Royal Dutch Shell Group .com

Affidavit

 

I, Alfred Ernest Donovan of 847a Second Avenue (166b), New York, New York 10017 USA, (my US mail address) MAKE OATH and say as follows: -

 

1.       I have had a multi-million pounds business relationship with the Royal Dutch Shell Group on an International basis stretching back over 40 years. I will be 87 years old on 22 April 2004. I am a UK Citizen.

 

2.     I was in the British Regular Army for 12 years and on active service as a Non Commissioned Officer in the Burma Campaign during the Second World War. I am a holder of the Burma Star and three other medals. I was invalidated out of the Army in 1945 and have received a War Disability Pension since then. Before I started a business career, I worked for 14 years in the UK Civil Service.

 

3.     “Don Marketing”, the trading name of a company I co-founded with my only son, John Alfred Donovan (hereinafter referred to as “my son”) supplied specialist marketing advice to the Royal Dutch Shell Group of companies including Shell UK, Shell Canada, Shell New Zealand, Irish Shell, and Shell Singapore. We created many multi-million pound national promotions for Shell, including for example the award winning Shell “Make Money” game in 1984. At the turn of the Century our Shell Make Money game was acknowledged in a UK marketing profession poll as being the most successful sales promotion of the 20th Century.

 

4.     I am a long-term shareholder in The “Shell” Transport And Trading Company Plc.

 

5.     I am aware that the US Securities And Exchange Commission, the Financial Services Authority in the UK, the Autoriteit Financiele Markten in Holland and other authorities, including the US Justice Department, are probing the circumstances surrounding the announcement in January 2004 by the Royal Dutch Shell Group of an apparent 20% shortfall in previously announced reserves of oil and gas.
 

6.     I am also aware of the further substantial shortfalls in reserves announced on 18 March 2004 by Mr Malcolm Brinded OBE, Shell’s newly appointed Chief Executive of Exploration and Production (and a Group Managing Director of the Royal Dutch Shell Group).

 

7.     Extensive documentary evidence in my possession does not directly relate to the Shell oil and gas reserves debacle reported in the news media since January 2004. It does however directly involve senior Shell senior management figures named in recent class action law suits brought against the Royal Dutch Shell Group in relation to the oil and gas reserves debacle and prior examples of the same type of misconduct alleged against them in that matter. In other words similar fact evidence involving deceit and cover-up.

 

8.     The individuals include the current Vive-Chairman of the Committee of Managing Directors of the Royal Dutch Shell Group, Mr Malcolm Brinded, who is also Chief Executive Officer of Shell Gas & Power and Shell Exploration & Production; former Group Chairman and current Director of Shell Transport And Trading Company Plc, Sir Mark Moody-Stuart; former Group Chairman, Sir Philip Watts (who resigned in March 2004); Mr Maarten van den Bergh, currently a director of Royal Dutch Petroleum Company and formally a Group Managing Director of Royal Dutch Shell Group (and President of the Royal Dutch Petroleum Company); and Mr Steven L Miller, formally a Group Managing Director of the Royal Dutch/Shell Group.

 

9.     The events to which I testify in this Affidavit took place from 1994 up to 2003. They expose a huge credibility gap between the pledges of transparency, integrity and honesty in all of its dealings given by successive senior management figures at the Royal Dutch Shell Group in Shell’s “Statement of General Principles”, as opposed to the way the Group actually operates.

 

10.  Regretfully we found it necessary to sue Shell UK Limited in the UK High Court on a number of occasions from 1994 onwards in respect of promotional concepts put to Shell under terms of strictest confidence: namely a rerun of Shell “Make Money”; a Shell Nintendo themed instant win game; a “Hollywood Collection/Now Showing” promotion, and, most recently, Shell “SMART”, a multibrand loyalty card scheme. On 11 April 1995, I personally issued a High Court Writ for libel against Shell UK.  
 

11.   Solicitors Mackrell Turner Garrett represented Shell in respect of the first four claims – Make Money, Nintendo, Now Showing, and my libel action.  DJ Freeman (now Kendall Freeman) acted for Shell in the subsequent SMART litigation. Royds Treadwell (now Royds RDW) acted for Don Marketing, my son and me in all the earlier claims, and subsequently for my son alone in the SMART litigation.

 

12.  With regards to my libel action against Shell, I withdrew the action in July 1995 in return for a consideration from Shell of £125,000 – see the “Funding Deed” terms (later in this Affidavit). Shell settled out of court for £60,000 in respect of Shell “Make Money”; £100,000 plus costs for the Nintendo game, and £100,000 plus costs in respect of “Now Showing”. In respect of the SMART litigation Shell paid my sons legal costs. My son also received a cash sum. The terms on which my son settled the SMART action were different to that conveyed in a so called “joint” press release issued by Shell claiming that the action had ended in a “stalemate”. It was not a “win” but neither was it a “stalemate”.

 

13.  In respect of the Nintendo and “Now Showing” settlements, we also received an unsolicited unreserved letter of apology from Shell U.K. Chairman and Chief Executive Officer, Dr Fay, for the way we had been treated. Details are supplied later herein. His letter of 21 October 1996 was consistent with an apology made previously to my son on 14 June 1996 by Shell Legal Director Richard Wiseman on behalf of the Board of Directors of Shell U.K. Limited.

 

14.  Throughout the long years of litigation Shell repeatedly locked us into confidentiality agreements designed to keep important information from reaching Shell shareholders and other parties.

 

15.  For example, to obtain Shell’s acceptance to our proposal on one occasion to put the Nintendo dispute to mediation, we had to agree not to raise any questions or points at the Shell Transport Annual General Meeting being held the following day 19 May 1994. We agreed to the gagging terms because we were under threat in a letter from Mackrell Turner Garrett dated 27 April 1994 to make the Nintendo litigation “drawn out and difficult” – a daunting threat for a small company taking on a multi-national goliath.

 

16.  In fact my family and I endured an avalanche of threats over the years from Royal Dutch Shell Group Chairman Mark Moody-Stuart downwards. A relevant quote from his letter dated 9 April 1998 is given at a later stage in this Affidavit.

 

17.  Shell and DJ Freeman also admitted using undercover agents, one of whom, Mr Christopher Phillips, using false credentials, visited our offices on a clandestine mission which included illegally checking private mail. Unfortunately for Shell, he was caught red-handed. Written admissions by Shell Legal Director Richard Wiseman and Colin Joseph, the then Senior Partner of DJ Freeman, concerning the “cloak and dagger” activity are detailed later in this Affidavit.

 

18.     The following are extracts from a letter from me dated 19 October 1998 to Mr Colin Joseph of DJ Freeman: “Your undercover operative gave a false alibi for his visit to DM’s offices and in so doing, acted under false pretences on behalf of your firm and your client, Shell UK Limited. Despite the sinister nature of the events that took place, you remained silent about your association with the undercover investigator and only admitted the truth after action taken by DM’s Solicitors forced you to come clean. Instead of apologising, you had the effrontery to send a letter to my son making it clear that other individuals had been involved in making enquiries about us. Clearly a statement that was designed to intimidate.

 

19.  As the litigation saga was reaching a climax, with the SMART case finally coming to Trial, some particularly nasty threats were made against us and our witnesses from a claimed “Shell insider”. Even worse, a series of burglaries were carried out at the residences of our solicitor, a key witness, and at our own home. In each incident brief cases were forced open; documents were examined and possibly tampered with. This included a briefing paper issued to Mary Vitoria QC – a privileged document that DJ Freeman had just previously failed to obtain after making an application to the Courts (which was dismissed with costs) but which DJ Freeman had vowed to obtain. 

 

20.The Police carried out an investigation and interviewed individuals at Shell. Mr Wiseman felt it necessary to given us a written assurance in regards to our safety and that of our witnesses.  Details of the relevant matters and of Mr Wiseman’s letter are given at a later stage in my Affidavit.

