Neutral Citation Number:  EWCA Civ 254
IN THE SUPREME COURT OF JUDICATURE C/2000/3293
COURT OF APPEAL (CIVIL DIVISION) C/2000/3573
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Buxton LJ & Penry-Davey J)
(Rose LJ & Moses J) Royal Courts of Justice
Monday 19 February 2001
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)
LORD JUSTICE MAY
LORD JUSTICE JONATHAN PARKER
B E T W E E N:
HER MAJESTY'S ATTORNEY GENERAL
A N D B E T W E E N:
HER MAJESTY'S ATTORNEY GENERAL
DR BARRY MATTHEWS
(Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 0201 7421 4040
Official Shorthand Writers to the Court)
THE APPLICANT ANDREW COVEY appeared in person
THE APPLICANT DR BARRY MATTHEWS did not appear and was not represented
MR JAMES EADIE and MR ADAM TOLLEY (instructed by the Treasury Solicitor) appeared on behalf of THE RESPONDENT
J U D G M E N T
(As Approved by the Court)
Monday 19 February 2001
1. THE LORD CHIEF JUSTICE: 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.
2. 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.
3. 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  1 FLR 759.
4. 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."
5. 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;...."
6. 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."
7. Section 6(3) of the Act states that a "public authority" includes a court or tribunal.
8. 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."
9. 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.
10. Mr Covey's application for permission to appeal
11. 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.
12. 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...."
13. 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.
14. THE APPLICANT: Get me a jury and see what they say.
15. THE LORD CHIEF JUSTICE: His submissions so far as fact was concerned rest upon an assertion of no relevant evidence having been filed.
16. THE APPLICANT: A load of bollocks.
17. THE LORD CHIEF JUSTICE: 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."
18. 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.
19. 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.
20. 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."
21. THE APPLICANT: Here, here.
22. THE LORD CHIEF JUSTICE: Mr Covey has made similar submissions to the court today.
23. 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.
24. THE APPLICANT:Point of order, your Honour. The law was passed on 1 July.
25. THE LORD CHIEF JUSTICE: The order was made --
26. THE APPLICANT: I was out of the country at the time.
27. THE LORD CHIEF JUSTICE: Would you please keep quiet?
28. THE APPLICANT: How can I harass them? I wasn't even in the country.
29. THE LORD CHIEF JUSTICE: Would you please keep quiet or you will have to leave court?
30. THE APPLICANT: I was just picking up on a point of law, that's all. The law was passed on 1 July.
31. THE LORD CHIEF JUSTICE: Mr Covey, would you please keep quite and not interrupt me?
32. THE APPLICANT: Am I right?
33. THE LORD CHIEF JUSTICE: If you do interrupt me, then you will have to leave court.
34. THE APPLICANT: Please tell this court when the Harassment Act was passed.
35. THE LORD CHIEF JUSTICE: The court is going to adjourn.
36. THE APPLICANT: Fine. The Harassment Act was passed on 1 July. I was out of the country. How can I harass somebody when I'm out of the country? This is a kangaroo court and you are a bent judge.
(The court adjourned for a short time. The applicant left court)
37. THE LORD CHIEF JUSTICE: The order was made for the purposes of protecting her and three other members of the family. He was also convicted of common assault, criminal damage and a matter of harassment. For one of those offences he was sentenced to three months' imprisonment. I do not propose to set out the details of the various actions because they are referred to in Lord Justice Buxton's judgment, but Lord Justice Buxton made a number of points with regard to the actions to which I should refer:
(1) While within the limitation period, the actions were all started a substantial period after the conduct complained of.
(2) A number of the actions appear to duplicate each other.
(3) A major number of the actions could probably have been consolidated in a single claim.
(4) All of the actions have been struck out either because of failure to comply with a court order or because they showed no cause of action.
(5) Some of the actions seek to re-litigate issues in relation to which Mr Covey had been convicted.
38. In his comments today, Mr Covey said that the number of proposed actions had been underestimated by the court; that there were 54 actions in all. When Mr Covey's actions were dismissed, his automatic reaction was to appeal.
