may only be represented and pursued by the Attorney-General (see Gouriet v Union of Post Office Workers [1978] AC 435) who was indeed present as a party when the sealing orders were made and who does not support the application of the Plaintiff. (2) In so far as the plaintiff alleges his personal (i.e. private) interest in the unsealing of the will, for the purpose of establishing his claim that he is or may be the illegitimate child of Princess Margaret, the matters on which he relies utterly fail to support that claim and his assertion of a right or interest over or above that of any ordinary member of the public is thus doomed to failure. Thus his claim should be struck out as scandalous and vexatious in the ordinary sense of those old-fashioned words and it would be an abuse of the process of the court to allow it to continue.

The Plaintiff's submissions, as set out in writing and elaborated before me by Mr Robertson QC, have concentrated less upon the factual basis of the Applicant's claim to be the son of Princess Margaret (indeed apart from emphasising that the claim is made in good faith, Mr Robertson has not sought to justify it or to suggest that the Plaintiff has put forward any evidence worthy of the name to support it) than upon the Plaintiff's asserted right as a member of the public to exercise his right of inspection provided for in ss124 and 125 of the 1981 Act. He also submits that the former President of the Family Division may have been misled when making her decision to seal the wills if, as he asserts is likely, she did so merely on the basis of a so-called convention or practice to the effect that such orders are routinely made in respect of wills of members of the Royal Family. Mr Robertson asserts the absence of any such convention or practice, or at any rate any proper basis for it.

In his affidavit of some 26 pages the Plaintiff states at the outset (at paras 1.1 and 1.2) that the purpose of his application is to identify whether the Royal wills make any provision for or concerning an illegitimate child, he having an interest in the matter because he claims that he is the illegitimate child of Princess Margaret.

As part of the matters relied on in support of that claim, he produces a Kenyan birth certificate signed by Cynthia Joan Brown (nee Lyall) in which she names herself as his mother and states that he was born in Nairobi in Kenya on 5 January 1955, his father being Douglas Richard Brown, a builder by occupation. The relevant Kenyan Ordinance (No 2 of 1928 dated 9 June 1928), exhibited to the affidavit of the executors' solicitor, Mr Bridges, states its purpose as being "to Provide for the Notification and Registration of Births and Deaths and Other Matters Incidental Thereto". It makes clear that the registration of the birth of a child in Kenya was compulsory (section 8(1)) and that the provision of false information or particulars was a criminal offence (section 20).

In law a birth certificate is prima facie evidence of all matters required by statute to be entered in the certificate: see re: Stollery [1926] Ch. 284 at 310 and Jackson v Jackson & Pavan [1964] P. 25 at 30. The birth certificate is thus prima facie evidence that the Plaintiff's mother was Cynthia Brown. Furthermore, it is clear from the rest of his affidavit, that the Plaintiff accepts that Cynthia Brown, now deceased, recognised and brought him up as her own child. Curiously, he makes no reference to Douglas Richard Brown, named as his father in the birth certificate save, in passing, as follows. He states that he does not accept for the purposes of his application that his birth certificate is an accurate record on the grounds that such date is inconsistent with an entry in the 'Births' section of the Times of 7 January 1955 which gave his birthday as the 6 (not the 5) of January which, he adds, is also that recorded in the hand of "D R Brown" in his tax return for the year 1955. Nonetheless, in exhibited correspondence with the Treasury Solicitor, he refers to Douglas Brown as 'the name of the gentleman that 'raised' me'; and in a letter addressed to Buckingham Palace in 2002 (see para 33 below) he makes reference to aspects of his upbringing by Douglas Brown. Thus it does appear that the Plaintiff was brought up by Cynthia and Douglas Brown (both now deceased) as their own child.

At paragraph 42 of his affidavit the Plaintiff states:

"I have not been told that I am the illegitimate child of Princess Margaret, or even that I was adopted. It is a conclusion I have arrived at be [sic] deduction."