 

21.  In connection with the sinister undercover activity, I noted a front page story published in The Sunday Times on 17 June 2001, headlined: “MI6 ‘firm’ spied on green groups”. In the article, Shell admitted hiring a private intelligence firm, Hakluyt, based in Central London with close links to MI6, which carried out undercover missions on Shell’s behalf. Manfred Schlickenrieder, a serving member of the German Secret Service (BND), was given his first Shell related mission in 1996 and continued working for Hakluyt until 1999. Operating under a code name, he interviewed friends of Ken Saro-Wiwa, the Nobel Prize nominee, who was hanged by the military regime in Nigeria after leading a campaign against oil exploration. Schlickenrieder also successfully infiltrated Greenpeace and informed on other people and organisations legally campaigning against Shell. I cannot help but wonder if Schlickenrieder was also involved in our case, given the intimidating admission/threat made by Mr Joseph of “other individuals”. If not Schlickenrieder, who was he talking about?

 

22. D J Freeman later represented Harrods owner, Mr Mohamed Fayed, in a libel action brought against him by Mr Neil Hamilton, the former MP. Mr Hamilton lost the case and then (unsuccessfully) appealed the decision after it was discovered that documents had been stolen from his premises prior to the case coming to Court. The documents had been passed to Mohamed Fayed who used them to his advantage during the trial.  

 

23.To return to our experiences of Shell’s duplicitous conduct, at a later stage herein there is also (a) specific evidence of how Shell deliberately obstructed an investigation by the Advertising Standards Authority and (b) how Mark Moody-Stuart and Miss Jyoti Munsiff in April 1998 used their high positions to stop damaging information from reaching Shell shareholders.
 

24. In regarding to the later issue, I am in possession of documentary evidence indicating a corporate culture at Shell of deliberately keeping shareholders in the dark about important matters. In my experience this policy has been followed by senior management and officers of the Royal Dutch Group for several years, including Sir Mark Moody-Stuart, Sir Philip Watts, Mr Malcolm Brinded, Mr Maarten van den Bergh, Miss Jyoti Munsiff (Company Secretary of Shell Transport And Trading Company p.l.c.), Shell Legal Director, Mr Richard Wiseman, and former Group Managing Directors, Mr Steven L Miller and Mr Cor Herkstroter.

 

25. On 18 January 1999, I wrote to the then Shell U.K. Limited Chairman Mr Malcolm Brinded. I advised him of the background to the SMART litigation including our objections to the “sleazy undercover investigators” used against us.

 

26. I mentioned in my letter to Mr Brinded an extraordinary interview at Shell Mex House between an investigative journalist for the Guardian newspaper, Mr Simon Rines, and Shell officials including Richard Wiseman, at which such matters were discussed in a session tape recorded by both sides (details at a later stage herein).

 

27.In his response letter to me at the Shell Shareholders Organisation dated 27 January 1999, Mr Brinded confirmed that he was personally “familiar with the litigation relating to SMART and the background to this matter.” He mentioned the correspondence on the subject with Mark Moody-Stuart.

 

28. For an unknown reason Mr Brinded replied in his then alternative guise as Managing Director of SHELL U.K. Exploration and Production on appropriate letter heading. Since his involvement in Shell Exploration and Production stretches back to 1993, I am puzzled by his current portrayal in the media as a new broom, starting with a clean slate in Shell Exploration & Production, having just been appointed its CEO. Any impression that Mr Brinded is untainted by past events at “Shell Expro” would therefore seem questionable at best and at worst, materially misleading.

 

29.On 27 January 1999, I hand-delivered at the Hague HQ of Shell a letter to Mr Maarten van den Bergh, the then Vice-Chairman of the Committee of Managing Directors of the Royal Dutch/Shell Group and President of Royal Dutch Petroleum Company. It brought to his personal attention the sleazy undercover activities against my son and I admitted in writing by DJ Freeman and Shell UK Legal Director Richard Wiseman. I mentioned a “whole catalogue of cover-up, deception, intimidation, and other misdeeds by Shell”. I also mentioned a letter I intended to send to Her Majesty Queen Beatrix of the Netherlands.  Mr van den Bergh replied on 29 January 1999 thanking me for my letter. Mr van den Bergh remains a director of the Royal Dutch Petroleum Company. He is also Chairman of Lloyds TSB Bank plc.

 

30. On 1st March 1999, I sent the relevant letter to Queen Beatrix in my capacity as Chairman of the Shell Shareholders Organisation. In the letter I described the secrecy policy as “a culture of deception and cover-up deeply ingrained at the highest levels of Shell”. I also mentioned the possible merger of Royal Dutch and Shell Transport into one company, a move now belatedly likely to be adopted. In my experience the Royal Dutch Shell Group has used the archaic multi-company structure as a “smoke and mirrors” device to confuse and conceal – the ultimate “Shell Game”.

 

31.   I wrote to Queen Beatrix, because her family is one of the biggest single shareholders in Royal Dutch. I note from an article published in the Sunday Times on 21 March 2004, entitled "Auditor Refuses to Sign Shell Accounts" that it is likely "Shell’s management will be further embarrassed by the revelation that the Dutch royal family has lost nearly £250m through the collapse in the company’s share price". No wonder that Queen Beatrix, according to an article published in The Daily Telegraph on 22 March 2004, is “furious” at what has happened. All I can say is that I did warn Her Majesty about the shortcomings of the senior management of the Royal Dutch Shell Group.

 

32.    I will now deal with events as they unfolded in chronological order.

 

33. On 4 June 1992 we put a written proposal to newly appointed Shell National Promotions Manager Mr Andrew Lazenby in strictest confidence for a Nintendo themed promotional game. We had first obtained approval from Bandai UK Limited (Nintendo’s then UK arm). We later put forward a “Hollywood Collection” promotion to Mr Lazenby on the same confidential basis. We kept in contact with Mr Lazenby who advised that the consumer appeal of the concepts would be researched. On 22 February 1993 we received a “holding” fax from Mr Lazenby saying: “Thanks John. I'll be back in touch when we've made any further progress. Cheers. Andrew”. Mr Lazenby subsequently developed and launched in the UK strikingly similar concepts without our knowledge or consent.

 

34. Mr Lazenby sent us a letter dated 4th August 1992 concerning a multibrand game concept we had put to him in strictest confidence called “MegaMatch” and developed further with his encouragement. To our astonishment Mr Lazenby causally mentioned that he was "speaking directly to a variety of suitable partners and when it looks as though we will be able to get together I will get back to you to develop MegaMatch further". Since he had not sought our permission, we viewed his conduct in going behind our backs as a clear breach of confidence. However, as he was still considering other DM proposals, we did not make waves although deeply concerned by his unprofessional conduct.

 

35. My son advised Mr Lazenby on or about 24 June 1993, the day the offending Shell Nintendo game was launched, that the game pieces were flawed and it was possible for anyone with access to stocks of the game pieces to shine a torch through the scratch off latex material, thereby enabling the identification and removal of winning game pieces. Although Mr Lazenby confirmed that this was in fact the case (and we later discovered that he already knew about the serious flaw), Shell continued to run the defective Nintendo promotion for its full term in the knowledge that motorists could be cheated out of the prizes on offer.

 

36.On the 24 June 1993, Mr Lazenby conveniently claimed that he had “thrown away” original proposal documents supplied to him by my son in strictest confidence. Mr Lazenby claimed this was normal practice when moving office. There is a written transcript of the relevant conversation. 

 

37.We wrote to Mr David Varney, the then Managing Director of Shell U.K. Limited seeking his intervention in the Nintendo dispute. In his response letter dated l2 July 1993 Mr Varney indicated that he had personally carried out an investigation and informed us that Mr Lazenby had no involvement in the Shell Nintendo promotion.

 

38.We subsequently discovered that in fact Mr Lazenby had played a key role in the Shell Nintendo promotion and that Mr Varney had not personally carried out any investigation. His letter had been drafted by Mr Lazenby’s line Manager, Mr David Watson with the assistance of Mr Lazenby.