39. The actions fall into different categories. Some were against the Chief Constable of Surrey and the members of the Surrey Constabulary. Mr Covey makes complaint about assaults on him while he was in custody, wrongful arrest, negligence and dereliction of duty in failing to investigate his complaints, harassment and conspiracy to pervert the course of justice, malicious prosecution, actual bodily harm and intimidation of a witness. The reason why there were three exceptions made to the order is that in January 2000 His Honour Judge Cook, sitting at Staines County Court, struck out twelve of the fifteen actions brought by Mr Covey on procedural grounds and because there was no real prospect of success. He left three actions in being. The Divisional Court concluded that those three actions should be allowed to continue.
40. As a result of a conviction for an assault in respect of the Daubney family, Mr Covey was dismissed from his employment with the Co-Operative Insurance Society. A third group of actions related to this dismissal. There were proceedings before an industrial tribunal and a subsequent appeal to an Employment Appeal Tribunal, actions against the President of the Employment Appeal Tribunal and an action against an employee of the Co-Operative Insurance Society. There was also an action alleging bullying, discrimination and other similar matters by the staff of the Insurance Society.
41. The detailed grounds of appeal relied on by Mr Covey are that by restricting his submissions the court denied him natural justice and contravened Article 6(1). He contends that the hearing was not before a fair, independent and impartial tribunal, contrary to Article 6(1), in that the law officers, one of whom was responsible for seeking the section 42 order, are consulted as to the appointment of judges to the High Court and are members of the government who made the recommendations regarding the appointment of Lord Justice Buxton and Mr Justice Penry-Davey.
42. So far as the hearing today is concerned, the skeleton argument filed on behalf of Mr Covey also contends that I should not hear the present applications because I am disqualified to do so by reason of the fact that when I was a Member of the Bar I appeared for the Attorney General as an amicus curiae in a number of cases when Treasury counsel. I confirm that factually that is the correct position. It is also correct that I appeared in applications under section 51 of the Supreme Court of Judicature (Consolidation) Act 1925, which preceded section 42 of the Supreme Court Act 1981. The fact that I did so does not, in my judgment, in any way disqualify me from hearing this application.
43. Mr Covey also contends that he should be supplied with a copy of a Bench Memorandum and a summary or "secret briefing" prepared for the court by the judicial assistant. He complains about the court declining to inform him of its contents. He submits that the Divisional Court had misapplied the test laid down in Attorney General v Barker. He also contends that the Divisional Court erred in taking into account the delays in instituting proceedings when they had been instituted within their respective time limits under the Limitation Act, and in making the order under section 42 to apply for an indefinite period.
44. In the case of Dr Matthews, the Divisional Court gave its judgment on 14 November 2000. The court consisted of Lord Justice Rose and Mr Justice Moses. In his judgment Lord Justice Rose set out the factual background. He does so relying on a schedule to the affidavit of a Mr Lutterodt filed on behalf of the Attorney General which refers to 33 actions. Lord Justice Rose sets out the nature of the actions and it is therefore not necessary for to me to do so again. However, Lord Justice Rose makes clear that Dr Matthews liberally sprays his litigation among those with whom he has dealings. The period covered by the evidence commences in 1992 and continues until 1999. An example of one feature of the actions is provided by action number 10 against BT. The proceedings focused on the fact that Dr Matthews alleged that he was overcharged the princely sum of £3.65. The action was dismissed by the district judge, but Dr Matthews appealed. Another action was against Texaco Limited for its failure to warn the public of a biological disaster. There was an action against the Law Society claiming damages for denial of access to appropriate legal education.
45. As was accepted in the skeleton argument by Dr Matthews' counsel, the actions were clearly vexatious. It was not surprising that they were usually struck out. They were then followed by an unsuccessful appeal. In summary, the position is that of the 33 actions which were brought, 25 have been struck out or summarily dismissed, four failed on their merits, and in one there was acceptance of a payment into court. In three actions Grepe and Loam orders were made, preventing Dr Matthews from taking any further steps in the actions. As Lord Justice Rose points out, as at all times Dr Matthews "appears to have been on income support and therefore exempt from court fees" there "has been no realistic prospect of those whom Dr Matthews sued unsuccessfully recovering costs against him."