At paragraph 2, he explains that process of deduction as follows:

"[M]y conclusion that I am the illegitimate child of Princess Margaret is based upon a jigsaw of personal recollections, events, circumstantial evidence, conversations, reactions and extensive research."

None of the matters subsequently set out at length remotely constitutes evidence supportive of the Plaintiff's claim.

At paragraph 2.3 the Plaintiff asserts in respect of Princess Margaret that "there could have been a hidden pregnancy." In support, he states that Princess Margaret was reported as ill with a "rattling cough" during the "early days of 1955" and that "photographs suggest a growing waistline compared with the elfin waist of 1954". He also refers to the record of a Privy Council meeting held on 5 January 1955, ostensibly to discuss measures to be adopted in the face of a threatened rail strike, and states that "Examination of the reports and subsequent events of the rail strike left me unconvinced that the reason for the Council meeting was the strike."

At paragraphs 4.1 to 4.4 of his affidavit he relies on his 'Personal Outlook' or 'Instinct' as being 'the key element and driver' of his claim, citing a sense of not belonging to the family environment in which he was brought up and refers to instances of members of his family in England having appeared reticent in responding to his enquiries about his origins. At paragraph 4.5 he describes the relationship of his 'mother' with his siblings as having been closer than with himself; he states that connections between his mother 'direct or indirect and the Royal Family movers and shakers of the day cannot be discounted,' citing the fact that Cynthia Brown was a model for Hardy Amies who at the time was Princess Margaret's clothes designer. He also suggests that his mother's refusal to discuss her war activities, despite being teased about it by relatives 'might suggest that Cynthia had served in the war in operations relating to SOE Activities… requiring the utmost discretion, and possibly "deception".'

In paragraphs 5.1 to 5.4 of his affidavit, the plaintiff refers to his recollections and meetings from early childhood in Kenya with a woman 'whom I now believe may have been Princess Margaret' and who once said to him 'you could be King one day'. He gives no description of the woman, nor any or reason for saying why he thinks the woman may have been Princess Margaret. He asserts 'I have spent much of my life wanting to re-find that moment, an explanation and emotional connection.'

He places considerable reliance upon two photographs exhibited to his affidavit, the larger of which is dated on the reverse 'October 1956', the month of a visit to Kenya by Princess Margaret. In the photograph there is an infant looking out through the closed front window of a car. There is, reflected in the rear car window the figure of a woman outside the car (apparently the photographer) visible in outline only, who the Plaintiff asserts has a 'royal type chignon' and a dress, the shoulder shape of which appears similar to that of a dress worn by Princess Margaret at the Governor's Ball. No additional reason is given for supposing the photographer was Princess Margaret.

The Plaintiff also cites being taken by Cynthia Brown to witness the visit of the Queen Mother to Kenya in February 1959 in a mood which 'suggested duty rather than pleasure'; a visit as a child to what appeared to have been the Queen's Gallery at Buckingham Palace; and two separate occasions as an adult, one at the Royal Geographical Society and one in Val d'Isère, when he got into conversations with a woman or women. The first is said to have looked 'like the Queen but shorter and younger' and the second 'looked very much like Princess Margaret'. He states that, on each occasion, he felt too polite to ask.

At paragraphs 6 and 7 of his affidavit, the Plaintiff recites a number of general recollections, so-called coincidences and incidents in his life which he suggests are corroborative of his claim in that they 'form the patchwork that gave me the confidence to face this issue' and which 'may serve the Court in understanding that whatever the outcome of this application, my beliefs that I may be the illegitimate child of Princess Margaret are founded, even if in any final analysis wrong or unproven' (see paragraph 8 of his affidavit.) None of the incidents is helpful in that respect.