 

39. We subsequently pointed out these disquieting facts to other senior management at the Royal Dutch Shell Group. The reputation of a Shell Managing Director had been put at risk in a deliberate effort to deceive us.

 

40.While we were still in the process of trying to resolve matters amicably in respect of the Nintendo promotion, Mr Lazenby raised the subject of the proposal we had put to him in April 1992, for Shell to re-run the spectacularly successful “Make Money” game.

 

41.  Put on guard by Mr Lazenby’s probing questions about our rights to the Make Money concept, we made enquiries and discovered to our consternation that Shell was secretly printing a Make Money promotion at a North Wales print plant. This was despite an evasive denial by Mr Lazenby that the game was currently being produced.

 

42.An evasive denial was also received from Senior Shell Legal Advisor Mr Ian Brown, who stated in a letter dated 29 March 1994 to Don Marketing’s solicitors, Royds Treadwell: “..please be advised that my Clients have no intention of launching a promotion which infringes any rights that your Clients may have.”  Because of the further denial, we double-checked our source, who once again confirmed that Shell was deceiving us. The Make Money promotion was being prepared and produced behind our backs even though we had already supplied Shell management with a copy of an original signed agreement on Shell letter heading in which Shell confirmed our joint rights to the Make Money concept devised by us.

 

43.    We later found in discovery documents supplied to us in respect of subsequent litigation that other Shell staff and management had raised the question of Don Marketing in relation to the 1994 Make Money game. On 15 September 1993, one of Lazenby’s colleagues, Mr Charlie Fox, sent a note to a senior Shell manager concerning “OPERATION CUPID” – the project code name for the planned Make Money game. Under “Key Action”, it stated “Finalise Don Marketing’s position”. On 22 September 1993, Mr Fox sent a note to Mr David Watson headed “CUPID AND DON MARKETING”. In addition to other considerations the note said: “Ask John Donovan whether he will consider working with Shell again in the future. If no, please put it in writing.  If yes, decide if we want to use him for cupid”.

 

44.    On 13 October 1993, David Watson wrote a note recording a conversation he had with a senior Royal Dutch Shell Manager, Mr John Smeddle, regarding the origin of the Make Money game.  Mr Smeddle, who knew my son fairly well advised: “Tell John what we intend to do for running Make Money i.e. whether he will run it i.e. security, distribution of vouchers”. An undated Shell document apparently originated towards the end of 1993 had a hand-written note by an unknown author (probably David Watson) saying: “But if Don Mktg suggested it, they may still have rts to it”.

 

45.However, no one ever asked us if we were willing to be involved. Instead my son was informed by Mr Lazenby that he, Mr Lazenby, would not believe further documentary evidence of Don Marketing rights to Make Money even if it was supplied to him. There is a transcript in existence of this extraordinary conversation. Instead Mr Lazenby preferred to deceive us and surreptitiously produced the multi-million pounds promotion behind our back using his favoured agency, Option One. This was an agency with whom we later discovered he had a personal relationship. Option One was on a later occasion miraculously awarded an important Shell SMART contract by him, although they were not one of the 35 companies which had tendered for it. Details are supplied later in my Affidavit.

 

46.On 6 April 1994 we served High Court proceedings against Shell U.K. Limited for breach of confidence and/or breach of contract in respect of joint rights to the Shell “Make Money” concept devised by Don Marketing. Having been caught red-handed, within a matter of days Shell settled out of court for a sum of £60,000.

 

47.In the course of the negotiations which led to Shell settling the “Make Money” High Court Action, Mackrell Turner Garrett threatened that unless we accepted the £60,000 then on offer, Shell would switch to an alternative concept already being produced. Ironically, we later discovered that this was a promotion called “Now Showing” which became the subject of a further claim for breach of confidence and/or breach of contract in respect of our “Hollywood Collection” concept, eventually again settled in our favour by Shell.  

 

48. We discovered when the surreptitiously produced “Make Money” game was launched that it was possible for anyone with access to stocks of the game pieces to easily identify and remove all of the winning game pieces. This obviously presented the prospect of a multi-million pounds public relations disaster for Shell if the media became aware of the serious flaw. We notified by fax the then Chairman of Shell Transport, Mr John Jennings of the major security problem.

 

49.At about this time, Royds Treadwell had put forward a proposal to Mackrell Turner Garrett that the Nintendo dispute be put to mediation. It was at this juncture that we first noticed a desire by Shell management and its lawyers to keep sensitive information from Shell shareholders. The following is a self-explanatory extract from a Mackrell Turner Garrett letter dated 18th May 1994 sent to Mr Richard Woodman at Royds Treadwell: -

 

“The conditions of our agreement to this form of mediation follow:

 

1. Your client will undertake (and you will undertake on behalf of your firm) to release no press release or information of any shape or form in relation to Make Money, Nintendo, or anything to do with our client’s relationship with your client (to include his belief that he has found a flaw in the Make Money system);

 

2. “Your client will not raise any questions, points etc., at tomorrow’s Shell AGM or any future meeting in connection with your client’s relationship with ours, the concept known as Make Money, the concept known as Nintendo, and any other dealings that you client and ours may have had (to include his suspected flaw in the Make Money game);

 

3. The terms of this Agreement (save that this is an open letter for Court purposes) be kept private and secret to the parties and their advisors, and obviously not disclosed to any other party. We would require, quite obviously, your undertaking and your client’s undertaking on this.”

 

50.The mediation duly took place with the much respected senior Royal Dutch Shell Manager, Mr John Smeddle, acting as mediator.

 

51.  We suggested Mr Smeddle because we wanted to demonstrate our goodwill towards Shell after enjoying a mutually successful business relationship for so many years.

 

52.As a result of the mediation, Mackrell Turner Garret promised in writing that a proposal which should resolve the Nintendo dispute “to everyone’s satisfaction” would soon be put to us. Encouraging messages continued until the Make Money promotion had ended. Mackrell Turner then sent a terse letter indicating that no settlement offer of the Nintendo dispute would be forthcoming.

 

53.To our amazement, on or about 11 July 1994, Shell launched the “Now Showing” promotion.

 

54. Consequently on 30 September 1994, we served High Court proceedings against Shell for breach of confidence and/or breach of contract in respect of the Nintendo themed game and the “Now Showing” promotion based on our “Hollywood Collection Proposal”. I regret to say that by this stage any remaining goodwill towards Shell had evaporated.

 

55.Because of the media interest generated by the legal proceedings, we were contacted by a number of Shell retailers and suppliers.  Some volunteered information about their experience of Shell's business practices. As a result of the interest, my son and I founded the “Shell Corporate Conscience Pressure Group” (the predecessor of the “Shell Shareholders Organisation”. The inspiration for the name of the original pressure group arose from an article in the September 1994 issue of the Shell "Chairman's Bulletin" sent to Shell shareholders, which claimed a culture of "corporate conscience" at Shell. Our membership soon included over 200 hundred Shell retailers, suppliers and shareholders.

 

56.The pressure group undertook a series of Shell retailer surveys and published the results in whole page adverts in the forecourt trade press. Over 1500 Shell stations participated in the surveys. 75% of Shell retailers who voted in our first survey decided that Shell UK was unethical, incompetent, and greedy. In a subsequent survey published in "Forecourt News", 91% of those Shell retailers who participated said that Shell management should resign. Responses to the surveys were opened in the presence of an independent solicitor, who supplied Affidavits attesting to the results.

 

57.On 3rd January 1995 I wrote to John Jennings, the Chairman of Shell Transport and Trading Co Plc in connection with litigation partly relating to the flawed Make Money game. We received a reply from the Company Secretary & Senior Legal Advisor of Shell Transport, Miss Jyoti Munsiff, in a letter dated 5th January 1995. She claimed that Mr Jennings had no involvement in the day-to-day management of Shell U.K. Limited and therefore no evidence to offer.

