England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		14th July 2004

Wednesday, 14th July 2004
1. LORD JUSTICE KENNEDY: We have before us an application by Her Majesty's Attorney-General for an all proceedings order under section 42 of the Supreme Court Act of 1981.
2. The application is based upon the activities of Mr Burgess between 1995 and the present time. On 15th February 2001 an interim order was made by a constitution of this court consisting of Latham LJ and Potts J. The order was interim because at that time it was not clear what was the state of health of Mr Burgess, and indeed he has often referred to his ill-health as a reason not to proceed or be proceeded against. The matter came before a constitution of the court consisting of myself and Mackay J on 24th March of this year and on that occasion we ordered that:

"... unless by 4th May 2004 the Respondent has either (a) submitted medical evidence as to his continuing unfitness to litigate, which is regarded as acceptable by the applicant and the court, or (b) agreed to submit to a medical examination as to his fitness by a doctor nominated by the applicant and at the applicant's expense, the case be listed for final hearing on 8th June 2004, or as soon thereafter as listing considerations might allow."

3. We further ordered that that order be served on Michael Fisher Solicitors, as service by alternative means.
4. The relevant statutory provision which we have to consider in section 42 of the Supreme Court Act 1981 reads as follows:

"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 instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons, or made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another, or 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 proceeding order or an all proceedings order."

5. In AG v Barker [2001] 1 FLR 259 Lord Bingham CJ said:

"The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process."

6. The standard of proof is the civil one, having due regard to the seriousness of the issues involved; it is not the criminal standard (see AG v Hayward, 20th November 1995 in The Times).
7. In order to decide whether the statutory requirements are made out, we have to turn to the history of litigation so far as Mr Burgess is concerned. It begins as long ago as 1995. On 10th June 1995 there was allegedly an assault by a man named Andrew Savva on Mr Burgess which formed the subject matter of a subsequent action. For present purposes we will refer to the actions by numbers, and that was action number 5. It was a claim for damages brought in the Central London County Court in 1998. However, returning to 1995, Mr Burgess was prosecuted for the assault, which the Crown said was an assault by him on Mr Savva, and he was convicted. On 3rd June 1997 his appeal was allowed.
8. Moving to December 1995, we come now to action number 1. On 21st December 1995 in the Haringey Magistrates' Court Mr Burgess instituted a private prosecution of Mr Savva, alleging that he was guilty of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act. In those proceedings he asserted that he had been assaulted by Mr Savva. Those proceedings were discharged by the court on 14th August 1998 due to the unreliable nature of the evidence presented by Mr Burgess.
9. Moving on to 1997, on 3rd June 1997 when allowing the appeal of Mr Burgess against conviction for assault in relation to the incident on 10th June 1995, HHJ Finney said that Mr Burgess was:

"self-centred, self-satisfied and self-important, with a singular incapacity for understanding other people."