At paragraph 9, the Plaintiff refers under the heading 'Failure to respond- evidence and justification' to the fact that no response has been received to a series of inquiries and assertions which he has directed to Her Majesty the Queen and to Farrer & Co prior to proceedings, starting with a letter to the Queen dated 18 September 2002; also to various subsequent refusals to engage in correspondence on the part of the Lord Chancellor, the Prime Minister, the Privy Council and other Government Departments; and to the fact that a full page article in the Daily Mail setting out his claim (see paragraph 39 below) produced no rebuttals from private parties or informed sources.

Finally, at paragraph 10 he speaks of his 'need for resolution', asserting that 'identity is a fundamental human need and I suggest right'.

There are exhibited to the Plaintiff's affidavit, four bundles of documents. Exhibits 1, 2 and 3 are each entitled 'R A Brown – identity and succession – correspondence', and relate respectively to correspondence with the Department for Constitutional Affairs and No. 10 Downing Street (240 pages), Buckingham Palace (179 pages) and Farrer's (79 pages). Exhibit 4 (35 pages) consists of a comparatively few documents, including the birth certificate and photographs to which I have referred, to support the substance of the Plaintiff's claim to be the illegitimate son of Princess Margaret as I have outlined it.

The evidence filed by the executors in response to the Plaintiff's affidavit and in support of their application to strike out is principally directed to the only factual assertion of any substance or significance made by the Plaintiff, namely that, in the period leading up to the Plaintiff's birth in Kenya in January 1955, Princess Margaret was showing signs of pregnancy by means of a "growing waistline" as compared with her appearance in 1954. There is exhibited to the affidavit of Mr Bridges of Farrers, a number of press photographs taken on public appearances of Princess Margaret during the period concerned. They show no noticeable change in Princess Margaret's figure or style of dress, nor any signs of pregnancy whatever. There are also reports of the activities of Princess Margaret at Sandringham over the Christmas period and a photograph of her returning to London from Sandringham on 7 January 1955 (i.e. two days after the Plaintiff's date of birth) prior to her departure for the West Indies at the end of January.

On the basis of those photographs, and the nature and quality of the other 'evidence' put forward by the Plaintiff in support of his claim, Mr Hinks on behalf of the executors described the Plaintiff as 'deluded'. Mr Robertson took exception to the use of that word in respect of his client. He described his client as a respectable accountant in relation to whom the use of such words was offensive. Suffice it to say that I find that the matters on which the Plaintiff relies are devoid of any substance or significance by way of potential proof or corroboration of his claim. Furthermore, he does not assert that any person or source, informed or otherwise, has ever told, or even suggested, to him that he is the illegitimate son of Princess Margaret. Indeed, he acknowledges they have not. Rather, it seems from his own evidence that the origins of his assertion lie in thoughts, emotions and fantasies which have afflicted him comparatively recently in later life.

This is clear from two documents, both exhibited by the Plaintiff in support of his application. The first is the letter written by the Plaintiff to the Queen originally notifying her (and Farrer & Co) of his claim and requesting her assistance. Early in what is a lengthy letter he states:

"This is the most difficult letter I have ever written. I have almost sat down to write it on a number of occasions, and have composed it endlessly in my head. I frequently question my motives and my 'sanity', complexes of grandeur, self-delusion etc. My conclusion is that if this letter proves to be misplaced, it would make a fascinating story, but [is] sometimes stranger than fiction. I have had to work 'in the dark' as enquires cannot be made of those who might know without setting a rumour mill in motion. I have tried to be discreet for the sake of your Majesty's family, and myself. There is no question well directed or not, this issue, if allowed to take flight would provide a comprehensive pile of fodder to feed the media pages.

…I have been aware that there was a possibility of not being who I thought I was for about ten years, hints of wrong side of the sheets and wider hints of blue blood as a result of a comment by a relative. I put this together with childhood memories, of comments and actions by Cynthia, events I remembered, significant or out of context with life, such as: (a small sample selection of many)

A vivid recollection of being told by Cynthia (mother?) that I could be a king one day; as a bright little chap of four or five I informed Cynthia that was a silly suggestion, I knew what a King was I could clearly not be one (sic)".

