IN THE HIGH COURT OF JUSTICE CO/913/90

(DIVISIONAL COURT)

Royal Courts of Justice

Strand

London WC2

Tuesday, 15^th July 1997

B e f o r e:

LORD JUSTICE ROSE

-and-

MR JUSTICE JOWITT

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REGINA

-v-

HER MAJESTY’S ATTORNEY GENERAL

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(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-831 3183/0171-404 1400

Fax No: 0171-404 1424

Official Shorthand Writers to the Court)

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MR P RINEHART (aka Rowe) appeared in person,

MR S KOVATS (instructed by Treasury Solicitors, London SW1H

9JS) appeared on behalf of the First Respondents.

J U D G M E N T

(As approved by the Court)

Tuesday, 15^th July 1997

JUDGMENT

LORD JUSTICE ROSE: The Attorney-General applies for a vexatious litigant order under section 42 of the Supreme Court Act 1981 in relation to civil proceedings. Such an order was initially sought by Notice of Motion dated 22^nd May 1990. The matter at that time came before the Divisional Court in which Watkins LJ presided on 20th January of 1992.

There was then before the court an affidavit sworn by Virginia Brodrick on 27th April 1990. At that time the court ordered that the Attorney-General’s application be adjourned and added that if there was the slightest manifestation of legal activity from the respondent the Attorney-General should have leave to apply to restore the application. It would appear that that order was made on the basis that the court was at that time satisfied that there was a prima facie case that the applicant was vexatious, but, by the time the matter came before the court, as is apparent from the dates to which we have already referred, there had been a period approaching two years when the respondent had not been engaged in litigation.

After that order was made in January 1992 the respondent did not then engage in litigation. But on 13^th December 1995 his mother Joan Rosemary Rowe died. Since that time there has been what the respondent himself has described as “open warfare” within the family in relation to his mother’s estate. He, the respondent, claims to be in possession of his mother’s will and a codicil to it, which he says are entirely valid documents. The validity of the will certainly, and it may be the codicil too, are the subject of fierce argument within the family and to the nature of that I shall come at a later stage.

Because of the dispute within the family in relation to the respondent’s mother’s estate there has been a good deal of recent litigation by or on behalf of the respondent. The consequence of that has been that an application was made to the Divisional Court consisting of Henry LJ and Gage J who, on the 29^th June 1997, granted the Attorney-General’s application for the restoration of the application for a vexatious litigant order in relation to the respondent. On the basis of certain undertakings then given by the respondent the Court also made an interlocutory order, pending today’s hearing, that the respondent should not engage in litigation.

On 4^th July before Kay J the respondent applied for and was granted leave to seek orders for the attendance of a number of witnesses at today’s hearing. I shall return to that application in due course. The approach to an application under section 42 is that set out by Lord Parker CJ in Re Vernazza [1959] 1 WLR 622, at 624, that is to say the Court has to look at the whole history of the matter and the issue is not determined simply by the nature of the pleadings. The court has to look at all the circumstances in order to decide whether there is manifested vexatiousness to a civil standard of proof but having due regard to the seriousness of the issue at stake.

The submission on behalf of the Attorney-General is that the recent litigation about the respondent’s estate demonstrates vexatiousness on the respondent’s part and comes in addition to the earlier vexatiousness which gave rise to the notice of motion in 1990. So far as the recent litigation is concerned, it is to be noted that some of it has been taken in the name of a friend of the respondent, Trevor Dolling and a company called Rimflame UK Limited in which the respondent is a shareholder.

The contention on behalf of the Attorney-General is that insofar as litigation has been conducted by Mr Dolling and/or Rimflame UK Limited that has merely been a means for the respondent to litigate other than in his own name.

The first of the actions to which the affidavit of Mr Bennett, on behalf of the Attorney-General, draws attention is that, in Chicester County Court on 8^th March 1996, when Mr Dolling issued proceedings against the respondent’s father as administrator of his mother’s estate and reimbursement was sought for expenses, said to relate to the administration of the estate by Mr Dolling in his attempts to uphold the validity of the mother’s will.

