CHAPTER 9 – BAD TO WORSE
Following an intervention by Sir John Jennings, Shell UK accepted at the same meeting at our solicitors, our proposal to refer the Nintendo dispute to mediation. Shell’s agreement to the mediation was subject to us entering into a confidentiality agreement, which was deliberately drafted to keep Shell shareholders in the dark (a Shell AGM was imminent).
We made a gesture of goodwill towards Shell by proposing that John Smeddle act as mediator, which he agreed to do. At that time, John Smeddle worked for Shell in Rotterdam. Being a man of high principles he made every possible attempt to achieve a satisfactory resolution. The fact that this never happened had nothing to do with him. Shell UK prolonged the outcome of the mediation until the Make Money promotion had ended and then notified us that they had no offer to make. This was after their lawyers had advised our solicitor Richard Woodman in writing that a settlement offer was imminent. Because Shell had acted in breach of the terms of the mediation, our solicitors notified them that the confidentiality deal was rendered null and void and we instituted legal proceedings against Shell in respect of the failed mediation.
In July 1994, Shell launched a motion picture themed promotion - “NOW SHOWING” that replicated our Hollywood Collection proposal (which Lazenby had retained under consideration). We issued a Writ against Shell on 30th September 1994 in respect of the “Now Showing” promotion.
Shell claimed that “Now Showing” was based on a proposal put forward by an agency called “Tequila”. However Shell did not run the Tequila promotion. It merged the Tequila idea with one put forward by Option One. The finished product happened to replicate our concept. As already pointed out, this was an amazing coincidence in view of the fact that to the best of our knowledge, no such scheme had ever been run before. Option One had already been lucky enough to be given our Make Money project by Andrew Lazenby.
Because we were not prepared to let Andrew misappropriate OUR ideas and advised Shell accordingly, we received numerous threats from Shell managers both verbally and in writing to cut us off from any further Shell business. We also received numerous letters from Shell’s lawyers threatening to seek injunctions to keep us quiet. Their actions demonstrated Shell’s ruthless use of its multinational financial might to stifle claims from small businesses.
Shell issued proceedings against Don Marketing for what is known as a “SECURITY FOR COSTS” Application. This is a major legal hurdle facing all small financially pressured companies in the UK who are suing a public company. Basically, if the application is successful, the small company has to pay sufficient funds into Court to pay the legal fees of the Defendant Company in case the small company cannot ultimately afford to do so if their action is unsuccessful. In other words, the small company has not only to find the funds to finance its own legal costs, but also those of the multinational that it is suing - so much for justice. It presented us with what was potentially an insurmountable barrier. We appeared to be fighting a losing battle.
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