The letter then set out a string of recollections and reminiscences similar to or consistent with those set out in the Plaintiff's affidavit.

The second document is an article, published in the Daily Mail following an interview with the Plaintiff, and which he exhibits in support of his application. The relevant passage reads as follows:

"Robert's bizarre quest to uncover the truth about his background began a few years ago at the wedding of a cousin in Wales.

'For a long time I felt that I did not quite belong,' he says. 'My parents had always been quite distant, and seemed much fonder of my younger brother. It wasn't until this wedding that I began to guess at the reason why.'

The wedding was a grand affair, with guests including a large number of titled people – Lords and Ladies, Earls and Countesses. Looking at the seating plan, Robert noticed that he was more or less the only Esquire.

'When I mentioned this to my uncle he gave an embarrassed half-laugh and said: "wrong side of the sheets." '

As the evening wore on, mulling this strange comment over, Robert began to think the unthinkable: could the couple who he had regarded all his life as his natural parents actually have brought him up on behalf of someone else?

Brown believes that only if he is of royal descent can he account for some curious, and otherwise inexplicable events that gnaw at him. Chief amongst these are his very first memory."

The article then proceeds to recount incidents spoken to by the Plaintiff, to most of which I have referred above, and none of which is probative or corroborative of his belief in any way.

That being so, whilst I accept that the Plaintiff's claim is made in good faith in the sense and to the extent that he has a genuine belief that he is or may be the offspring of Princess Margaret, I am equally satisfied that there is no rational basis whatever for such belief, as his own evidence clearly demonstrates.

The right provided for in s.124 of The Supreme Court Act is not, as Mr Robertson at one stage submitted, a general and unfettered right of inspection in respect of all wills deposited in the Registry. The wording of s.124 anticipates control by the High Court of the right to inspect, subject to and in accordance with probate rules, currently contained in the NCPR, which by Rule 58 plainly permit curtailment of what would otherwise be a right available to members of the public generally if, in the opinion of a District Judge or a Registrar (or in this case the President) public inspection of a particular will would be undesirable or otherwise inappropriate. It has been no part of Mr Robertson's argument that Rule 58 is ultra vires s.124. The NCPR provides no guidance upon the question of what facts or circumstances may be apt to justify a decision to close or seal a will from public inspection, but it is to be presumed that the power to do so is concerned with considerations of privacy and the perceived necessity in particular cases to protect from harm, harassment, intrusion or publicity those who are beneficiaries, potential beneficiaries, or otherwise interested under the will or who, for other reasons, may be adversely affected if the provisions of the will are open to public inspection. Equally, it is to be presumed that, in relation to such a decision, those considerations of privacy fall to be weighed against the manifest general statutory presumption in favour of openness in respect of all wills subject to probate.

At this point it is pertinent to note that the former President's decisions, while made on the application of the executors of the estate of an individual, were in the nature of public law decisions affecting the public at large. The statutory scheme, comprised in s.124 and the relevant rules of the NCPR, is concerned with the right(s) of members of the public at large to inspect any will deposited with and under the control of the High Court, subject only to the power of the court to close an individual will to such inspection as provided for in Rule 58. In applying for a will to be closed to public inspection, the executors of the will concerned engage the public interest in respect of openness and, if a decision to seal the will is taken, that decision stands as a ruling binding upon the public at large. For that reason, in any case where there is reason to suppose wider interest on the part of the public, (of which the will of a member of the Royal Family is plainly a good example), it is appropriate for the Attorney General to be served with notice of the application in order to ensure that the public interest is represented and protected, at what would otherwise be an ex parte hearing with no such representation.