The respondent swore an affidavit in support of that litigation and indeed appeared together with Mr Dolling when an application was made on 22^nd May 1996 to a District Judge that the claim should be struck out. Indeed on that occasion it was the respondent rather than Mr Dolling who addressed the District Judge. He ordered that the claim should be struck out. Mr Rowe, in his submission to this court, said that that was because the proceedings had been taken in the wrong court and the District Judge advised him, Mr Rowe, to see other solicitors.

That action can be conveniently referred to as number 1. Number 2 was an action by Rimflame UK Limited against Maximo Enterprises Limited and trustee of the estate of Mrs Rowe (deceased). Those were proceedings instituted in the High Court. Maximo Enterprises Limited was a company which appears to have been set up to hold the assets of the deceased’s estate. The purpose of those proceedings was to achieve a consent order which would have the effect of freezing, for want of a better term, the assets of the deceased’s estate.

The District Judge refused his consent to an order which had ostensibly been agreed between the parties and struck out the claim as an abuse of the process of the court on the basis that it had been made spuriously and for a collateral purpose. An order was made for Mr Dolling and the respondent to be jointly and personally liable for Mr Rowe Senior’s costs.

The third action was in the Queen’s Bench Division. Lloyds Bank Limited brought proceedings against Maximo Enterprises and others. This was an interpleader action brought by the bank in relation to moneys held to Maximo Enterprises’ credit at the Bank’s Bognor Regis branch. Again the litigation had its origins in the dispute between the respondent and his father about Mrs Rowe’s estate and it appears that Mr Rowe sought to intervene in the proceedings on the basis that he had become the assignee of a debt from one of Rimflame Limited’s activities. In relation to the consent order which was sought to be achieved by action number 2, it appears that the collateral purpose to which the District Judge had referred when striking it out was the achievement of the right to intervene in the proceedings. On 4^th February 1997 Master Tennant stayed all the claims in action number 3 save as to costs. Mr Rowe and Mr Dolling both addressed the court on that occasion.

Action number 4 was a Queen’s Bench action between the respondent and Lloyds Bank. He, the respondent, sued as a shareholder of Maximo for alleged breach of contract and negligence. The submission of the Attorney-General is that Mr Rowe could have had no rights himself which he could properly enforce by that action, whatever right of action Maximo Enterprises might have had.

The 5^th action was another Queen’s Bench action between the respondent and his younger brother Nicholas and Mr Rowe Senior. This was a claim for damages for defamation. When the claim and particulars of it are examined it is the Attorney-General’s submission that they are vague and unparticularised and it is not surprising that the defendants have sought to strike it out. That application for strike-out was due to be heard on the third of this month but the hearing date was vacated pending today’s proceedings.

It is to be observed that, on 6^th June 1997 in a letter to Mr TD Rowe, care of his solicitors, the respondent said this:

“Be left in no doubt that I will pursue both all the defendants in this matter to their graves as I gave written warning prior to both prior to their both and agreed actions. The fact that it is against my so-called my father, your client, will make not the slightest difference to my claim for the maximum damages, be so advised.”

Action number 6, again in the Queen’s Bench Division, was brought by Mr Dolling against Mrs Janet Rowe and Miss Margaret Patrick. The proceedings were started in April 1997. Dolling claims damages for defamation against Mrs Janet Rowe who, as I understand it, is the same as Gianina Rowe; she is, in any event, the wife of the respondent’s younger brother Nicholas, and Margaret Patrick is the respondent’s maternal aunt. This claim, it is said, has the same defects in relation to lack of particularisation as action number 5.

The respondent wishes to be joined in action number 6 and indeed wishes to consolidate actions 5 and 6, as appears from his application which is to be found at tab 7 of bundle 1 of the applicant’s documents. Again an application in relation to that action on 3rd July, including the application for consolidation, was adjourned pending today’s proceedings.

