CHAPTER 14 – MEDIATION (IN 1996)
(Modified 23 April 2018: Relevant Shell executives name changed to initials only "AJL")
In September 1996, the Nintendo and movie themed claims were put to mediation. The mediator was Mr Nicholas Pryor. Previously a barrister, he was now a practising solicitor and head of the legal department for a major London market reinsurance group. The pupil mediator was Ms Jane Andrewartha, a partner in Clyde & Co Solicitors.
In a written submission to the independent mediators, Shell conceded that, “DM had a perfectly valid claim” in respect of the Make Money concept.
At the commencement of the mediation, Shell Legal Director Richard Wiseman apologised again on behalf of Shell UK’s board of directors for the way Don Marketing had been treated. The apology was made in the presence of Richard Woodman of Royds Treadwell and another party to the mediation, Mr Roger Sotherton.
After the mediators had interviewed the respective witnesses at length, including Shell executive AJL, the senior mediator, Mr Nicholas Prior, informed John in the presence of Roger Sotherton and Richard Woodman, that he and his colleague had reached the conclusion that “Mr AJL had pissed on Don Marketing from a very great height” - a memorable phrase. They were aware of the complaints of a similar nature made against Mr AJL by other parties. They also had a copy of a Joint Opinion from John Baldwin QC and Dr Mary Vitoria QC, in respect of the Nintendo promotion, supporting our claims.
Nonetheless, the settlement negotiations were difficult and dragged on late into the evening. Richard Wiseman asked if we would welcome a written apology from Shell signed by Dr Fay. Roger said that the only offer in which John should be interested is one that involved pound notes. The mediators asked him to leave the room saying that his attitude was unhelpful and that it was up to John, not him, to negotiate the Don Marketing settlement with Shell. At one stage Dr Fay was pulled off of a dance floor at some social function to seek approval of an offer then on the table from Shell (which John rejected after speaking to me by telephone). However as a result of the mediation Shell did eventually agree to settle both claims for a total of £200,000 (about $300,000 US dollars) – rather better then the paltry £35,000 offered originally by Richard Wiseman. We reached a settlement with Roger as part of the overall deal. We also received the unsolicited letter of apology from Shell UK Limited.
The letter stated as follows: -
21st October 1996
Dear Mr Donovan
“I am pleased that our long running dispute has been satisfactorily resolved. It is unfortunate that some of our dealings with you appear not to have met the high standards we set ourselves and which our long relationship had led you to expect of us.
On reflection it seems that, had this aspect been more focused on than the strict legal issues, we might have been able to resolve our differences more quickly.
May I wish you and your business every success for the future.”
CE Fay
Chairman and Chief Executive
There was one last minute hitch. In early October 1996, my son and I travelled into London by train to sign the settlement documents. When we arrived at the offices of our solicitors we were informed by Richard Woodman that he had just received a revised copy of the settlement documents from Shell’s solicitors, which now included different terms to those agreed. We did not even read the revised documents and have never seen them to this day. We instructed Richard Woodman that we were prepared to sign the previously agreed documents or otherwise the settlement was off. John was subsequently contacted at home directly by Richard Wiseman who felt that what he had to say was sufficiently important to breach the rules applying to direct contact by a solicitor with a layperson represented by another solicitor. He had done so even though Richard Woodman had specifically advised him not to contact us direct. It was decided that both sides would sign up to the previously agreed settlement with minor changes, which were recorded in an exchange of letters by fax. Thus the settlement was finalised due to the initiative of Richard Wiseman.
John and his solicitors celebrated the much deserved victory at Wheelers Restaurant in Chancery Lane just across the road from our solicitor’s offices at Crane Court, Fleet Street, London. Richard Woodman was accompanied by his irreplaceable Secretary, Lynda Dalley, a thoroughly nice lady, and by Carl Vincent. The prospects of the next battle with Shell were discussed. It all depended on what Shell did with the multi-partner promotional concept which we had proposed. We had no further potential legal claim against Shell until such time as they actually launched a multi-partner loyalty scheme.
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