In this case, by reason of the approach taken by the parties (see paragraph 19 above), I lack knowledge of the matters placed before the former President upon the basis of which the sealing applications were made and decided; but, given the presence of the executors on one side putting the case for privacy and the Attorney-General on the other as representative of the public interest, I have no reason to doubt that, in coming to her decision, the former President would have had placed before her and would have taken into account the considerations which I have mentioned at paragraph 41 above. However Mr Robertson submits otherwise.

In this respect he relies upon the content of a letter dated 8 May 2006 from the Legal Secretariat of the Law Offices responding to a request by the plaintiff under the Freedom of Information Act 2000 in which it was accepted that there is a legitimate public interest in wills of members of the Royal family being open to public inspection but went on to assert that "the High Court has determined… [that there is]… a 'public interest' in protecting members of the Royal family, given their unique status in society, from press and public intrusion into these very personal matters". Mr Robertson submits that it is difficult to see why members of the Royal Family should be accorded such protection, when it is not vouchsafed to any other family so far as his researches show. He submits that neither s.124 nor Rule 58 make an exception for royalty and that the fact that the Royal Family may have a unique status in society does not itself provide a rational reason why public inspection would be undesirable or inappropriate. Indeed, he submits that the status of the Royal Family makes the public interest in inspection greater rather than less in this respect.

Mr Robertson refers in particular to the following considerations. First, he relies on what he terms the interest of history and historians in the terms of such wills; second, the interest of the media and its 'watchdog' role in reporting on the working of the tax arrangements for members of the Royal family; third what he calls a 'transparency interest' in seeing that nothing is being done improperly or unlawfully, that appropriate procedures have been followed, and that there is nothing in the bequests or signatures of those witnessing the will from which an inference could be drawn of undue influence or foul play.

Fourth, he submits that there is a public interest in checking the probate figures in those cases where there is an order that no figures should appear on the grant or where no copy of the grant is annexed, in order to ensure that those who are given charge of national assets should not mix them up with their disposable personal property. Fifth, he submits that there is a public interest in checking whether the will indicates an existence of a hitherto unrecognised offspring who may have some hereditary claim to royal privileges or entitlements. Sixth, he submits that it is anomalous that a sealing order should be made in respect of the wills of members of the Royal Family when no such provision is made in respect of the will of the Sovereign herself.

Finally, Mr Robertson refers to what was apparently the first occasion of an order being made for the sealing of the will of a member of the Royal Family early in the twentieth century (and the origin of the practice described in Tristram & Coote: see paragraph 9 above), when it appears that the President of the Probate, Divorce and Admiralty Division made an order sealing the will of Prince Francis of Teck in order to protect the Crown from fear of scandal during Queen Mary's coronation year. Mr Robertson submits that it appears that such precedent was followed by the President in making the sealing orders in this case, as Mr Robertson puts it, 'on application by the Attorney-General and the royal executors, ex parte and without any analysis or opposition.'

In making his last points, while it may or may not be, and I do not know, that the case of Prince Francis of Teck was brought to the attention of the President on the applications made before her, Mr Robertson is in error when he asserts that those applications were made by the Attorney-General and the executors. It is plain from the order in each case that the application was one made by the executors who joined the Attorney-General as defendant in the application to represent the public interest. Nor has Mr Robertson provided any basis for his assertion that the application was made "without analysis or opposition". I am certainly not prepared to proceed on this application on the basis that neither the Attorney-General nor the court analysed the position in the terms of the overall public interest or that the President failed to have regard to the balancing exercise required to be performed as between the statutory presumption of openness and the privacy interests of the beneficiaries under the wills.

There is even less force in Mr Robertson's sixth point. The will of the Sovereign is not subject to probate procedures and is not required to be published: see paragraph 9 above.

