Jonathan David Rowland v Kevin Gerald Stanford
| Jurisdiction | England & Wales |
| Judge | Mr Justice Adam Johnson |
| Judgment Date | 21 April 2021 |
| Neutral Citation | [2021] EWHC 988 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2020-001419 |
| Date | 21 April 2021 |
[2021] EWHC 988 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS & PROPERTY COURTS OF ENGLAND & WALES
BUSINESS LIST (ChD)
7 Rolls Building
Fetter Lane
London EC 4A 1NL
Mr Justice Adam Johnson
Case No: BL-2020-001419
Thomas Grant QC and Andrew McLeod (instructed by Forsters LLP) for the Claimants
The Defendant appeared in person (post-hearing submissions in writing by John McDonnell QC)
Hearing dates: 23 February 2021
Written submissions: 23, 24 and 26 February 2021; 1 and 8 March 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction & Background
This is the hearing of an application for Norwich Pharmacal relief against the Defendant, Mr Stanford.
There is a long and complex history, but for present purposes the background may be stated relatively briefly.
The Claimants, a father and son, are both businessmen. In 2008, in the wake of the Icelandic banking crisis which led to the collapse of the Kaupthing Group, the Second Claimant an made an investment that led to the formation of a private bank in Luxembourg, Banque Havilland SA, to which the non-distressed assets of Kaupthing Bank Luxembourg SA were transferred.
The Defendant, Mr Stanford, is also a businessman. He had substantial investments with Kaupthing entities prior to their collapse. For many years he has pursued allegations that improper use was made of his investments by Kaupthing in an effort to manage the crisis affecting the Kaupthing Group as it was developing. He has alleged there was also mismanagement of his assets amounting to fraud by Banque Havilland SA.
Mr Stanford was declared bankrupt on the petition of HMRC in February 2019 and his affairs were taken over by a Trustee in Bankruptcy. I was told that his Trustee eventually reached a settlement of pending claims arising out of Mr Stanford's allegations at some point in the Autumn of 2020, but I have not seen a copy of the settlement agreement and neither, as I understand it, has Mr Stanford.
For a number of years from about 2008 to 2013, a Mr Michael Wright, a former corporate solicitor, worked for the Claimants and (between about 2010 and 2013) shared an office in Monaco with the First Claimant, Jonathan Rowland. Mr Wright parted company with the Claimants, it seems in unhappy circumstances, in 2013, and subsequently commenced proceedings in the Commercial Court against Jonathan Rowland and his father, which eventually were unsuccessful: see the judgment of Christopher Butcher QC (as he then was) at [2017] EWHC 2478 (Comm), handed down on 9 October 2017.
In the course of those proceedings, it was disclosed that Mr Wright had access to an electronic file, referred to as “ the Archive”, containing what Mr Wright claimed was a backup copy of an email account used by Jonathan Rowland for a number of years up to June 2013. Mr Wright later claimed that the laptop storing the Archive had been lost, and he made an Affidavit in the Commercial Court action on 29 July 2016 in which among other things he said: “ I have not shown the Archive to anybody else or provided anybody else with access to it or with copies of documents derived from it.”
After the Commercial Court proceedings had concluded, the Claimants came to suspect that Mr Stanford had access to the Archive. That suspicion arose because of emails he sent in October and November 2017, one of which appeared to refer expressly to documents likely to have been within the Archive. Correspondence followed, initiated by the Claimants' solicitors Forsters, who sent a letter to Mr Stanford on 12 December 2017, asking for an explanation of where he had obtained the documents he had referred to, and for an undertaking that no further use would be made of them. The letter threatened an application for an injunction if the requested undertaking was not forthcoming.
In his response of 20 December 2017, Mr Stanford said that a package of hard copy documents had been left at his home by an anonymous individual. The references in the email he had sent were to materials in that package. In that same email Mr Stanford undertook not to use or disclose the documents further, although in a later email dated 29 December 2017 he said that he considered the papers included evidence of fraud and criminal activity, and further said that he could either deliver them to Forsters and then to the police, or hold onto them for an agreed interim period, it seems with a view to holding a without prejudice discussion.
Subsequently, a package of documents comprising about 500 pages of email correspondence was delivered up to Forsters. No further action was taken at that stage, however. Nonetheless, Mr Stanford's conviction in the idea that he had been the victim of a fraud remained undiminished, and he continued to investigate his concerns and press them in other ways.