 

58.     My son and I subsequently had discussions with Sir John Jennings at the Shell Transport AGM on 18 May 1995 (he had by then been knighted). We discussed the Shell Corporate Conscience Pressure Group and the litigation. We got on well with him and from what he said it became clear that contrary to the impression conveyed in the letter from Miss Munsiff, Mr Jennings HAD personally intervened on our behalf with Shell U.K. Limited. It was his intervention which led to Shell agreeing to the mediation by John Smeddle in July 1994. He said that he had spoken to a number of people at Shell U.K. and they had all said that my son was a decent man. He could not understand why the “Don Marketing Saga” was still dragging on and on. He had first intervened in response to our letter in June 1993 and would “put his shoulder to the wheel again”. 

 

59.Our letter to Sir John dated 19th May 1995 confirmed what was stated during the AGM discussion. We were (and remain) grateful to Sir John but were also shocked that Miss Munsiff, the Company Secretary and Senior Legal Advisor/Official of The Shell Transport and Trading Company Plc had given us materially misleading information relating to on-going legal proceedings.

 

60.As a result of the further intervention by Sir John Jennings, my son was invited to meet at Shell-Mex House with Dr Chris Fay, the Chairman and Chief Executive Officer of Shell U.K. Limited.

 

61.  A bizarre offer was subsequently put to my son and me personally by Dr Fay, during a further meeting at Shell-Mex House held on 31 May 1995. He put it forward at the insistence of Sir John Jennings.
 

62. This was when we first became aware that although Shell U.K. Limited was supposed to be a separate autonomous company, in fact the most important decisions were taken and imposed by the Group Managing Directors of the Royal Dutch Shell Group, although supposedly according to Miss Jyoti Munsiff they had no legal involvement in the operational management of the company.

 

63. Dr Fay offered us “Money or Justice”. It had to be one or the other. We could not have both. He said there was “no smoke or mirrors” and “no hidden agenda”. When we opted for justice (the “money” offer was never discussed) Dr Fay said that Shell was willing to pay all of our legal costs to date in respect of the Nintendo and Now Showing High Court Actions. Furthermore, Shell would pay our future legal costs right up to a decision by a Trial Judge. Basically Shell would act like the Legal Aid Board and fund our litigation against Shell.

 

64.We were of course both staggered by the offer. The basic purpose of Shell was to stop the campaigning activities of the "Shell Corporate Conscience Pressure Group" founded by my son and me and to prevent any further damaging information about Shell senior management from reaching Shell shareholders and various other parties, including Pension Fund Investment companies.

 

65.The offer, which we accepted, was also conditional on me withdrawing my libel action against Shell commenced on 11 April 1995. Hence the offer also constituted a consideration (payment).

 

66.A subsequent agreement dated 6th July 1995 (which later became known as the "Funding Deed") imposed wide terms of secrecy in return for Shell paying in advance our legal fees for us to sue them. Shell was to release funds to pay our legal fees as our case against them moved forward towards Trial. Our lawyers had never heard of any such previous arrangement. Indeed it appears to be the first time in the history of commercial litigation involving a public company that such an arrangement has been made.

 

67.The litigation funding offer was put forward by Shell U.K. Limited on the basis of creating a level playing field between “David and Goliath”. However, the process turned out to be impractical because the opponent lawyers, Mr Wiseman of Shell and the Mackrell Turner Garrett solicitor appointed by him, Mr Nigel Rowley, controlled the release of the staged payments to Royds Treadwell. This enabled them to manipulate, intimidate and restrain our prosecution of our claims. They later both admitted to being dead set against the Funding Deed from the outset as was also Dr Fay according to Mr Wiseman.

 

68. In fact during a meeting held at Shell-Mex House on 14 June 1996 attended by my son and his solicitor, Richard Woodman of Royds Treadwell, Shell Legal Director, Richard Wiseman described the Funding Deed as being “bananas”. At this meeting Mr Wiseman put forward a proposal for the Nintendo and Hollywood claims to be put to mediation. This way forward was duly agreed and CEDR – the “Centre for Dispute Resolution”, was appointed to carry out the mediation.

 

69.During the same meeting, Mr Wiseman apologised on behalf of the Board of Directors of Shell U.K. Limited for the way DM had been treated. Senior Shell Legal Advisor, Mr Ian Brown, admitted that we had had a valid claim in respect of the Make Money action. Mr Wiseman said that these matters were being decided at a very high level.  Dr Fay was reporting to a Group Managing Director of Royal Dutch Shell, presumably Sir John Jennings. He said that Mr Moody-Stuart, another Group Managing Director of Royal Dutch Shell, was also “in the loop”. There is a written note of the discussions.

 

70. A written admission of wrongdoing by Shell in respect of the Make Money promotion was also made in Shell’s submission to the CEDR mediators who, in September 1996, assisted in the resolution of the Nintendo and Hollywood/Now Showing claims against Shell.

 

71.  The mediators studied the evidence and interviewed witnesses including Andrew Lazenby. The senior mediator, Mr Nicholas Pryor, memorably commented in the presence of witnesses and Mr Richard Woodman of Royds Treadwell, that he and his colleague, Ms Jane Andrewartha, had concluded that Andrew Lazenby had “pissed on Don Marketing from a very great height”.

 

72.As a result of the mediation Shell settled each of the two claims out of court for a sum of £100,000 plus legal costs (a total of £200,000 plus costs). In other words, as previously indicated, £100,000 for the Nintendo game and £100,000 for the “Now Showing” promotion. Large sums of money, but the litigation process had taken two years and had all but halted our company operations

 

73.Under the terms of the July 1995 Funding Deed which was signed on Shell’s behalf by the then Shell U.K. Limited Managing Director, Mr David Varney, we were instructed in writing by Mackrell Turner Garrett that we were not to provide material information being sought from us by the UK Advertising Standards Authority.

 

74.This was in relation to an official investigation then being carried out by the Authority into the aforementioned flawed multi-million pounds “Make Money” game conducted by Shell in 1994. In other words, Shell deliberately obstructed an official ASA investigation.
 

75. In this connection, the following are extracts from (a) a letter dated 24 August 1995 which Royds Treadwell sent on our behalf to Mackrell Turner Garrett and (b) the Mackrell Turner Garrett reply letter dated 31 August 1995.

 

“Our Clients have received a letter dated 18th August 1995 from the Advertising Standards Authority together with a revised draft report, of which your clients have probably already received a copy.”

 

“Our Clients would like to provide further important confidential information to the ASA regarding the accuracy of the details in the draft report. However, unless we hear from you to the contrary, we will assume that your Clients wishes regarding further contact with the ASA remains as expressed in your letter of 7th August.

 

The relevant extract from the Mackrell Turner Garrett response letter:

 

“Thank you for your two letters of the 24th August. As far as the ASA are concerned, we confirm we have no wish for Mr Donovan to write to the ASA.”

 

76.The “confidential” information was in relation to our demonstration on 19 May 1994 to Shell managers and lawyers in the presence of our solicitor, days after the launch of the 1994 Make Money game, concerning a potentially fatal security flaw in the game. We conclusively proved that it was possible for dishonest staff with access to stocks of the game pieces to extract the winning game pieces before they could be given to the people they were intended for – drivers on Shell forecourts.

 

77. On 24 May 1994 we offered in writing to show Shell management precisely how we had managed to easily identify the winning pieces.
 

78.    On 6th June 1994, Royds Treadwell received a letter from Mackrell Turner Garrett containing the following response: "Our clients have decided that they do not wish to take the demonstration point in relation to the "Make Money" concept any further. Your client’s kind offer was very much appreciated but the reality of the situation is that there is no advantage to our clients by knowing. So could you please pass to you clients our appreciation."  

 

79.Shell subsequently continued with the Make Money promotion for its full term even though they were aware at the highest level of management that it was seriously flawed. Because of the confidentiality agreement, we could not make the matter public.

 

80.Apart from monies received in settlement of the Nintendo and “Now Showing” High Court Actions, we also received an unsolicited letter of apology dated 21 October 1996 from the then Chairman and Chief Executive of Shell U.K. Limited, Dr Chris Fay. His letter was in line with the verbal apology from Richard Wiseman on 14 June 1996 on behalf of the board of Shell UK Directors.