Reverting to Mr Robertson's earlier points, he is of course correct that neither s.124 nor Rule 58 make an exception for royalty. But there is no good reason to suppose that the President thought that they did, or that she considered that the 'unique status' of the royal family was a reason in itself to accord protection to its members. There would have been no reason, however, why that so-called status should not have carried considerable weight in assessing the particular need for protection from speculation, gossip and general intrusion into the privacy of those named under (or indeed omitted from) the provisions of the wills. There is of course a difference between 'the public interest' properly so called and the interest of the public in the sense simply of its seemingly insatiable curiosity about the private lives, friendships, and affections of members of the royal family and their circle, as distinct from matters of genuine concern to historians or investigative journalists.

As to the matters enumerated by Mr Robertson, various of them are matters to which it would have been appropriate for the Attorney General to have regard when forming his view as to the public interest and making his submissions to the President. I am not prepared to assume that they were omitted rather than considered. I would however add that, in respect of what Mr Robertson calls 'the transparency interest' in seeing that nothing is being done improperly or unlawfully or that there are grounds for suspecting undue influence or foul play, these are scarcely matters which are likely to appear from inspection of the will itself. They are matters which, as in the case of any other will, fall within the responsibilities of the executors and in respect of which remedies are available to aggrieved parties under ordinary probate procedures.

All that being so, I am not prepared to accede to the submission of Mr Robertson that I should proceed on the basis of an assumption that the President was misled or misunderstood the considerations relevant to her decisions. I propose to treat her decisions as decisions regularly arrived at, having taken into account the public interest in open inspection at the time they were made. Nor do I proceed upon the basis that between 2002, when the sealing orders were made, and today, contemporary conditions or public interest considerations have materially altered so far as the public at large are concerned. Indeed Mr Robertson does not so suggest.

However, that is not in itself sufficient to shut out the application of the Plaintiff. Whilst the former President ruled that the will should be sealed from inspection so far as the public at large were concerned, she added the proviso that the will should not be opened 'without the consent of the President of the Family Division' for the time being. I conclude from the terms of her order that she envisaged, and intended to provide for, the possibility of future application by any individual member of the public or an institution with grounds to assert a claim or interest under the will, or otherwise able to demonstrate substantial prejudice suffered by reason of the sealing orders, such as to render it 'desirable or appropriate' that inspection should be permitted on application made to the President. I am clear that she was right to make such a proviso. Once an order has been made under Rule 58, there is no provision in the NCPR, nor so far as I am aware is there any guidance to be found in the RSC (or CPR), affording a specific remedy to a member of the public whose private rights or interests are adversely affected by the making of such an order, but who has had no opportunity to bring such rights or interests to the attention of the court at the time of its order so as to enable the court to make special provision or reservation in that respect if it appears appropriate to do so. Nor is the remedy of appeal or judicial review available in respect of such an order.

Accordingly, as it seems to me, in exercising the jurisdiction to make an order that a will should not be open to inspection, it is appropriate for the court to include a proviso to the effect that it can be opened by subsequent direction of the court and that, in a case of high interest, the direction should be that of the President. So to provide gives appropriate protection and opportunity to anyone who is aggrieved, in the sense of being adversely affected or prejudiced by the making of a sealing order. However, the burden is upon the applicant to demonstrate that such is, or may be, the case. It is therefore necessary that the application for a direction should be supported by affidavit evidence setting out the grounds upon which it is made, as ordered by the Senior District Judge in this case.

I have already summarised the basis of the executors' application. So far as the Plaintiff seeks to assert a private interest as opposed to a public right in unsealing the royal wills for his inspection, it is submitted that he has produced no evidence to suggest any such interest, nor is there any reason to suppose that such evidence would be forthcoming. His interest, or prospective interest, therefore lacks any foundation in reality. It is indeed apparent from his own affidavit that it is illusory. Thus to proceed further with the application on the basis that it is or may be established would be a waste of time and expense with which the executors and the court should not be troubled and would amount to an abuse of process.