About two and a half years later, in April 2020, the Claimants received from Mr Stanford a document headed “ Criminal Complaint”. It was a draft document, and as I understand it remains a draft. It makes allegations of criminal conduct against a number of individuals including the Claimants. The draft was sent by email to a number of recipients, including Lord Bridges at Farrer & Co, who Mr Stanford understood to be acting for the Lord Chamberlain.
In the draft Complaint, Mr Stanford gave a different account as to how he came into possession of the documents referenced in his emails of October and November 2017. He said as follows:
“In April 2015, I received a file of documents in the form of a hard drive (‘the Archive’) (Exhibit 15) from a former employee of the Rowland family who had become aware of the abuse of my assets. The Archive contained evidence to prove the criminal conduct of David and Jonathan Rowland against my assets after the launch of Banque Havilland which is reported in the chronology (Para. 19.4 to 20.5) and (Exhibit 16).”
Mr Stanford also indicated in the draft Complaint that he had provided materials from the Archive to the journalist, Isabel Oakeshott, who was writing an article for the Mail on Sunday.
I should pause at this point to say that I have not seen a copy of the Archive, but I am told it contains up to 30,000 emails generated over a decade or more. I am told the relevant account was used both for business related communications but also for the sending of private emails dealing with things such as medical matters. Jonathan Rowland's position is that it was a personal account and was confidential to him, and was not a Banque Havilland account. That is borne out by the domain name used, and as I understood it, was not seriously disputed by Mr Stanford.
The Present Proceedings
To return to the narrative, receipt of the draft Complaint prompted a pre-action letter from the Claimants, sent by Forsters on 26 June 2020. In that letter they asked for various items of information, including information as to how the Archive had come into Mr Stanford's possession. That letter referenced a possible claim for relief on Norwich Pharmacal grounds.
I need not recite the course of the proceedings, but I will mention four points by way of background.
First, Mr Stanford has maintained his allegations that the Claimants and others have engaged in criminal activity including fraud. There is no doubting the sense of conviction he feels in his position, and his sense that he has been the victim of a substantial wrong.
Second, as to use of the Archive, Mr Stanford has offered to provide it to the authorities in Monaco and Luxembourg, including to the Judge in Monaco who is conducting a criminal proceeding concerning the circumstances in which the Archive came to be taken in 2013. Mr Stanford's emails also make it clear that he provided a copy of the Archive to the Lord Chamberlain in May 2020.
Third, until shortly before the hearing of the application, Mr Stanford resisted the totality of the relief sought against him by the Claimants.
Fourth, in January 2021, Mr Stanford made what turned out to be an aborted application to Master Teverson for a direction that the present proceeding be continued as a Part 7 rather than a Part 8 Claim. The Master declined to make that order, which in the event was not pressed for by Mr Stanford's counsel at the time. The stance taken at that hearing however reflected a point running through Mr Stanford's submissions before me, namely that the Claimants should not be permitted to make use of the Norwich Pharmacal jurisdiction, and instead should be bringing a claim against Mr Stanford, or perhaps making an application for pre-action disclosure. The gist of Mr Stanford's point was that the Claimants should not be able to adopt a procedure which allows them to evade cross-examination and scrutiny in a Court. He suggested that the present procedure has that effect and allows the Claimants to hide behind their solicitors. In support of his argument he relied on the decision of Lightman J. in Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] 3 All ER 511, in which an application against a Norwich Pharmacal defendant was refused on the basis that there was an alternative remedy available, namely an application for pre-action disclosure against the prospective defendant, whose identity was known.
At the hearing before Master Teverson, these matters were left open for argument at a later hearing, but Mr Stanford's application before the Master was dismissed,...
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Invoking Norwich Pharmacal Relief Against The Less Than Innocent
...piece, Lauren Godfrey looks at Rowland & Anor v Stanford [2021] EWHC 988 (Ch). Mini Considering a Part 8 claim for Norwich Pharmacal relief, the Court decided that the jurisdiction was properly invoked despite the defendant arguing that pre-action disclosure was available against him. A def......
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Invoking Norwich Pharmacal Relief Against The Less Than Innocent
...piece, Lauren Godfrey looks at Rowland & Anor v Stanford [2021] EWHC 988 (Ch). Mini Considering a Part 8 claim for Norwich Pharmacal relief, the Court decided that the jurisdiction was properly invoked despite the defendant arguing that pre-action disclosure was available against him. A def......