Attorney General v Burgess

Under section 42 of the Supreme Court Act 1981, the High Court may make an all proceedings order where a person has habitually and persistently, without reasonable grounds, instituted vexatious civil proceedings, made vexatious applications, or instituted vexatious prosecutions. A vexatious proceeding generally has little or no legal basis, imposes disproportionate inconvenience, harassment or expense, and abuses the court process. The civil standard of proof applies, with proper regard to the seriousness of the allegations. The court must give the respondent an opportunity to be heard. An indefinite all proceedings order is justified where the history demonstrates continuing misconduct and no lesser measure would be effective.

The Attorney-General applied under section 42 of the Supreme Court Act 1981 for an all proceedings order against Ralph Burgess. The application followed a lengthy history of private prosecutions, civil claims, judicial review applications and related proceedings brought by Mr Burgess against different individuals and public bodies. An interim order had been made in 2001 while questions concerning his fitness to litigate were investigated. Despite later directions and opportunities to provide medical evidence or agree to examination, no satisfactory evidence was produced. The central issue was whether the statutory conditions for an all proceedings order were established and whether Mr Burgess had been given a proper opportunity to be heard.

1. Statutory test. The court was satisfied that Mr Burgess had habitually and persistently, without reasonable grounds, instituted vexatious criminal proceedings and prosecutions against different persons in different courts, and had made vexatious applications in those proceedings. Those matters fell within section 42 of the Supreme Court Act 1981.
2. Meaning of vexatious proceedings. Adopting the description given in Attorney General v Barker [2001] 1 FLR 259, the court treated a proceeding as vexatious where it had little or no discernible legal basis, imposed inconvenience, harassment and expense out of proportion to any likely benefit, and abused the court process.
3. Standard and procedural fairness. The applicable standard of proof was the civil standard, with due regard to the seriousness of the issues. The criminal standard did not apply, consistently with Attorney General v Hayward. The respondent had to be heard or given an opportunity to be heard. The court was satisfied that repeated notices, orders and attempts to communicate the hearing date provided that opportunity.
4. Relief. Having regard to the history of conduct, the court concluded that the mischief would continue unless an all proceedings order of indefinite duration was made. No lesser measure would be effective. The order sought by the Attorney-General was therefore made. Mr Justice Treacy agreed.

First-instance application. No appellate history is stated in the judgment.