I have also made clear that, in resisting the application, Mr Robertson has not sought to sustain or support the claim of the Plaintiff to be the child of Princess Margaret or to argue that the matters relied on by him do anything to substantiate or corroborate such a claim. He has simply asserted that the plaintiff's claim is made in good faith, as I would accept in the sense stated in paragraph 40 above. Nonetheless, that does not seem to me to be sufficient to establish an interest or prospective interest of the kind sufficient to justify the Plaintiff's application. In relation to a strikeout application, in a case where it is apparent that the plaintiff has no claim or interest, or prospective claim or interest, of the kind necessary to support an action, it is no answer to the application simply to say that the claimant believes he has a claim. If the claim is demonstrably one based upon fantasy rather than fact, then it is appropriate to be struck out under RSC Order 18 Rule 19 or the inherent jurisdiction of the court.

It is in the light of that reality that Mr Robertson asserts at paragraph of his written submissions that 'the plaintiff does not need to rely on his motive, i.e. his belief (which is obviously genuine) that he may be the son of HRH Princess Margaret, because he asserts his right as a member of the public to inspect the wills pursuant to Section 124. His motive may only be relevant to rebut any suggestion that his inspection would be undesirable or inappropriate. This can hardly be made since he is lawfully pursuing Article 8 and 10 Rights'.

In so far as the Plaintiff relies upon arguments which assert the general public interest, the executors submit that he has no standing to do so, it being well established that in civil proceedings the public interest may only be represented by the Attorney-General who declines to support the Plaintiff in his application; see Gouriet (above) at [1978] AC 477E-F and 480G-H per Lord Wilberforce, at 500E per Lord Diplock and at 508G-509D per Lord Edmund Davis. See also per Lord Fraser at 518E-F:

"The general rule is that a private person is only entitled to sue in respect of interference with a public right if either there is also interference with a private right of his or the interference with the public right would inflict special damage on him …"

Mr Robertson points out that, in relation to proceedings for the enforcement of the general law by way of judicial review, the House of Lords has, since Gouriet 'rowed back' to some degree upon the width of the principle there stated, so that, in exceptional cases where the Attorney-General is disinclined to act, leave to move for an order of mandamus may be granted on the basis that the applicant has sufficient standing (in the sense that he arguably has sufficient interest) for leave to be granted, in order that the court may determine whether sufficient interest has in fact been established once the 'merits' of the complaint made have been examined at a substantive hearing: see I.R.C v National Federation of Self-Employed and Small Business Ltd [1982] AC 617. Mr Robertson submits that the court should adopt an analogous approach in this case, so that the merits of maintaining the embargo on inspection imposed by the President's sealing orders may be critically examined.

I do not consider the procedural analogy of the threshold for judicial review assists Mr Robertson on this application. If the procedure of judicial review were available in respect of the sealing orders, any application for review would be subject to s.31(3) of the Supreme Court Act 1981 which provides that 'the court shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the application relates'. Although the burden of surmounting that threshold may be light in respect of alleged serious cases of breach of public duty by organs of Government, the position remains, as stated by Lord Scarman in the National Federation case at 653G-H:

"If [the applicant] fails to show, when he applies for leave, prima facie case, or reasonable grounds for believing that there has been a failure of public duty, the court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks and other mischief-makers." (emphasis added)

See also per Lord Wilberforce at 630 C-D.

The matter was succinctly summarised by Sir John Donaldson MR in R v Monopolies & Mergers Commission, Ex p. Argyll Group Plc [1986] 1WLR at 773H:

"The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re-applied as a matter of discretion on the hearing of the substantive application".

In my view, the Plaintiff in this case fails the first stage test. He has in truth and reality no interest which has been adversely affected by the former President's orders. His application is based on an asserted interest which lacks any basis or foundation save in his own mind. He is not himself an historian or investigative journalist, nor does he himself proffer any reason to suppose that the terms of the will are likely to refer to any illegitimate offspring, let alone the Plaintiff. Further, on the evidence which he himself places before the court, there is no reason to suppose that he is other than the legitimate son of Douglas and Cynthia Brown as stated on his birth certificate, or that sight of the wills will in any way assist or bear upon that question.