 

81.    Dr Fay’s letter contained the following admission: “It was unfortunate that some of our dealings with you appear not to have met the high standards we set ourselves and which our long relationship has led you to expect of us”. This was in stark contrast to the comments made in an extraordinarily poisonous press release issued by Shell on 17 March 1995 in respect of the very same High Court Actions. The following are extracts: “Shell U.K. Limited is defending legal actions which allege that Shell UK wrongfully used two forecourt promotions – ‘Nintendo’ and ‘Now Showing’ – developed by Don Marketing without its consent. The allegation is untrue. Don Marketing has no case and the legal actions are being strenuously defended. Shell believes these actions are an attempt to sully Shell’s reputation with sensationalist allegations, in the hope that the company may be coerced into settling false claims.”

 

82.It is of course impossible to reconcile the total denial of any possible wrongdoing by Shell coupled with malicious accusations of fraudulent claims being brought against them, with the subsequent substantial settlements and the unsolicited apology from a Shell Chairman for the way we had been treated.

 

83. As Shell subsequently made exactly the same false accusations in respect of the subsequent “SMART” litigation launched by my son against Shell on 9th April 1998, it suggested that the earlier apologies were perhaps disingenuous.

 

84. In or about June 1996 Shell launched a promotion called Shell SMART which was strikingly similar to a loyalty card multibrand proposal we had put to Shell and ultimately to Mr Lazenby in strictest confidence. An effort was made through the respective solicitors, Royds Treadwell and DJ Freeman to resolve the matter amicably. With this objective Shell/DJ Freeman voluntarily supplied a report and some associated documents. However, on 9 April 1998, my son found it necessary to issue High Court proceedings against Shell U.K. Limited in respect of Shell SMART.

 

85. We had been anxious for Shell Transport Directors and Shell shareholders to be made aware of evidence which had been revealed in the information supplied to us. However Shell U.K. insisted that the terms of the July 1995 Funding Deed prohibited such disclosure even though we had no inkling of the SMART scheme when the Deed was signed and the Deed did not contain a condition prohibiting any further claims.

 

86. In a carefully drafted letter dated 6 April 1998 sent on behalf of Mark Moody-Stuart and copied to him and Richard Wiseman, Miss Jyoti Munsiff, the Company Secretary of The “Shell” Transport and Trading Company p.l.c. warned us in relation to the Funding Deed that: -

 

 …“having reviewed with Richard Wiseman your letter and the earlier agreements Shell U.K. Limited entered into with you, we believe publication to the shareholders or Shell Transport directors of the material covered by the July 1995 Deed is a breach of the confidentiality provisions of that Deed”. However, Shell U.K. have agreed not to take the point insofar as circulation to Shell Transport’s Director’s is concerned.”

 

87. In other words we were told on behalf of Mark Moody-Stuart that the highly embarrassing and possibly incriminating terms of the Funding Deed must be kept from Shell shareholders. Was it legal/proper for Shell directors to enter into a contract to pay the legal fees for a third party company to sue Shell for damages?

 

88. Mark Moody-Stuart mentioned the above letter from Miss Munsiff in his letter to us dated 9 April 1998 and reiterated that we had his permission to “bring the current dispute to the attention of my fellow directors of Shell Transport.” We duly supplied a detailed dossier to the then directors of Shell Transport, including Lord Oxburgh, the current non-Executive Chairman of Shell Transport. The dossier was also circulated to every director of Shell UK Limited and a number of Group Managing Directors including Moody-Stuart, Steven L Miller and Cor Herkstroter.

 

89.Mr Moody-Stuart made no mention in his letter of our request to supply the same information to our fellow shareholders. He did however issue a threat on behalf of Shell U.K. He said as follows: “How you conduct your campaign is naturally your prerogative, however I am sure you appreciate that Shell UK Ltd, like any company, will be obliged to respond appropriately in the light of your actions.” This response further undermined the claim by Jyoti Munsiff that the Chairman of Shell Transport had no involvement in the day-to-day operational management of Shell U.K. Limited.
 

90. The following is an extract from a reply letter to Mark Moody-Stuart dated 14 April 1998 in which my son stated as follows:

 

“I note that you have read the letter from Miss Munsiff. As a Shell shareholder (and founder of the Shell Shareholders Organisation) I am staggered at the response. We now have permission to circulate the relevant information to your fellow directors. This is despite the concerted efforts made by Shell’s lawyers (over a period of several months) initially to stop us providing you on a formal basis with information which you already had, and subsequently, to prevent the information being disclosed to your colleagues. Yet you are not prepared for the same information to be supplied, even on a confidential basis, to the people who actually own the company - your shareholders. Your decision to keep company members in the dark speaks absolute volumes. So much for the core principle of “openness”. When it comes to the crunch, covering-up a catalogue of misdeeds by Shell managers, despite incontrovertible evidence of flagrant breaches of the principles of honesty and integrity, apparently takes priority.”  

 

No response was forthcoming.

 

91.  In May 1998, Mr Colin Joseph of DJ Freeman asked my son to substantiate a comment made in a letter from my son which had just been published in “Marketing Week” magazine, indicating that “Shell UK and its lawyers have bombarded my company and my family with threats over the years (verbally and in writing).”  In a 7 page faxed letter dated 25 May 1998 my son listed, in date order, all of the threats. Unsurprisingly no further comment on the subject was forthcoming from Shell or DJ Freeman.

 

92.Bearing in mind the pledges of transparency, honest and integrity in Shell’s Statement of General Business Principles, we were in fact amazed and horrified by the tactics used by Shell management during the course of the various litigation.
 

93.Also in May 1998 an American gentleman purporting to be a reporter working on a story for “*** *******” newspaper, Mr ****** *****, travelled to the UK from **** and interviewed a number of our key witnesses. We gave him access to key documents. He was introduced to us after first contacting Mr Richard Woodman at Royds Treadwell. We later discovered from *** ******, the Editorial Manager of *** ******** newspaper, that Mr ***** was working under false pretences – no one at their ***** office at that time even knew his name. *** ******* was shocked when she heard that he was using her newspaper as a cover. She consulted her lawyers. The Guardian newspaper investigated Mr ***** and advised us that in their opinion he was a “spook” – their precise term. Based on what I now know about Mr *****, I would not be at all surprised if he is a member of the intelligence community. He has the background, the qualifications and the connections. 

 

    (*Webmasters note: We did hear from the relevant gentleman above on 7 July 2004. He accepts that his credentials do point to him being an intelligence agent but denies that this is in fact the case. Four different individuals all gained the same impression from this gentleman about his credentials, which subsequently turned out to be a misrepresentation. The alternative conclusion is that all four individuals, including a solicitor, misunderstood what they were told by Mr *****, which seems extremely unlikely. In any event, it has been deemed appropriate for security reasons to delete his name and other information which might allow him or his family to be identified)

 

94.  Shell admitted in writing during the SMART litigation that D J Freeman employed undercover operatives, one of whom, Mr Christopher Phillips of “Cofton Consultants”, was caught in the act of illegally checking private mail at our then Suffolk offices. As previously indicated he supplied false credentials and a false cover story in an attempt to explain his presence in Bury St Edmunds. After being cornered following enquiries by Royds Treadwell, DJ Freeman admitted in a faxed letter dated 19 June 1998, its association with Mr Phillips. Shell Legal Director Richard Wiseman stated in a letter to us dated 9 July 1998: “The activities of Mr Phillips have, of course, been admitted.”  

 

95.An explanation previously offered by DJ Freeman for the blatant deception and trickery had been exposed as patently false. DJ Freeman declined to provide a copy of their brief to “Mr Phillips”.

 

96.A series of burglaries was carried out at about this time at the residences of a number of people involved with us in the then pending SMART Trial, including the Royds Treadwell solicitor, Mr Richard Woodman.
 