46. I commence with Mr Covey. I will deal with his main grounds in turn insofar as I have not already dealt with them.
47. Article 6 is central to the majority of Mr Covey's contentions. There is no doubt that it is necessary for the court to ensure that before any section 42 order is made, Article 6(1) is complied with. Mr Covey is entitled to a fair opportunity to put his case before a court which is independent and impartial, and to know the case which he has to meet. He challenges that this has happened. First, he complained about the time limits which were imposed by the Divisional Court. As submitted on behalf of the Attorney General in a skeleton argument prepared by Mr Eadie, a fair and reasonable opportunity does not involve an unlimited and uncontrolled opportunity to address the court. There is inherent in the Convention as a whole the need to balance the interests of the individual against the interests of the general community. If Mr Covey was given unlimited time to make oral submissions, this would be to prejudice other litigants who are waiting to have their cases heard and result in unnecessary expense to the justice system. The Divisional Court allowed him to produce a further 60-page skeleton. The court retired to try and digest that skeleton argument. It is not required to try and digest unlimited written material. Mr Covey had ample opportunity to put forward his case. He has suffered no prejudice since everything which was relevant was placed before the court.
48. Mr Covey finds it impossible to confine himself to matters which are relevant to the issues before the court. Today Mr Covey insisted on interrupting the court whilst judgment was being given. A litigant has a right to be present in the ordinary way when a court is giving an oral judgment. However, if he behaves in a way which makes it impractical for the court to continue, then there is no alternative but to direct that the litigant be removed from the court.As to the impartiality and independence of the members of the court, the consultation of the law officers prior to the appointment of a judge does not compromise the impartiality of that judge once appointed. Members of a court are in a very different position from that considered in Starrs v Procurator Fiscal  ILRC 718, which was relied upon by Mr Covey in written argument. Here there are full-time members of the judiciary who have taken the Oath of Office of Judges. They have security of tenure and the issues raised in the Starrs' case have no application. There is no legitimate reason which is objectively justifiable to fear a lack of impartiality so far as the members of the Divisional Court are concerned or of this court.In view of the allegation made by Mr Covey, it is useful to consider why applications for an order under section 42 are made on behalf of the Attorney General. The involvement of the Attorney General is intended as a safeguard for the defendant to the application. The Attorney General, in making the application, is acting in his long established constitutional role as the guardian of the public interest. His involvement is an acknowledgement that an application should only be made where there is solid ground for saying that the curtailment of the interests of the individual to have unlimited access to the courts can be justified. There was a time when for this reason an application for what is now a section 42 order was always personally made by the Attorney General for the time being. The burdens of the Attorney General's office today means that this is no longer practical. Instead, the applications are made by one of the counsel nominated by him to act on his behalf. However, the former practice is a reminder of the importance the courts rightfully attach to any interference with the normal rights of the citizen to access to the courts and is also a recognition of the fact that the court appreciates that making a section 42 order interferes with that right.While recognising the importance of what is involved in making a section 42 order, it is also important to bear in mind that the court can always give permission to commence proceedings, and will do so if there are reasonable grounds for bringing the proceedings. It is also necessary to recognise the importance of the protection which section 42 provides for those who would otherwise be the subject of the vexatious litigation.
49. It is right to assume that in Mr Covey's case before the Divisional Court there would have been a Bench Memorandum prepared by a judicial assistant. One has also been prepared for the hearing before us. It is not the practice for civil courts to disclose those memoranda. Prior to the coming into force of the Human Rights Act 1998, I gave a judgment in Anthony Bryden Parker v Law Society  COD 183. I dealt in some detail with the question of the disclosure of Bench Memoranda. I stressed that if there was any question of a litigant being prejudiced by a Bench Memorandum, then it would be disclosed by the members of the court on their own initiative. There is nothing to suggest that Mr Covey could suffer any prejudice by the non-disclosure of any Bench Memorandum. In his case, as is almost invariably the situation, the memorandum consists of no more than an analysis of the factual material (which is already available to the litigant), reference to relevant legal authorities and principles, and comments which the judicial assistant makes as to the merits of the proceedings before the court.
