HM Attorney General v Covey

A civil proceedings order under Supreme Court Act 1981, section 42 may be made where a litigant’s vexatious proceedings, taken cumulatively, are habitual and persistent and lack reasonable grounds. Repetition need not consist of claims against the same defendant or arising from the same grievance.

The order is compatible with Article 6(1) where the person has a fair opportunity to be heard, the restriction pursues the legitimate aim of protecting others and the administration of justice, and leave remains available for proceedings with reasonable grounds. An order may properly be unlimited in duration, subject to the court’s jurisdiction to vary it upon entirely new circumstances.

These were linked renewed applications for permission to appeal against civil proceedings orders made by the Divisional Court under section 42 of the Supreme Court Act 1981.

Mr Covey challenged an order made on 6 October 2000, which was subject to limited exceptions for three existing actions. He alleged procedural unfairness, lack of judicial impartiality, unlawful non-disclosure of bench memoranda, and error in making an indefinite order.

Dr Matthews challenged an order made on 14 November 2000. He accepted that much of his litigation had been vexatious and without reasonable grounds, but contended that proceedings against varied defendants and concerning varied matters could not be habitual and persistent within section 42. The central issues were the proper scope of section 42 and its compatibility with Article 6(1).

1. The applications were unanimously dismissed. Lord Woolf CJ gave the leading judgment. May LJ and Jonathan Parker LJ agreed.

2. Section 42 requires an assessment of the litigant’s whole history. Habitual and persistent vexatious proceedings need not repeatedly target the same person or arise from one subject matter. The ordinary hallmark described in Attorney General v Barker [2000] 1 FLR 759 did not make those features indispensable. Dr Matthews’ numerous groundless claims, appeals and re-litigation over several years satisfied the statutory conditions despite their varied targets.

3. Article 6(1) required a fair opportunity to answer the application before an independent and impartial court. It did not require unlimited oral or written submissions. The Divisional Court had given Mr Covey sufficient opportunity to put relevant material before it. Consultation of the law officers before a judicial appointment did not create an objectively justified fear of bias in respect of full-time judges with security of tenure.

4. Applying the access-to-court principles stated in Tolstoy Miloslavsky v United Kingdom (1999) 20 EHRR 442, a section 42 order pursued legitimate aims: protecting those exposed to vexatious claims and safeguarding court resources. It was proportionate because leave remained available for proceedings with reasonable grounds. The restriction therefore did not impair the essence of access to a court.

5. Article 6 did not require disclosure of a bench memorandum where it caused no prejudice. The court’s established practice was to disclose material on its own initiative if disclosure were needed to avoid prejudice. The Data Protection Act 1998 did not assist Mr Covey.

6. An order without a fixed end date was justified. It prevented renewed vexatious litigation while preserving the possibility of leave for a proper claim and of variation if entirely new circumstances arose.

• Court of Appeal (Civil Division): Renewed applications for permission to appeal were dismissed. The civil proceedings orders remained in force.
• High Court, Queen’s Bench Division, Divisional Court: Buxton LJ and Penry-Davey J made a civil proceedings order against Mr Covey on 6 October 2000. Rose LJ and Moses J made a civil proceedings order against Dr Matthews on 14 November 2000.