97. Documentary evidence belonging to us and a key witness was examined and possibly tampered with. We later realised that some original documents had vanished. As previously indicated, this included a brief issued to Mary Vitoria QC – a document that DJ Freeman had just previously failed to obtain after making an application to the Courts (which was dismissed with costs) but which DJ Freeman had vowed to obtain.  Our bank statements had also been examined.

 

98. By co-incidence or otherwise we shortly thereafter received a threatening telephone call from an anonymous caller claiming to be acting on behalf of Shell. Threats were made against my son and his family (including me) and against witnesses supporting his claim against Shell. The caller revealed Shell’s secret plans to go on the offensive against us and he gave details which only a Shell insider could have had. Actions which the caller said Shell was in the process of taking were, as he correctly forecast, subsequently carried out by Shell. He not only disclosed that Shell was about to bring a counterclaim against us, he even mentioned the grounds on which it was subsequently brought. Beyond any doubt this was an insider intimately involved in the litigation.

 

99. Shell Legal Director Richard Wiseman evidently concluded that this was the case, as he launched an internal investigation at Shell-Mex House and personally interviewed Mr Andrew Lazenby. The accuracy of the information the caller disclosed was clearly designed to prove his credibility and the potency of his threats.

 

100.   Mr Simon Rines, an investigative freelance reporter working on a story for The Guardian tracked down the London call box from which the threatening call was made. He checked CCT video footage at the location but could not identify the caller. British Telecom Investigations Unit and the Police also investigated without any success.
 

101. In fact the Police investigated the threats and the burglaries. We also briefed them on the undercover activity. Shell Legal Director Richard Wiseman confirmed that the Police had carried out enquiries at Shell-Mex House. He also deemed it appropriate to give us an unsolicited written assurance on behalf of Shell; Mr Wiseman stated in his letter to us dated 9 July 1998 (in which he denied any Shell involvement in any intimidation): “Neither you, your family, nor any potential witness, has any cause for physical fear as a result of your prosecuting this case with all the vigour we have come to expect.”

 

102.   On 10 September 1998, Mr Rines interviewed at Shell-Mex House Mr Colin Joseph, the Senior Partner of DJ Freeman, Mr Richard Wiseman, and a lady from Shell’s press office. Both sides tape recorded the interview.

 

103. On 14 September 1998 we faxed a letter to Mark Moody-Stuart, the then Group Chairman of Royal Dutch Shell concerning the interview. Mr Joseph replied by fax the same day on behalf of Mr Moody-Stuart admitting that during the course of the interview, “Mr Simon Rines was shown a copy of the Defence and Counterclaim.” This document revealed details of the Funding Agreement of July 1995. The disclosure was a flagrant breach of the confidentiality terms of the Funding Deed and amounted to a repudiation of the agreement by Shell. Mr Joseph stated: “Neither we nor Shell accept that the mere showing to Mr Rines of the Defence and Counterclaim constitutes a breach of the Funding Agreement.”

 

104. On 16 September 1998 we wrote to Mr Moody-Stuart notifying him that in fact DJ Freeman (Ms Jane MacCarthy to be precise) had actually supplied a copy of the Defence and Counterclaim document to The Guardian newspaper. We stated in the letter: “you may feel that the account provided by DJ Freeman in its letter (and presumably approved by Mr Wiseman), comes under the heading of ‘being economical with the truth’. You may also consider that what they said in response to a letter addressed to you personally was deceptive and misleading given the serious legal ramifications. It is certainly another remarkable incident in a catalogue of deceptive and lies stretching back to 1993.

 

105. Although Mark Moody-Stuart was made aware of the deliberate deceit carried out on his behalf and of the sleazy undercover activities already admitted by Mr Wiseman and DJ Freeman, Mr Wiseman remained as Legal Director of Shell and DJ Freeman continued to represent Mr Moody-Stuart and Shell. Mr Wiseman is still Legal Director of Shell and DJ Freeman (now Kendall Freeman) still acts for the Royal Dutch Shell Group; so much for the promised honesty, integrity and transparency in all of Shell’s dealings. Deliberate deception directly on behalf of the Group Chairman of Royal Dutch Shell was effectively endorsed by the failure of the Group Chairman Mark Moody-Stuart to disown such disreputable conduct.

 

106.  I have already mentioned the admission made by Shell concerning undercover operations in a front-page story published in the UK by The Sunday Times on 17 June 2001. Shell confirmed hiring an undercover operative (and serving German Secret Service agent) in 1996, Manfred Schickenrieder, to infiltrate Greenpeace and to inform on other people and organisations campaigning against Shell.

 

107.   We wrote shortly before the “SMART” trial to many high level Shell Executives including Dr Fay’s successor as Chairman of Shell UK, Mr Malcolm Brinded. We made them aware of the sinister activity. We also specifically drew attention to incriminating evidence we had found in Shell’s discovery documents, concerning irregularities in a tendering process for the SMART contract.

 

108.   The companies involved were deliberately deceived and cheated by Mr Andrew Lazenby, the Shell manager at the heart of all our claims.

 

109.  Mr Lazenby used the same strategy as he had used with us, advising in October 1992 of delays and asking them to “bear with us – we will revert to you when we have made any further progress”.  His intention was to stop the companies pitching for Shell contracts from approaching Shell’s rivals even AFTER he had taken a decision (in writing) to eject them from the tendering process shortlist.
 

110.  Mr Lazenby even circulated a note dated 23 October (1992) in his handwriting to other Shell management colleagues stating his intention to “Keep rejects holding as long as poss”. The relevant companies had at Shell’s insistence been required to sign a confidentiality letter prohibiting any other oil industry links until the tendering period had been completed. To hide his true intentions, Mr Lazenby sought further information which involved relevant reject companies incurring more costs, when in fact unbeknown to them it was already a lost cause. Some were small companies which suffered financially because of the premeditated outright deceit perpetrated on them. Some individuals lost their jobs. Some of the companies went out of business. I consider the conduct of Mr Lazenby and his Shell management colleagues to be thoroughly dishonest and plain evil, even if not actually illegal.

 

111.    Mr Lazenby eventually awarded the SMART contract to a company – “Option One”, which was not even one of the 35 companies in the tendering process. He had a personal relationship with the directors of the company and an off shore bank account.

 

112.    Despite the clear evidence of serious wrongdoing in regards to the tendering process, Shell senior management would not intervene and Mr Lazenby remained employed by Shell.

 

113.     It appeared from our experience and from the discovery documents that no matter where ideas came from, nor the terms on which they had been disclosed to Mr Lazenby, all projects were funnelled into Option One. A classic example was a proposal put forward by Mr John Armstrong-Holmes, who from 1985 until 1993, was a senior member of Nottingham County Council and was elected as Group Leader in 1992.

 

114.    The full sworn Witness Statement from Mr Armstrong Holmes concerning the predatory behaviour of Mr Lazenby is published on the Internet (shell.2004.com “Shell Shareholders Organisation” link, then read Chapter 22. Mr Armstrong-Holmes testified under oath during the SMART Trial at the High Court and confirmed the testimony given in his Witness Statement.

 

115.  On or around July 1994, my son had a telephone conversation with a gentleman who was the former Shell Account Director for Senior King Limited, one of the companies in the SMART tendering process. A transcript exists of the conversation.  Senior King had been a Shell retained agency of long-standing before Mr Lazenby came on the scene. The relevant gentleman volunteered the information that Mr Lazenby had: “turned round all sorts of things that we’ve put forward”.  He commented: “I wouldn’t trust Mr Lazenby as far as I could spit”.  He also said, “He’s a liar mate”.  He went on to say “he hasn’t got any scruples at all…”

 

116.    My son was informed by Dr Fay during his first meeting with him at Shell Mex House that other agencies had made similar accusations against Mr Lazenby. This was confirmed in discovery documents. Mr Steve King of Senior King threatened action against Shell because Mr Lazenby had ruthlessly gone behind the back of his agency to separate them from their French partner, Schlumberger. Senior King was ruthlessly cut out of the relationship by Mr Lazenby. Discovery documents revealed a premeditated move made by Mr Lazenby in respect of another company in the SMART tender process, Concept Loyalty Limited.  Mr Lazenby ruthlessly cut them out of their partnership with another supplier, Fortronic.