I have already indicated that, given the nature and the effect of the former President's orders to seal up the wills, Mr Robertson's submission that, regardless of the Plaintiff's motives or interests, he has the unqualified right as a member of the public to inspect the wills pursuant to s.124 is erroneous. By reason of the former President's sealing orders, that right is currently non-existent, unless or until the Plaintiff shows good reason why he should be accorded the right of inspection.

Nor do I consider that Mr Robertson is assisted by resort to Article 8 or Article 10 of the European Convention of Human Rights in this regard. In relation to Article 8 (Right to respect for private and family life), he has sought to rely upon a number of extracts from ECHR decisions in relation to the definition of the notion of 'private life' and the fact that 'Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings' (see Niemietz v Germany (1993) 16 EHHR 97 at para 29). He refers to observations in a trio of cases Botta v Italy (1998) 26 HER 241 at para 32, Bensaid v UK (2001) 33 EHRR 205 at para 47 and Pretty v UK (2002) 35 EHRR 1, culminating in the statement at para 61 of Pretty that:

"…the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity…. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world."

Mr Robertson refers also to Gaskin v UK (1990) 12 EHRR 36 in which the European Court emphasised the need for specific justification for preventing individuals from having access to information which forms part of their private and family life and Guerra v Italy (1998) 26 EHRR 357 in which the European Court confirmed that Article 8 of the Convention can impose a positive obligation on the State to provide information to an individual in order to ensure effective protection of that individual's right to respect for their private and family life. Finally, he refers to inRe Angela Roddy [2004] EWHC 2927 (Fam) [2004] EMLR 8 at para 35 in which Munby J stated:

"The personal autonomy protected by Art 8 embraces the right to decide who is to be within the 'inner circle', the right to decide whether that which is private should remain private or whether it should be shared with others. Article 8 thus embraces both the right to maintain one's privacy and, if this is what one prefers, not merely the right to waive that privacy but also the right to share what otherwise would be private with others or, indeed, with the world at large. So that the right to communicate one's story to one's fellow beings is protected not merely by Art 10 but also by Art 8."

The reasons why these cases appear to me to be of no assistance to Mr Robertson's argument can be simply stated. The Human Rights Act was enacted and the Convention concluded in order to protect from interference and prejudice real rights and existing situations, not illusory rights or imaginary claims. A claimant is entitled to respect for the existence and development of his or her real family life under Article 8 and not for a fantasy family life, the product of his or her imagination. There is no evidence and can be no realistic suggestion that the Plaintiff's real private or family life is related in any way to that of the royal family. All of the authorities cited by Mr Robertson are cases in which an individual was able to demonstrate a personal interest in receiving information relating to his or her private or family life as it truly existed. The right to respect for one's private and family life does not include a right to make an unfounded claim to be related to a stranger (thus, incidentally, intruding on that stranger's private or family life), nor do any of the judicial observations referred to by Mr Robertson begin so to suggest.

So far as concerns Mr Robertson's reference to Article 10 (Freedom of Expression), paragraph 1 of that Article provides:

"1.

Everyone has the right to freedom of expression. This right should include freedom to hold opinions and receive and impart information and ideas without interference by public authority and regardless of frontiers…"

Mr Robertson did not develop any substantial argument based upon Article 10. It is of course the position that Article 10 does not confer a general right of access to information held by State bodies. The right to freedom to receive information basically prohibits governments from restricting a person from receiving information which others wish or may be willing to impart: see Leander v Sweden (1987) 9EHRR 433 at paragraph 74. The withholding of access to the royal wills does not in itself involve any fetter upon or interference with the Plaintiff's freedom of expression as contemplated by the Convention.

The Plaintiff's claim should be struck out as vexatious and an abuse of process, made as it is solely for the purpose of seeking to establish an imaginary and baseless claim.