HM Attorney General v Covey

Monday 19 February 2001

: There are before the court two linked applications, the first by Mr Andrew Covey and the second by Dr Barry Matthews. Both are renewed applications seeking permission to appeal against Civil Proceedings Orders made against each of the applicants under section 42 of the Supreme Court Act 1981. The applications were linked to allow the court to consider certain related issues. Those issues are: first, whether Mr Covey and Dr Matthews have respectively, habitually and persistently, and without any reasonable grounds, instituted vexatious civil proceedings; secondly, whether the Divisional Court exercised their discretion properly in making the section 42 orders against each of the applicants; and thirdly, whether the making of section 42 orders is in breach of Schedule 1, Article 6(1) of the Human Rights Act 1998.

In his application this morning, Mr Covey took the course of stripping off his clothes and throwing water at one member of the court. He has subsequently made oral submissions to the court after giving an undertaking to behave. He has not repeated his misconduct. He has made submissions which have no relevance whatsoever to the issues before the court. However, someone has prepared on his behalf (or he has prepared himself) a detailed skeleton argument which the court has read.

The application in Dr Matthews' case is novel since he has not, in a skeleton argument which was filed on his behalf by counsel who appeared before the Divisional Court, contested that he has generally conducted litigation which was vexatious and unreasonable. He submits that his conduct does not fall within section 42 of the Supreme Court Act because his campaign of litigation was conducted against different individuals. He therefore contends that he does not fulfil the requirements of section 42, which requires conduct to be habitual and persistent. Dr Matthews contends that the mischief that section 42 is designed to prevent is abuse of the system by litigants repeatedly bringing proceedings against the same person or a group of persons and raising the same or similar issues. Dr Matthews says that the Divisional Court unjustifiably and unprecedently widened the principles set out in section 42, as elucidated by Lord Bingham in Attorney General v Barker [2000] 1 FLR 759.

Section 42 provides so far as relevant:

"(1) If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground

(a) instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person; or

(b) made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another; or

(c) instituted vexatious prosecutions (whether against the same person or different persons), the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order, a criminal proceedings order or an all proceedings order."

Section 1A provides:

"In this section —

'civil proceedings order' means an order that -

(a) no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made; ."

It is common ground that Mr Covey and Dr Matthews are entitled to rely on Article 6 of the European Convention on Human Rights which is set out in the Schedule to the Human Rights Act 1998. Section 6 of the 1998 Act provides :

"(1) It is unlawful for a public authority to act in a way which is incompatible with Convention rights."

Section 6(3) of the Act states that a "public authority" includes a court or tribunal.

Article 6 so far as relevant provides:

"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

On behalf of Dr Matthews, Mr Pickering accepts that it is clear from the case law that the right given by Article 6 is not absolute but may be subject to limitations by a regulation. However, he argues that the limitation must not be such that the very essence of the right is impaired. He therefore submits that section 42 is to be applied and interpreted in a manner which is consistent with Article 6. That was accepted to be the position by the Divisional Court if there is any question of conflict with Article 6 in the case of Dr Matthews (see paragraph 55 of the judgment), and is also accepted by me to be the position when considering an application under section 42.

The facts

Mr Covey's application for permission to appeal

On 6 October 2000, following a hearing lasting a day and a half, the Divisional Court made the order. It was subject to four exceptions in relation to existing actions in three cases against the Chief Constable of Surrey Police. Those cases are respectively numbered GEU807615, 900342, 901678 and 901124.

In the course of his judgment setting out the reasons why he thought it right to make the order, Lord Justice Buxton, with whose judgment Mr Justice Penry-Davey agreed, points out that Mr Covey addressed the court on the day of the hearing from approximately 12.45pm to 4.15pm (a total period of two-and-a-half hours). The Lord Justice adds:

"Much of what he said appeared to us to be irrelevant to the detail of the issues before the court and much of it was directed to . seeking to re-open the merits of actions already decided against him and of the dispute underlying some but not all those actions ."

Mr Covey's submissions to this court this morning make it only too understandable why Lord Justice Buxton felt it necessary to make those remarks.

Get me a jury and see what they say.

: His submissions so far as fact was concerned rest upon an assertion of no relevant evidence having been filed.

A load of bollocks.

: Some time was taken in reading out factual matters that had already been opened by counsel for the Attorney General. The Divisional Court were unsuccessful in their attempts to limit Mr Covey's submissions to the afternoon. They therefore indicated that he could continue the following morning from 10am up to 11.30am, but no longer. Mr Covey complained of that ruling, but the Divisional Court declined to alter it. In his judgment Lord Justice Buxton stated that the court had in mind the interests of other litigants who had a right of reasonable access to the courts and to the court's time, as well as the needs of the present case. He went on to say:

"We were satisfied that the time allocated would be amply sufficient for us to receive and understand Mr Covey's case."

The members of the present court have spent a considerable time reading the details of Mr Covey's case. It appears to us that the period of time allowed to Mr Covey in order to consider his arguments as to why an order should not be made were generous and certainly sufficient to enable him to advance any arguments that would have been appropriate.

When the Divisional Court sat at 10am on the second day, Mr Covey presented the court with a 60-page skeleton argument. The court retired to read the document and returned at 10.30 to hear further submissions.

In his judgment Lord Justice Buxton subsequently went on to describe the actions which were the basis for the application. As to the nature of the actions he added:

"Many but by no means all of these actions have, at least as their background, a dispute between Mr Covey and a family called Daubney that appears to have arisen in the mid-1990s. Mr Covey asserts that he had, at least since 1993, been the subject of untrue allegations of sexual perversion by the daughters of that family, that the parents had wrongly supported those allegations and generally harassed Mr Covey and that they had wrongly conspired with the police to harass Mr Covey and to ensure that his complaints remained uninvestigated. Mr Covey also alleges that the father of the family, Mr Terence Daubney, is a Justice of the Peace and that he has misused his position and his supposed influence with the police force in order to handicap Mr Covey."

Here, here.

: Mr Covey has made similar submissions to the court today.

Mr Covey had been made the subject of a restraining order under section 5 of the Protection from Harassment Act 1997. The order was made on the basis that he had harassed members of the family, including Julie Daubney, between June and July 1997.

Point of order, your Honour. The law was passed on 1 July.

: The order was made -

I was out of the country at the time.