10. Turning to 1998, on 14th August 1998 in Haringey Magistrates' Court the court discharged Mr Burgess's private prosecution against Mr Savva, the one which had begun in December 1995. Mr Burgess complained of the behaviour of the court to the Lord Chancellor's Department and it was found that his complaints were not substantiated.
11. On 19th August 1998 in the same court, Haringey Magistrates' Court, Mr Burgess instituted a private prosecution of seven police officers (this is action number 2) alleging assault contrary to section 47 of the Offences Against the Person Act. The allegation was later changed to one of common assault, and also an assault contrary to section 39 of the Criminal Justice Act 1988. There were several adjournments in relation to those proceedings because allegedly Mr Burgess was unwell. Eventually, those summons were withdrawn on 30th April 1999.
12. On 7th September 1998, and we come now to the third action, again in Haringey Magistrates' Court, the Local Authority wanted to inspect premises at 7 Muswell Avenue. Mr Burgess failed to provide access and the Local Authority then served formal housing notices on Mr Burgess and other tenants of those premises. Mr Burgess, together with other tenants, then brought a private prosecution against two Local Authority employees, a Mr Henry and a Mr Davis, under the Protection From Harassment Act 1997.
13. We now come to action number 4. On 7th October 1998 at Feltham Magistrates' Court Mr Burgess brought a private prosecution against Mr Murphy, Mr Goodwin and Mr Blake, respectively the landlord, an employee of the landlord's company and a property manager, those proceedings being brought under the Protection From Eviction Act 1977. Essentially, the complaint was one of failure to repair 7 Muswell Avenue. On 16th September 1998 in Haringey Magistrates' Court, the court ruled in relation to action number 3 that Mr Burgess could only prosecute his own case and not the case of other tenants who lived in the house with him, and fixed a hearing date for 23rd November 1998 at Brent Magistrates' Court to deal with issues such as disclosure. No prosecutor attended on that date and the matter was adjourned to 8th December 1998 with a direction that Mr Burgess should attend.
14. We come now to action number 6. On 17th November 1998 at Haringey Magistrates' Court Mr Burgess commenced proceedings again, for the second time, against Mr Henry and Mr Davis and an employee of the Environmental Health Department. Those proceedings were under the Protection From Eviction Act 1977. On 8th December 1998 in the third set of proceedings there was the fifth adjournment of those set of proceedings because Mr Burgess had not attended. Mr Burgess was said to be unwell and the matter was adjourned to 19th January 1999.
15. On 19th January 1999 the third set of proceedings and the sixth set of proceedings were considered together. No prosecutor attended in the third set of proceedings, there had been no compliance with the duty of primary disclosure and the defence applied for the matter to be struck out; a course which was followed by the court. So far as the sixth set of proceedings were concerned, those which had begun on 17th November 1998, they too were dismissed for want of prosecution.
16. On 9th March 1999 in Barnet County Court, Mr Burgess sued the Mayor of Haringey and the Metropolitan Police Commissioner, alleging a whole variety of torts. On 30th April 1999 Mr Burgess withdrew his summons in the second action, which he had begun on 19th August 1998 against the police officers. On 15th July 1999 in the Barnet County Court the judge struck out some of Mr Burgess's allegations against the Mayor and the Metropolitan Police Commissioner and dismissed his application to strike out their defence. On 27th July 1999 more of the allegations made by Mr Burgess were struck out by the judge.
17. On 1st October 1999 Mr Burgess began the ninth set of proceedings in the High Court, against counsel and solicitors who had acted against him in the fourth set of proceedings, alleging libel and slander. The fourth set of proceedings were the proceedings which had taken place in the Feltham Magistrates' Court. That action against counsel and solicitors was struck out on 4th October 2000 as an abuse of the process of the court.
18. On 4th October 1999 in R v Ealing Magistrates' Court ex parte Burgess, Mr Burgess complained of the magistrate's refusal to rehear a case which had been heard in his absence. This was the seventh set of proceedings undertaken by Mr Burgess. He was alleged to have harassed an employee of a local post office between September 1997 and June 1998. He made repeated requests for adjournments, with notes produced from a Dr Friedman in support of those requests, but the court found that when he was said to be unfit he was in fact at other courts elsewhere.
19. On 29th October 1999 in the Central London County Court HHJ Crawford Lindsay QC dismissed the sixth action, in which Mr Burgess claimed that he had been assaulted by Mr Savva in June 1995. The judge said he was "wholly unpersuaded" by Mr Burgess's evidence. He adopted in terms what had been said by HHJ Finney on 3rd June 1997 and said that Mr Burgess had "an obsession with litigation."
20. On 3rd November 1999 Tuckey LJ gave judgment in Mr Burgess's seventh set of proceedings in R v Ealing Justices ex parte Burgess. He said that the magistrates were plainly entitled to act as they did.