 

117.    We also made Sir Philip Watts aware of the improper conduct in respect of the tendering process. In this connection I noted his comment reported on 24 April 2003 in the Daily Express newspaper concerning Shell’s ambitions in Iraq once a stable government has been established.  Sir Philip was quoted as saying: “Iraq has the second-largest oil reserves in the world and we hope to be involved at some point, so long as the tendering process is fair and transparent”. It is in my humble view brass necked impertinence for Shell to expect to be treated fairly when pitching for  a contract, when Shell senior management tactility endorsed the blatantly unfair, predatory and ruthless treatment meted out to  companies pitching for the Shell SMART contract.
 

118.  In Shell’s discovery documents my son found evidence in the form of an email from Mr Lazenby to his Shell colleagues stating his willingness to engage in “illegal” activity despite the prospect that it could be discovered. The email he circulated to senior Shell managers on 4th November 1993 (again in relation to the SMART project) contained the following highly illuminating comment: “My note of 25/10 expressed a personal and pragmatic view of how to handle the problem – it is in fact illegal and is certainly unofficial, and if we were discovered then we will enforce the official position…”

 

119.    We brought ALL of this incriminating information to the attention of senior management of the Royal Dutch Shell Group including Sir Mark Moody-Stuart and Mr Malcolm Brinded.  We even circulated a copy of the extraordinary Witness Statement of Mr Armstrong-Holmes. The information was circulated to every director of Shell UK and every director of Shell Transport and other Royal Dutch Shell Group Managing Directors. I was therefore surprised to subsequently read a Witness Statement given under oath by Mr Lazenby for the SMART Trial. In the concluding paragraph Mr Lazenby testified to the “unreserved support” that he had “received from Shell management to the highest levels”. Sir Mark Moody-Stuart did not deny in correspondence that this was indeed the case.

 

120.   Apart from legal considerations, Shell shareholders should be entitled to place some reliance on the aforementioned pledges of transparency, integrity and honesty in all of its dealings stated in Shell’s Statement of General Business Principles. However a letter to my son dated 9 June 1997 from Shell Legal Director, Mr Richard Wiseman, confirmed that in reality the pledges have no legal standing whatsoever. Like a bet placed with a bookmaker, they are binding in honour only. No such limitation is volunteered in the Statement. Furthermore, Shell has no formal system for monitoring alleged breaches. There is not even any laid down procedure for dealing with complaints. In other words, the STATEMENT is misleading as it encourages Shell shareholders and the wider public to believe that Shell insists that all of its dealings are conducted on an ethical basis. In my experience, Shell senior management does not consistently abide by or enforce the relevant core principles. 

 

121.    My son wrote to Prime Minister Tony Blair on 5 May 1998 pointing out that such “Codes of Practice” are not legally binding and do not come within the remit of any regulatory body. On 1 July 1998 he received a response from the Office of Fair Trading on behalf of the Prime Minister. Mary O’Driscoll of the Consumer Affairs Division stated that “in practice very few codes actually meet the requisite standards of best practice” and indicated that a new initiative was required. Mr Kim Howells MP, the Parliamentary Under-Secretary of State for Competition and Consumer Affairs subsequently became involved and agreed in correspondence that my son had indeed raised an interesting point. Whether any initiative was ever taken to cater for the “lack of consumer confidence in redress and disciplinary procedures” in such codes, as was admitted by Mary O’Driscoll in her letter, is unknown.

 

122.   I have a considerable amount of documents in my possession including correspondence with Sir Mark Moody-Stuart, Mr Malcolm Brinded, Mr Maarten van den Bergh, Miss Jyoti Munsiff, Mr Richard Wiseman, Mr Steven L Miller and others. The documents provide evidence of the ingrained corporate culture of cover-up prevalent at the very highest levels of Shell. Shell shareholders seem to be treated as a lower life form. This arrogant improper conduct is in my experience backed up by threats to deal with anyone wishing to blow the whistle on such activity, as per the documented avalanche of threats already mentioned.

 

123.   Our dealings with Shell did become very personal and acrimonious to the extent that even the wife of Sir Mark Moody-Stuart, Lady Judy Moody-Stuart, felt compelled to enter the fray and corresponded with me.  Her intervention was actually like a breath of fresh air and after a heartfelt exchange of letters, she wished my son and me well just before the SMART High Court Action in June 1999.

 

124.   Even more bizarrely we later discovered that unbeknown to us the son of Sir Mark and Lady Moody-Stuart, Mr Tom Moody-Stuart, was (and remains) a barrister practising at the same chambers who represented my son in the SMART litigation. 
 

125.   Despite the considerable volume of correspondence with Sir Mark, who knew from the information we supplied that his son’s colleagues were advising us, he never disclosed that fact to us. If my son had been made aware that the barrister son of Sir Mark potentially had access to my son’s privileged communications, he might have decided to use chambers other than 8 New Square.

 

126.   The degree of remarkable co-incidences even extended to Mr Justice Laddie, the Trial Judge. His Lordship, Sir Hugh Laddie, is intimately connected with the same law chambers at 8 New Square, Lincolns Inn, London and has had an on-going commercial association with senior and junior members of chambers, including barristers who acted for my son in the SMART litigation. His Lordship was aware of the involvement of the Moody-Stuart family in the litigation because of the information supplied to him.

 

127.   Although his Lordship has declined to say whether he had a pre-existing relationship/contact with Mr Tom Moody-Stuart at the time of the Trial, I feel sure that being a gentleman of the very highest integrity he would have declared any such potential conflict of interest if it existed. 

 

128.   I was however appalled that Mr Justice Laddie allowed the lead barrister acting for Shell, Mr Geoffrey Hobbs QC, to practice an outright deception on my son during cross-examination. Mr Hobbs falsely claimed that a motorbike messenger was on route to the Court from a key witness company, J Sainsburys, with the implication that Sainsburys had supplied documentary evidence which would incriminate my son. Mr Hobbs had without any prior notice to my son’s legal team, sprung an elaborate ambush to try to entrap my son. In fact it was a complete charade; a total fabrication; there was no such evidence and no motorbike messenger. My son refuted the allegations which were untrue and offensive. No wonder his lead barrister, Mr Geoffrey Cox (now a QC) was incensed and successfully argued that the Trial should be suspended.
 

129.   It was a truly bizarre Trial. The Judge allowed Don Marketing against whom Shell had brought a £100,000 Counterclaim to be represented by a teenage drop out, Mr Nicholas St John Gill, who had no legal training whatsoever. As far as I know Mr Gill uttered not a single word on behalf of his “client” throughout the three week duration. At least he provided a source of amusement to Mr Geoffrey Hobbs, the QC representing Shell who once apparently enquired when Mr Gill would be giving his summing-up.

 

130.   The SMART litigation was eventually settled as a result of an initiative by the Judge, Mr Justice Laddie, a number of weeks into the Trial, which commenced in June 1999 at the Royal Courts of Justice in London. This came about after Shell had estimated that the legal costs had risen above £1 million.

 

131.     Mr Justice Laddie did make some surprising comments when invited to approve the settlement. He seemed to excuse Mr Lazenby’s appalling behaviour in deliberately deceiving and cheating companies who thought they were participating in an honest tendering process.

 

132.   The Judge praised Lazenby saying that he had put Shells “commercial interests before the interests of outside firms”.  I have assumed that this was in reference to the tendering process but I may be incorrect.

 

133.   Mr Justice Laddie is in any event much more qualified than I to make comments about the legal aspect of Mr Lazenby’s conduct in dealing with outside companies, but there is no way that his premeditated actions as confirmed in Shell’s own documents, complied with the strictures of honesty, integrity and openness demanded of Shell employees in Shells Statement of General Business Principles. What he did may have been legal but it was not honest, truthful or open. It was the exact opposite.