50. In consequence of the coming into force of the Human Rights Act 1998 and the need to comply with Article 6(1) it was important to reconsider the position of the practice of the court as to Bench Memoranda. In my judgment, Article 6 does not change the position from that indicated in the Parker judgment. In that case the court adopted a standard which was at least as high as that required by Article 6(1). As was indicated in that case, the court was also adopting the same standard which is adopted in great many jurisdictions of which inquiries were made, including the European Court of Human Rights.
51. The remaining arguments for Mr Covey are directed to the merits of the decision of the Divisional Court, apart from a new argument which he has advanced before this court based upon the Data Protection Act 1998. In my judgment, Bench Memoranda do not fall within the basic interpretive provisions contained in section 1(1) of the Data Protection Act. In any event, as indeed the skeleton argument acknowledges, so far as manual data are concerned, there are exemptions which are contained in Schedule 8 to the Act which continue to apply until 24 October 2001. In my judgment, the Data Protection Act has no relevance with regard to the issues before the court.
52. I am wholly satisfied that on the material which was before them the Divisional Court could not properly have come to any conclusion other than that a section 42 order was fully justified. That Mr Covey's conduct fell within section 42 was beyond argument, and indeed the court has some sympathy for the Daubney family for their having been subject to the litigation process which they have.
53. Reference has already been made to the fact that the circumstances leading to Dr Matthews' order are unusual because of there not being the usual repeated litigation against a few targets. Instead, there was repeated litigation, but it was directed at a variety of defendants. Before the Divisional Court Dr Matthews was represented. He now no longer has legal aid and so he represents himself. He did not attend today, but he did instruct counsel, who appeared pro bono, to seek an adjournment because of his wish to bring a further application for judicial review. The court indicated that the question of legal aid should depend on the outcome of his application for permission to appeal.
54. As the court has already made clear, counsel who appeared for him before the Divisional Court has prepared a skeleton argument. It is of considerable benefit to this court and we thank counsel for preparing it. It was submitted to the Divisional Court that the 33 claims were not generally vexatious and/or instituted without reasonable grounds. It was pointed out that three of the claims had been successful, and not all the remaining 30 unsuccessful claims had been struck out for not disclosing a cause of action. Most of the others had failed for other reasons relating to the defendant's failure adequately to plead or present his various claims. According to the skeleton argument, Dr Matthews accepts that he could not challenge the Divisional Court's decision that the proceedings were vexatious and initiated without reasonable grounds for doing so. However, the skeleton points out that there is a second requirement of section 42: that the proceedings should be habitual and persistent. It is contended that there needs to be an element of repetition in the proceedings against a particular defendant if they are to fall within the section. There is reference made to a statement of Lord Bingham in Attorney General v Barker (2000) 1 FLR 759, 764:
"From extensive experience of dealing with applications under section 42 the court has become familiar with the hallmark of persistent and habitual litigious activity. The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of resisting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who if they were to be sued at all should have been joined in the same action ....
[Counsel for the Attorney General] acknowledges that the words 'habitually and persistently' connote an element of repetition, but says that that repetition need not be over a long period. I would accept that qualification, but there must nevertheless be that element of repetition and in my judgment it is not shown here. I would accordingly hold that the conditions for making an order under section 42(1) are not satisfied ...."
55. The reference by Lord Bingham in that passage from his judgment to what is the usual position does not avoid, in my judgment, an order being made in circumstances such as exist here.
56. In the skeleton argument to which I have made reference, there is also a citation from a passage in the judgment of Lord Justice Rose in the Divisional Court which is relevant. Lord Justice Rose said:
"53. Mr Pickering concedes that there is, in the defendant's litigation, what he calls 'minimal repetition', but there is not, he submits, that characteristic of repeated litigation against the same defendant, or repeated litigation in relation to the same subject matter, which has, in the authorities to which he invited our attention, led to the making of an order of this kind: that is plainly so. The question is whether it is a necessary prerequisite for the making of an order under section 42 that the repetitious behaviour of which complaint is made has necessarily either to be directed against the same defendant or to arise from the same subject matter.