21. On 29th November 1999 Mr Burgess, in proceedings which he had commenced on 7th October 1998, brought a private prosecution against his landlord and others, alleging failure to repair and those proceedings then came on for trial. They in fact only made any progress because the defendants wanted to clear their names. The proceedings were adjourned after Mr Burgess had given his evidence because he said he was unfit to proceed and he produced a hospital note. He was given six days to produce proper medical evidence, but he failed to do so. The summons which was issued was then dismissed. The stipendiary magistrate found "not a shred of evidence to justify the proceedings."
22. On 14th December 1999 Mr Burgess sought to challenge the decision of the Chairman of the Magistrates for failing to recuse himself when the court was considering his alleged failure to answer to bail. Tucker J refused permission for judicial review in relation to that decision on 21st December 1999. He said Mr Burgess was obsessed and the court was right to consider the need for psychiatric reports.
23. On 21st December 1999 Mr Burgess sought judicial review of the orders made by Feltham Magistrates' Court on 22nd and 29th November 1999, in particular in relation to action number 4. Turner L, on 18th April 2000, treated that application for judicial review as abandoned.
24. On 9th February 2000 Mr Burgess applied for judicial review of the decision of Brentford Magistrates' Court on 20th November 1999 to dismiss his summons alleging assault in the case of Burgess v Goodwin. On 18th April 2000 Turner J treated that application also as abandoned. On that date, 18th April 2000, when Turner J had before him the application for judicial review in actions numbers 11 and 12, which he treated as abandoned, he ordered that Mr Burgess pay the costs.
25. On 4th May 2000 in the Barnet County Court Mr Burgess sued the London Borough of Haringey and the Rent Officers, alleging fraud, deceit and discrimination. On 18th May 2000 Mr Burgess applied for judicial review of the decision of Hounslow Magistrates' Court not to order a retrial in his fourth action. The application was listed for 17th November 2000, but was then taken out of the list.
26. On 20th June 2000 Mr Burgess applied to set aside the decision of 18th April, or sought to renew his application. The matter was relisted for 2nd March 2001.
27. On 27th June 2000 Mr Burgess applied for judicial review of the decision of Highgate Magistrates' Court on 5th April 2000 and the decision of the Crown Prosecution Service to prosecute him. The application was listed on 17th November 2000, but was then vacated.
28. On 29th June 2000 Mr Burgess sued the Director of Public Prosecutions and Howard Taylor, claiming malicious prosecution and harassment. Mr Burgess had been convicted in August 1999 of harassing Mr Taylor, who had given evidence against him.
29. On 30th June 2000 the London Borough of Haringey applied, in action number 13, for the action to be struck out, pursuant to part 3.4 of the Civil Procedure Rules. That matter was listed for hearing on 15th December 2000 and then relisted for 15th February 2001.
30. On 11th August 2000 Mr Burgess sought permission for judicial review of the decisions of Wood Green Crown Court of 11th May and 12th May 2000, revoking Legal Aid and refusing further adjournments because of Mr Burgess's alleged unfitness to continue.
31. On 18th September 2000 the present proceedings were served on Mr Burgess personally. He claimed that the documents relating to the proceedings were found in the street and he returned them to the office on that basis.
32. On 16th October 2000 the Treasury Solicitor applied for a civil proceedings order and for an order pursuant to part 3.4, that the particulars of claim and claim in action number 16 be struck out. That matter again was adjourned to February 2001, but in January 2001 it was stayed until further order.
33. Thus we come to the stage when Latham LJ and Potts J on 15th February 2001 made the order to which we have previously referred. The matter was adjourned at that stage because it appeared that there might be some psychological illness, and the interim order was made. The expectation of the court was that there would be medical evidence of Mr Burgess's fitness or otherwise to litigate and to take steps in litigation.
34. In 2001 there was some correspondence between Miss Pullen, who apparently was the partner of Mr Burgess, and the court. In March 2003 the Treasury Solicitor sought to have the matter relisted for directions and was then advised to take out an application to that end in support. That step was not taken at that stage. In June 2003, following a letter written by Mr Burgess to Sedley LJ, he was advised by the Administrative Court Office that if he wanted to issue proceedings he should apply under section 42.
35. On 8th September 2003 on the instructions of Master Venne, the Administrative Court Office wrote to Mr Burgess with a view to listing this matter for directions or final disposal. On 1st October 2003 Mr Burgess's solicitors, who were acting for him in criminal matters only, said that he was under medical advice that he should not indulge in litigation and would provide a medical report if required.
