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In Holt v Information Commissioner & Ministry of Justice [2026] UKUT 87 (AAC), the Upper Tribunal (UTJ West) had to grapple with difficult issues of who holds copies of original wills and in what capacity, for the purpose of FOIA proceedings.
Mr Holt requested a copy of an original will for a named individual from the Ministry of Justice. The will was located in the National Probate Records Centre, which is operated by a contractor under a contract with HM Courts & Tribunals Service, part of the MOJ. But those documents are held pursuant to s.124 Senior Courts Act 1981 (with controls on disclosure vested in the courts under s.125 of that Act and rule 58 of the Non-Contentious Probate Rules 1987).
The effect of these provisions is that all original wills and other documents are under the control of the High Court, either via the Principal Registry or any district probate registry. There is a scheme for their deposit in particular locations – such as the National Probate Records Centre – but this does not take them outside the control of the High Court.
The result is that, because court is not a public authority for the purposes of FOIA, wills under the High Court’s control do not fall within the scope of a FOIA request.
Though the MOJ, via HM Courts & Tribunals Service’s ultimate control of the place of deposit of such wills, has physical possession of them, that does not mean that it ‘holds’ them for the purposes of FOIA.
Mr Holt’s arguments about the effects of the Public Records Act were rejected, both because they did not affect the analysis above but also because an original will was held not to be a public record in any event.
Although the decision relates to a highly specific class of documents, it points to the ever-present need to be alert in FOIA cases, which are endlessly capable of generating difficult and technical issues!
Further reading: Holt v Information Commissioner & MOJ [2026] UKUT 87 (AAC)
Aaron Moss of 5 Essex acted for the MOJ in the Upper Tribunal; Peter Laverack acted for the MOJ in the FTT.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