54. In my judgment, that is not the position. Granted that repetitious conduct is a necessary prerequisite for the making of an order, what gives rise to that repetitiveness necessarily depends, it seems to me, on the circumstances of the particular case. In making the determination whether or not there is that necessary element of repetition one looks at the whole history of the defendant's litigious activity. In some cases that activity will focus upon a particular defendant. In some cases it will focus upon a particular grievance. In some cases it may be represented by numerous claims against a wide range of defendants in circumstances where no reasonable cause of action exists. In this last category of case, as it seems to me, the conditions of section 42 may be fulfilled just as they may be if a particular defendant or a particular grievance is the focus of the defendant's activity. As the passages in the judgment in Vernazza to which I earlier referred, make plain, one has to look at the whole of the circumstances, the way in which the proceedings were instituted, whether with or without reasonable cause, and also the way in which subsequently they were conducted by way of hopeless appeal or otherwise. All of those matters have to be considered."
57. The Divisional Court then went on to hold that the requirement of repetition was satisfied in that, although the defendant had not repeatedly sued the same party or relied on the same subject matter, he had repeatedly brought proceedings which were vexatious in nature. If I may respectfully say so, Lord Justice Rose has set out, in a way on which I could not improve, the position in paragraph 54.
58. In support of his argument that the Divisional Court's approach was wrong, the following points were made by counsel:
1. The approach to the Divisional Court amounts to an unjustified and unprecedented widening of the principles set out by Lord Bingham in Barker, which were recently approved and followed in Attorney General v Flack (CO/3416/1999, unreported, 29.11.2000, at paragraph 25).
2. The mischief that section 42 is designed to prevent is repeated litigation against the same person on the same issue. If the Divisional Court's approach were to be correct, it is said that this would constitute a significant widening of the mischief to which the section is aimed.
3. If the Divisional Court were to be correct in its extension, "the whole concept of repetition is rendered meaningless, since almost by definition the cases in question would have to have had no reasonable cause of action if they are to satisfy the first requirement of being vexatious."
4. It is said that the second requirement of section 42, namely that the vexation litigation has to be instituted "habitually and persistently" has not been satisfied in respect of the defendant.
59. These submissions were made by counsel in the context of Article 6 and it is submitted that to widen the application of section 42, as was done by the Divisional Court, would result in a contravention of Article 6. It is said that, while Dr Matthews may be quick to sue, he was not someone who fell within section 42.
60. In considering the validity of these submissions, it is useful to refer to the decision of the European Court of Human Rights in Tolstoy Miloslavsky v United Kingdom (1999) 20 EHRR 442. In that case the court said:
"59. The Court reiterates that the right of access secured by Article 6(1) may be subject to limitations in the form of regulation by the State. In this respect the State enjoys a certain margin of appreciation. However, the Court must be satisfied, firstly, that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aims sought to be achieved."
61. Guided by what was said by the European Court in that case, I have no doubt that the Divisional Court was right to come to the decision which it did. By choosing different targets for his litigation, Dr Matthews caused a variety of different defendants to suffer some disadvantage by litigation. But in deciding whether the conditions set out in section 42 are met, it is necessary to look at the whole picture. It is the cumulative effect of Dr Matthews' activities, both against the individuals who are drawn into the proceedings and on the administration of justice generally that has to be taken into account. When this is done, I have no doubt that to make an order against Dr Matthews does pursue a legitimate aim and that there is a reasonable relationship and proportionality between the means employed and the aims sought to be achieved. Furthermore, because of the ability of the court to give permission for the bringing of any proceedings which are justified, the limitation which is imposed does not restrict or reduce the access left to the individual to an extent that the very essence of the right of access to justice is removed.
62. It is suggested that the Divisional Court's reasoning was inadequate. I do not accept this is so. A court does not have to answer every argument that is advanced. It is sufficient if it deals with the principal arguments and makes it clear the basis of the decision. In my view, the judgment of the Divisional Court achieves this.