36. On 16th October 2003 the Treasury Solicitor asked for a medical report, but none was forthcoming. The nature of the criminal proceedings which were then in being at Wood Green Crown Court were that Mr Burgess was alleged to have put persons in fear by harassment on two occasions, to have committed two offences of common assault and to have committed three offences of damaging property. The course of the present proceedings was then adjourned for a time.
37. On 13th February 2004 the criminal matters were listed at the Crown Court for a ten day trial in April 2004. That trial was held and in due course Mr Burgess was convicted and subjected to a community penalty. However, meanwhile on 25th February 2004 the Treasury Solicitor again asked for the section 42 proceedings to be listed for directions. On 17th March 2004 Mr Dingwall of the Treasury Solicitor's office filed a statement which is before us, together with the other material which is exhibited thereto.
38. Mr Burgess's criminal solicitors on 23rd March 2004 said that there would be two medical reports and asked for the matter to be adjourned until after the Crown Court trial. That brings us to 24th March 2004 when the constitution of the Divisional Court, consisting of myself and Mackay J, made the order to which we have already referred. That order was sealed and sent out on 29th March. The Treasury Solicitor was then told by Michael Fisher, the solicitor acting for Mr Burgess in the criminal matters, that he had only received the order on 12th May 2004, but no explanation was ever forthcoming as to why there had been that delay.
39. On 5th April 2004 Mr Dingwall had a telephone conversation with Michael Fisher. Mr Fisher enquired as to what type of medical evidence would satisfy the terms of the order. Mr Dingwall indicated that the claimant would expect a detailed diagnosis of what was wrong with Mr Burgess, together with a prognosis relating to his condition, preferably from a consultant. Mr Fisher stated that he did not know how Mr Burgess would pay for that, but they would struggle along.
40. On 10th May 2004 Mr Dingwall wrote to the court, requesting that these proceedings be listed for a final hearing in the absence of the provision of medical evidence by Mr Burgess or for consent to a medical examination within the time specified in the unless order. On 13th May 2004 Mr Dingwall received a faxed letter from Michael Fisher Solicitors, stating that a medical report would be forthcoming. That letter further stated that Mr Burgess first became aware of the unless order made by the court during a home visit by his solicitors on 12th May. That is what prompted the enquiry by the Treasury Solicitor as to how that had come about.
41. On 28th May 2004 Mr Dingwall wrote again to Michael Fisher, enclosing a copy of the notification from the court regarding the latest hearing date in the proceedings on 3rd June 2004, and received a reply to that letter from Michael Fisher saying that they were not in funds and the firm could no longer be of any assistance. Nevertheless, the Treasury Solicitor, in an attempt to make contact with Mr Burgess, sent communications to that address so that they could be forwarded to Mr Burgess. The Treasury Solicitor also made contact with Wood Green Crown Court and was thus in a position to discover that Mr Burgess was present at court when he was convicted on 21st April 2004 and when he was sentenced on 14th May 2004.
42. When this matter came before this constitution of the court earlier this month it was not entirely clear to us that adequate steps had been taken to ensure that Mr Burgess was aware of the hearing date. We therefore ordered that notification be given to him of this afternoon's hearing date in three separate ways and indicated that if our order was complied with, as it had been, we should be satisfied that he had had adequate notice of today's hearing date. Essentially, what we ordered was that the advice be sent to his last known address, and that it also be sent to Michael Fisher to be forwarded to Mr Burgess, and finally, that it be sent to Wood Green Crown Court so that it could be forwarded by the Crown Court to any address that it might have. There is before us a reply from Michael Fisher, dated 9th July 2004, which indicates that they do not act for Mr Burgess in this matter, but the letter goes on to say this:

"However, we have sent a copy of your letter to the address that we have for Mr Burgess."

43. In those circumstances, we are satisfied that every step has been taken to forward the letter on to Mr Burgess.
44. As to the material which has been placed before us, that material proves beyond a peradventure that Mr Burgess has habitually and persistently and without any reasonable grounds instituted vexatious criminal proceedings in a number of courts against different persons and made vexatious applications in those proceedings in those courts. Furthermore, that he has instituted vexatious prosecutions against a number of different persons in a number of different courts. We are satisfied that he has been given an opportunity of being heard. We are further satisfied that unless this court makes an all proceedings order of an indefinite duration, the mischief which arises as a result of Mr Burgess's conduct will continue and that no lesser measure would be effective to stem it. In those circumstances, we make the order sought by Her Majesty's Attorney-General.
45. MR JUSTICE TREACY: I agree.