There is a seventh action to which it is necessary to refer. These are proceedings brought in the Chancery Division by the respondent’s father on 30th May 1997. By those proceedings the father seeks a grant of letters of administration to the estate of his late wife. The purpose of that litigation appears to be to resolve the dispute within the family as to the validity or otherwise of Mrs Rowe’s will and consequentially as to how her estate is to be administered, distributed and otherwise dealt with.

The respondent’s response to that action was an indication of an intention to apply to strike it out. The claim was made by the respondent by summons on 5^th June of this year that the Chancery action is a scandalous action and is frivolous.

There is referred to in Mr Bennett’s second affidavit before the court dated 14^th July 1997 an eighth action in the Chancery Division between Mr Dolling and the estate of Mrs Rowe, Mr Dolling being said to act on behalf of the estate. Those proceedings are brought, amongst others, against Mr Rowe Senior, his solicitors, Rimflame UK Limited, Maximo Enterprises Limited and other members of the family.

Attention is drawn by Mr Kovats, appearing on behalf of the Attorney-General, to some two eccentricities of spelling, in particular the word “certain” spelt with an I instead of an E and the word “moneys” spelt capital “M-O-I-N-E-S”, which spellings are to be found in documents emanating, on their face, both from the respondent and from Mr Dolling.

So far as this eighth action is concerned it too appears to traverse some (at least) of the ground covered by action number 7 in seeking to resolve the family dispute about Mr Rowe’s estate. It is an action which, it is submitted on behalf of the Attorney-General, is intended to bleed the estate dry. The solicitors are inappropriate defendants and the fact that it is brought in the name of someone other than the respondent merely demonstrates the deceptions which the respondent is prepared to practise. The Attorney-General refers, in support of that submission, to a number of documents, first a letter dated 21^st January 1997 written by the respondent to his younger brother Nicholas and Nicholas’ wife in which he says among other things:

“It is my intention and that of Jonathan [who is the middle brother] That both of you will be given a lesson in life ... and it is my intention to bankrupt you both.”

In a letter dated 5^th February 1997 addressed to the respondent’s father’s solicitors and to solicitors acting for his brother Nicholas, the respondent said this:

“I therefore have decided to ensure that no moneys are left in the estate for any party to benefit there from and, in fact, commence a burn up of these funds to ensure this happens so no party inclusive of her husband who wishes to overturn her wishes or Mr and Mrs NH Rowe have benefited any monies or any other party.”

Those observations by the respondent are set in the context of the pre-1990 litigation to which the Attorney-General also refers. It is sufficient to summarise that litigation by saying that nine separate actions were brought against a man called Adrian Jones who had been at one time the respondent’s business partner, three were brought against Martin Roberts and Ashley Wright who were friends of Jones and all of those actions were either ultimately unsuccessful or not proceeded with.

The Attorney-General draws attention to letters written to him by Mr Jones on 11^th March 1989 and by Mr Wright and Mr Roberts on 2^nd October 1989 describing the manner in which they said that they had been harassed by litigation on the part of the respondent which had caused them the considerable distress which is set out in those letters. The Attorney-General also refers to a letter dated 28^th January 1990 to the High Court District Registry in Croydon purporting to be signed by Paul Rinehart and referring to funds said to be available to Captain Rowe. I should interpose that the respondent tells us that he is master mariner. The purpose of the Attorney-General’s reference to that letter is to demonstrate that Mr Rowe was there passing himself off as Mr Rinehart. That was one of the deceptions which he practised because the respondent is both Rowe and Rinehart.

The Attorney-General also refers to a judgment of His Honour Judge Inskip QC given at Portsmouth County Court on 20th April 1990. The judge recites certain evidence given by the respondent, namely that, in the three years or so before that date, the respondent had attended 425 court hearings, had appeared before 15 judges and had set 12 judgments aside; and he anticipated being in court everyday between April and June. The respondent in his submissions to this court said that the judge did not on that occasion, refer to some 113 of his actions as having been won.

Judge Inskip also made findings on that occasion derived from the respondent admitting that he had been untruthful in evidence to the registrar and in reference to Mr Rinehart, (whom at one stage in evidence he claimed to be a very good friend) that it was clear that the respondent was prepared to lie.