63. The position can be summarised by pointing out that 25 of the 33 actions brought by Dr Matthews have been struck out or summarily dismissed and four failed on their merits. There were numerous applications and appeals made in the actions. The actions had stretched over a period of about seven years. Many of the actions were issued at the same time. There were also many instances of the same point being re-litigated after a final decision has been made. Dr Matthews' appeal also lacks any merit.
64. Before leaving the present applications, I should add a comment about the fact that the orders which are made are orders unlimited in time in the case of both applicants. This a matter of which Mr Covey in particular complained, both in his written and oral submissions. In my judgment, the position is that the court always has a jurisdiction to vary orders which have been made in the light of entirely new circumstances. However, that the orders should be made in the first instance in cases of this sort, unlimited in period of time, is, in my judgment, fully justified. The fact that there are the orders prevents an applicant conducting litigation which is vexatious. If the order achieves that purpose, then it is a safeguard against which those who would be subject to the inconvenience of the litigation which would otherwise occur are entitled to be protected. They should not be put in a position where, because of the expiry of a limited period of time, they should be again exposed to unjustified litigation. I would therefore dismiss both these applications for permission to appeal.
65. As Dr Matthews was not, in my judgment, in a position to put forward anything like an arguable case, there can be no criticism of the legal aid authorities for not extending him legal aid for the purposes of making the application for permission.
66. LORD JUSTICE MAY: I agree that each of these applications for permission should be dismissed for the reasons which the Lord Chief Justice has just given, with which I entirely agree.
67. I mention one matter only in relation in particular to the application of Dr Matthews. Relevant ingredients which section 42(1) of the Supreme Court Act 1981 requires for the court to have power to make a Civil Proceedings Order include that the High Court has to be satisfied that the person in question has habitually and persistently, and without any reasonable cause, instituted vexatious civil proceedings, whether against the same person or against different persons or has made vexatious applications in any civil proceedings.Lord Bingham, in his judgment in Barker, considered the application of this section. The submission on behalf of Dr Matthews is that the section does not apply to the facts of his case because, in the main, the 33 actions relied on in support of the application were against different defendants. Counsel's skeleton submission does not seek to challenge the finding of the Divisional Court that Dr Matthews' litigation was generally vexatious and unreasonable, but it is submitted that it is not sufficient to show that a defendant has instituted a large number of proceedings. There has to be an element of repetition such as Lord Bingham referred to in Barker. Since Dr Matthews 33 actions were not in the main against the same person, nor did they arise out of the same subject matter, a necessary element of repetition was absent and the submission is that the Divisional Court's decision to the contrary was an unjustified and unprecedented widening of the principles which Lord Bingham set out in Barker.
68. Section 42, it is submitted, is designed to prevent abuse by a litigant keen to litigate repeatedly against the same person on the same issue. People should not be inhibited from instituting unrelated claims against different people, even if each of them is unreasonable and vexatious.
69. I do not accept this submission. I agree with paragraphs 53 and 54 of the judgment of Lord Justice Rose in the Divisional Court in Dr Matthews' case which Lord Woolf has cited in full. It is also I think pertinent to observe that section 42(1)(a) itself expressly includes the institution of vexatious civil proceedings "against different persons". It seems to me in those circumstances verging on the absurd on the one hand to accept that instituting 33 vexatious actions without reasonable grounds against the same person or a small group of persons falls within the section, but to contend that instituting 33 vexatious actions without reasonable grounds against 33 different people does not.
70. The truth is that Dr Matthews' institution of vexatious proceedings without reasonable grounds was habitual and persistent and against different persons. Those are all the ingredients, and sufficient ingredients in his case, which section 42(1) requires.
71. LORD JUSTICE JONATHAN PARKER: I also agree that these applications should be dismissed for the reasons which my Lords have given.
ORDER: Applications dismissed.
Attorney General v Covey (Queen's Bench)
COVEY - GROUNDS OF APPEAL (COURT OF APPEAL)
COVEY - SKELETON ARGUMENT (COURT OF APPEAL)
COVEY - SKELETON ARGUMENT (QUEEN'S BENCH)
To Matthews (related judgment)
Back To Court Of Appeal Judgments
Back To Site Index