 

134.   Those involved in negotiating and finalising the SMART settlement document, the “Deed of Compromise” were aware that when the Trial commenced my Doctor had written to Mr Justice Laddie in June 1999 concerning my failing health. Accordingly I was given a dispensation so that I did not have to attend court during the Trial, despite the fact that Shell had brought a £100,000 Counterclaim against me.

 

135.   Like Don Marketing, I had no legal representation – not even a token one. Shell had quite deliberately followed a policy of making the litigation “drawn out and difficult”, which seems to be their normal procedure against a financially weaker opponent. The objective being to exhaust an opponent’s financial resources.

 

136.   Consequently I eventually applied for Legal Aid which was initially granted and then mysteriously withdrawn. I do know that at least one Shell letter objecting to legal aid being granted was sent to the Legal Aid Board in connection with the SMART litigation. It contained information which solicitor Richard Woodman of Royds Treadwell knew was totally untrue and was prepared to testify to that fact. However the SMART case came to Trial before the relevant Judicial Review application could be heard. I had no legal representation in Court although I was legally entitled to it. Serial killers, burglars, rapists etc routinely receive legal aid, but an 81 year old Burma Campaign War Veteran being sued for £100,000 by a multi-national giant was scandalously denied any representation.    

 

137.   Neither did I receive “independent” legal advice as was apparently required for legal purposes to seal the June 1999 settlement agreement. The so-called “independent” solicitor, Mr Carl Vincent, of Titmuss Sainer Dechert, a London firm of solicitors, was in fact a former employee of Royds Treadwell.

 

138.    Mr Vincent had previously acted for us in the SMART litigation (during a Conference in chambers with Dr Mary Vitoria QC).  Hence he had been directly involved in the SMART litigation on behalf of his former firm Royds Treadwell and thus was far removed from being independent. Mr Vincent had also acted on our behalf in direct negotiations with Shell Legal Director Richard Wiseman, during the previous litigation. The Deed of Compromise checked and approved on my behalf by Mr Vincent as my “independent” legal advisor was subsequently signed by Mr Wiseman.  Everyone including Mr Wiseman and Mr Moody-Stuart knew that I was in a stressed-out state of mind at the time. Understandable in view of the immense pressure - the avalanche of threats against my family; the burglaries; the admitted undercover agents; the Counterclaim, etc. The fact that Mr Wiseman had felt compelled to assure us about our physical well-being was actually a frightening development which added to my anxiety.

 

139.   We were advised that Mark Moody-Stuart personally approved the SMART settlement which provided for Shell to pay my son’s legal fees. The “Deed of Compromise” also provided for a “joint” press release. Neither the “Deed of Compromise” nor the so called “joint” press release (actually issued by Shell) reflected the true terms of the SMART settlement. Although the settlement was publicly portrayed as a "stalemate", in fact my son would not agree to the SMART settlement without his legal fees being paid by Shell. He also insisted on personally receiving a cash sum. It was not a victory as per the previous High Court cases, but neither was it a “stalemate” as the media, general public and Shell shareholders and employees were led to believe at the insistence of Shell management. I doubt if even the Judge knew the real terms of the deal agreed by my son. It was not the settlement deal put before the Judge for approval. Talk about smoke and mirrors.

 

140.  The SMART settlement had been put forward as a “Peace Treaty” designed to bring an end to the acrimony between the parties.  That was the kind of language used.

 

141.    However in September 2001 Shell Legal Director Richard Wiseman sent a written communication to a third party company by implication denigrating my son to the extent that his poisonous remarks brought to an untimely end a project on which my son had been engaged for some time. Mr Wiseman’s malicious comments were in direct breach of the SMART settlement terms. My son notified Mr Wiseman in writing that by his actions Mr Wiseman had repudiated the SMART settlement agreements on behalf of Shell. My son also notified Mr Malcolm Brinded and Sir Philip Watts accordingly by faxed letter.

 

142.   It was also put to Mr Wiseman that contrary to the terms of the SMART settlement agreements, Shell had circulated derogatory information about my son. Although given the opportunity to deny that this had happened, Mr Wiseman declined to comment. Shell had previously issued to the media AND PUBLICLY DISPLAYED AT ITS HQ PREMISES defamatory allegations against my son and me. Thus Shell had a track record of such activity. It may be difficult to believe, but it is true.

 

143.   Mr Richard Wiseman confirmed in email to me dated 26 and 27 November 2003 that he had circulated to Shell senior management a document prepared by me setting out all of the above catalogue of serious wrongdoing which occurred prior to the recent oil reserves debacle. The recipients included Sir Mark Moody-Stuart, Mr Malcolm Brinded, Sir Philip Watts, Mr Steve Miller (then Chairman, President and Chief Executive Officer of Shell US Oil), and Mr Clive Mather, the current Country Chairman of Shell U.K. Limited. That information as well as the relevant correspondence with Mr Wiseman can be viewed on the website: Shell2004.com (using the Shell Shareholders Organisation link).

 

144.   The remarkable comments made by Mr Justice Laddie at the termination of the Trial together with information about the related heated exchange with my son’s lead barrister, Geoffrey Cox, which took place initially in open court and apparently subsequently in the Judges chambers, is published on the same website. This is again under the “Shell Shareholders Organisation” link.

 

145.   Mr Colin Joseph of Kendall Freeman claimed in correspondence sent to me in December 2002 that his firm is “instructed on behalf of all of the companies within the Shell Group as well as all current Shell employees”; a rather breathtaking claim. In the same correspondence Mr Joseph threatened dire action against me on behalf of all Shell companies and all Shell employees if I published information on the Internet. I guess that I should have been concerned at going-up against a multinational goliath that operates in 145 companies and has over 115,000 employees. However, the relevant whistleblower information has been published on the Internet for over a year despite the threats received from Shell and its lawyers.

 

146.   The truth is that the vast majority of Shell people are decent hard working individuals. My dispute is with the few greedy incompetent individuals in elevated positions who fail to enforce and live up to the core pledges of Shell’s Statement of General Business Principles.  It is their actions which have dealt such a blow to a brand reputation built up over a hundred years.
 

147.  Perhaps if the relevant individuals had spent less time worrying about multi-million pound remuneration packages and their personal pensions, and more on their responsibilities to shareholders, employees and the general public, the Royal Dutch Shell Group would not be in the sorry state in which it currently finds itself.

 

148.   I often felt like a voice in the wilderness; a solitary individual tilting at a multinational giant, until I discovered that so many other individuals and companies have suffered because of Shell’s unprincipled behaviour. Now the unpalatable truth about relevant recent and current leaders in Shell senior management is at last beginning to emerge.

 

149.   With regards to the business ethics dimension, at the request of Shell management, the UK Advertising Standards Authority investigated the survey results which the Shell Corporate Conscience Pressure Group published in the UK. These were the results which showed that the integrity of Shell management was held in extremely low esteem by Shell retailers throughout the UK. For example, as previously stated, 91% of participants in one survey voted that Shell’s management should resign.

 

150.   The ASA inspected our membership list of Shell retailers (over 10% of Shell’s entire retail network), Shell shareholders, and Shell suppliers, plus the survey Affidavits supplied by an independent solicitor. The ASA was satisfied that our membership claims and the survey results were accurate and truthful.

 

151.    As far as I know, Shell never took up our challenge in full page advertisements in the gasoline trade press which stated as follows: “We challenge Shell to commission and publish the results of independent research using precisely the same questions and offering respondents GUARANTEED anonymity.”  If they did, they kept the results to themselves.  That would be no surprise.

 

152.   Based on everything which has transpired, I have to conclude that Shell has lost its moral bearings. It is not the PR puff and slogans which count, but the actual deeds of Shell senior Management. Rotten apples must be treated as such. If Shell is to regain its former deserved reputation as a company/brand that we CAN be sure of, individuals tainted by past mistakes must be retired.

 

The information stated by me herein is true to the best of my knowledge, information and belief.

 

ALFRED ERNEST DONOVAN  

29 March 2004

 


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