In the light of all these matters, the submission is made by Mr Kovats is that this is an appropriate case for a section 42 civil proceedings order to be made, because, when the pattern of the litigation over the years is looked at, the only conceivable conclusion is that the respondent has instituted vexatious civil proceedings.

Mr Rowe started his submissions to this court by seeking leave to call oral evidence from Mr Dolling, his younger brother, Jonathan, Mr Penning, an accountant, and his father. He made that application on the basis that, as he, the respondent, is a sick man, chemically poisoned, it would be impossible properly to present his case to this court save through the mouths of others. As the court indicated to Mr Rowe in refusing that application it is very rare indeed for the Divisional Court to hear oral evidence. It only does so in exceptional cases and even then only in circumstances where affidavits have been sworn by the particular witnesses: see the observations of Lord Goddard CJ in R -v- Stokesly Yorkshire Justices ex parte Bartram, [1956] 1 WLR 254. It did not appear to the court that there were exceptional circumstances justifying the court in giving leave for the respondent to call oral evidence and accordingly that application was refused.

It is to be noted that Mr Rowe has brought with him to court apparatus designed to administer oxygen. Fortunately, although he addressed the court for approximately an hour and a half without pause and without apparent signs of breathlessness, it was not necessary to have recourse to that equipment.

He drew the court’s attention to his own diary of events conflicting in a number of respects with affidavits sworn at one time or another by members of his family. He told us that he had Power of Attorney for his mother since 1986. That Mr Dolling was considered part of the family and had, in that context, come to be named by the respondent’s mother as executor of her estate in the will which she made in 1995 and which, as I have said, is at the heart of the family dispute.

Mr Rowe told us that he had himself witnessed it without realising that it was a will but believing that it was a lifeboat covenant being made by his mother. He told us that he owns one share in Rimflame, that Mr Dolling has a few shares and that the majority of the shares are owned by Mr Dolling’s family. He told us that his mother distrusted his youngest brother Nicholas’ new wife Gianina. He said that, because he had been at court in relation to a pol tax matter, he was delayed from attending his mother’s bedside as she was dying.

The will which she made is at Volume 3 Tab 2 of the red binders and the codicil at Volume 2 Tab 9. The signatures, contrary to the claims made by other members of his family, are genuine. The will is a valid document as is the codicil and, insofar as it is suggested that his mother was not capable in the period before her death of managing her own affairs, on the contrary she was, he says, entirely so capable.

He gave the court a detailed account of family activities since his mother’s death. He drew attention to certain matters demonstrating his father’s knowledge of the will.

He, the respondent, was extremely ill during last year and at that time received threatening letters from solicitors acting on behalf of his father and his father subsequently dismissed those solicitors. The respondent’s prime concern and that of his brother Jonathan has been that their father should be properly looked after. Mr Dolling has tried his best to sort out the respondent’s mother’s affairs and to that end, amongst other things, produced the administration document which is in Volume 3 Tab 2 of the red binders. Mr Penning is a good friend who was respected by the respondent’s parents and it was quite untrue to suggest that he, Mr Penning, did the respondent’s bidding. Indeed, if anything, rather the contrary.

He told us that all the telephone calls made to his house are taped and there had been considerable confusion arising because his father was saying one thing and his father’s solicitors were from time to time saying something completely different. The consequence is, as I mentioned at an earlier stage that, the respondent says the family is at war, with Mr Dolling in the middle trying to get on with probate.

The respondent’s father is, sadly, brain damaged by reason of a succession of strokes and the respondent has not spoken to him since the 6^th June when he, the father, was taken to a nursing home where it is not possible for the respondent to have access to him.

Mr Rowe told us about a number of extraordinary general meetings which were held in relation to the company affairs of Maximo. He told us that, so far as action number 3 was concerned, Rimflame was owed £56,000, whatever Master Tennant may have thought to the contrary. He said that a pack of lies had been told against Mr Dolling. He told us that his mother always gave the same amount of money to each of her three sons.

So far as actions 2, 3 and 4 are concerned he, the respondent had decided that the bank were in league with his father and had failed to behave in accordance with the lawful instructions given to it. The purpose of this litigation was to seek to ensure that money from the mother’s estate went into court where it could be safely preserved until such time as the estate was legally distributed.

One of the firms of solicitors acting, called Warn and Company, were incompetent and when dismissed by the company’s shareholders while the respondent himself was in intensive care and it was at about that time that the consent order, not approved by the District Judge, was drawn up.

In January of 1997 Mr Dolling had issued a notice to everyone not to go ahead with inappropriate proceedings in relation to the estate, but that warning had been ignored. The proceedings for defamation had been taken by himself and by Mr Dolling because of unjustified complaints made to the police by the respondent’s father and the respondent’s brother. Margaret Patrick, he said, has a score to settle.

He told us that all the actions prior to the defamation actions were taken on counsel’s advice. So far as the defamation actions are concerned, he told us that, if he and Mr Dolling are not prosecuted, presumably in relation to forgery, then they would themselves take action for defamation. Because of the false allegations made against them, Mr Dolling has lost his job and he, the respondent, is under strain. The accusations of fraud made against him he does not need and he is not going to tolerate. He told us that, although he could not disclose his rank or where it had happened, he had been to countries where law and order had broken down. He was well aware of the difficulties in relation to libel actions, but he said this:

“The last thing I want to do is take action against a sick old man, my father, but why would he want to take action against me? He sexually abused me from the age of 8 so I fell into the hands of a paedophile ring. He and I therefore have scores to settle.”

Mr Rowe suggested that, to make an order of the kind sought by the Attorney-General, would be to shoot a dying man. How else, he said, could his mother’s interests have been protected, save by what he has done. He has spent £7,500 looking after his mother’s interests. He was, he says, wrong in relation to some of these actions but nothing was done which was an abuse of process. He may be vexed and annoyed but he is not vexatious. The people behind the action brought by his father in relation to the estate are his youngest brother Nicholas and his wife Gianina and nobody else.

Taking all these competing submissions into account and reminding myself of the comparatively heavy burden which lies upon the Attorney-General in relation to an application of this kind, I am satisfied that the history of the litigation to which I have sought summarily to refer demonstrates that the respondent has habitually, persistently and without any reasonable ground instituted vexatious civil proceedings in the High Court and in an inferior court. For my part, I would make the order which the Attorney-General seeks.

MR JUSTICE JOWITT: I agree and I would add only one cautionary piece of advice: if Mr Dolling or any other friend of the respondent should be minded hereafter to begin proceedings in relation to the late Mrs Rowe’s estate, her widower or children or Maximo Enterprises he should think carefully before he does so. If he knowingly lends himself as nominal Plaintiff to proceedings in which in truth he is acting as agent for the respondent he may risk a finding that he is assisting a breach of the order made today and so is in contempt of court.

MR KOVATS: My Lord, just two short points: firstly, your Lordship referred to the letter of 28^th January 1990 written by Mr Rinehart to the court. My Lord, due to lack of clarity on my part I did not make it clear that this is not a case of Mr Rinehart or Mr Rowe passing himself off as Mr Rinehart they are, in fact, the same person. The passing off was pretending to be two different people and arising out of that I would ask that when the order is drawn up in this case it does refer on its face to the fact that Mr Rowe is also as known as Mr Rinehart.

MR JUSTICE JOWITT: Yes, the application has been so listed, and the order will certainly reflect the matter.

MR KOVATS: The other thing is to ask for the applicant’s costs of this matter.

MR JUSTICE JOWITT: Mr Rowe, the Attorney-General asks for his costs. Normally the person who wins gets an order for costs. Is there anything you want to say about that?

MR RINEHART: Existing on severe disabled allowance - no.

MR JUSTICE JOWITT: Whether he gets any joy from it is a different matter.

MR RINEHART: I do not say anything against that.

MR JUSTICE JOWITT: Very well. The Attorney-General will have an order for cost. Thank you.