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ShellNews.net: Royal Dutch Shell Response to Dr John Huong in Defamation lawsuit: Shell claims it has a good reputation?

The docoment below is the legal response by a group of EIGHT Royal Dutch Shell companies to the Defence filed by Dr John Huong, the famed Shell whistleblower and former Shell employee/geologist for almost 30 years. Shell's reply has been filed with the High Court of Malaya and consequently is in the public domain.
As can be seen, Shell lawyers are continuing to make an international laughing stock out of Royal Dutch Shell Plc. Shell is fighting a losing battle against the power of the Internet as a low cost tool for promoting freedom of expression. It gives the weak and oppressed a powerful global platform against the rich and powerful of this world, including greedy, evil and dishonest multinationals e.g. the scandal ridden Royal Dutch Shell Group whose reputation is actually on a par with ENRON.
The articles which were the subject of the original Shell lawsuit in June 2004 have had vastly more attention focused on them because Shell foolishly decided to sue. Furthermore, the articles and extracts from them are now on countless websites in several countries, even including Shell's own global website and on an award winning website associated with freedom of expression on the Internet, actually located within the Malaysian jurisdiction.
Next week, ShellNews.net will publish a response to this document which will deal with the points made by Shell. Dr Huong will have no involvement in what we have to say. We will pull no punches.
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(CIVIL DIVISION) SUIT NO. S2-23-41-2004
BETWEEN
1. SARAWAK SHELL BHD (719784V)
2. SHELL MALAYSIA TRADING SENDIRIAN BERHAD (6078-M)
3. SHELL REFINING COMPANY (FEDERATION OF MALAYA) BHD (3926-U)
4. SHELL TIMURSDN BHD (113304-H)
5. SHELL EXPLORATION AND PRODUCTION MALAYSIA B.V. (993963-V)
6. SHELL OIL AND GAS (MALAYSIA) LLC (993830-X)
7. SHELL SAB AH SELATAN SDN BHD (228504-T)
8. SABAH SHELL PETROLEUM COMPANY LTD (993229-W) PLAINTIFFS
AND
HUONG YIU TUONG DEFENDANT

REPLY
The Plaintiffs file this Reply without prejudice to their rights to apply to strike out the Defence or parts of it on the grounds that they are scandalous, frivolous, vexatious or otherwise an abuse of the process of the court or under the inherent jurisdiction of the court.
1. Except for what is expressly admitted, the Plaintiffs join issue with the Defendant on his Defence.
2. The Plaintiffs make no admission on the matters raised in paragraph 6 of the Defence.
3. Paragraphs 10, 12 and 14 of the Defence are denied.
4. As regards paragraph 15 of the Defence, the Plaintiffs aver and will contend as follows:
4.1. The Defendant was dismissed from his employment with the 1″ Plaintiffs for misconduct after a domestic Inquiry. Paragraph 11 of the Statement of Claim is repeated.
4.2. The decision of the Domestic Inquiry has not been set aside and/or varied and remains in full force.
4.3. Regardless of the outcome of the Defendant's application before the Industrial Court in matter no. 8/4-1377/04, such outcome will not constitute a justification of the defamatory statements made by the Defendant of the Plaintiffs and referred to in the Statement of Claim.
Except for the above, paragraph 15 of the Defence is denied.
5. As regards paragraph 16 of the Defence, the Plaintiffs aver and will contend as follows without prejudice to their rights to apply to strike out the entire paragraph and/or parts of it on the grounds that they are scandalous, frivolous, vexatious or otherwise an abuse of the process of the court or under the inherent jurisdiction of the court:
5.1. The allegations of misconduct and impropriety made in paragraphs 16.1 to 16.14 are denied.
5.2. The allegations made in paragraphs 16,1 to 16.14, even if true, which is denied, do not constitute justification, as alleged or at all, of the defamatory imputations alleged in paragraph 14 of the Statement of Claim.
Except for the above, paragraph 16 of the Defence is denied.
6. As regards paragraph 18 of the Defence, the Plaintiffs aver and will contend as follows:
6.1. Paragraph 18.1 is denied. The Plaintiffs aver and will contend that the Defendant published his email/letter of 14.5.04 was published to the world at large in the ‘Whistleblower No 2' website and/or the www.shell2004.com website.
6.2. Paragraph 18.2 is denied. Paragraph 6.1 of this Reply is repeated.
6.3. Paragraph 18.3 is denied. Paragraph 6.1 of this Reply is repeated.
6.4. Paragraph 18.4 is denied.
6.5. Paragraph 18.5 is denied.
Except for the above, paragraph 18 of the Defence is denied.
7. As regards paragraph 21 of the Defence, the Plaintiffs aver and will contend as follows;
7.1. Paragraph 21.1 is denied.
7.2. Paragraph 21.2 is not admitted.
7.3. The physical location of the computer server, which is not admitted, is irrelevant to the jurisdiction of the High Court of Malaya. Paragraph 21.3 is therefore denied.
7.4. The Plaintiffs aver and will contend that the publication on the 'Whistleblower No 2’ website and/or the www.sheII2004.com website was by the Defendant.
7.5. Further or in the alternative, the publication on the 'Whistleblower No2’ website and/or the www.shell2004.com website constituted republication by the Defendant through third parties, whether Alfred Ernest Donovan and/or John Alfred Donovan or otherwise, with his authority and/or knowledge and/or intention that it would be republished.
7.6. Paragraphs 21.3 to 21.9 are therefore denied.
Except for the above, paragraph 21 of the Defence is denied.
8. Paragraph 22 of the Defence is denied.
9. As regards paragraph 23 of the Defence, the Plaintiffs aver and will contend as follows without prejudice to their rights to apply to strike out the entire paragraph and/or parts of it on the grounds that they are scandalous, frivolous, vexatious or otherwise an abuse of the process of the court or under the inherent jurisdiction of the court:
9.1. Paragraph 23.1 is denied. The Plaintiffs repeat paragraph 5 of this Reply.
9.2. Paragraphs 23.2 to 23.28 are not allegations against the Plaintiffs and as such, are totally irrelevant as a defence to the Plaintiffs' claim. In any event the Plaintiffs deny that the allegations made in them, which are denied, are capable of constituting the defence of justification as alleged or at all.
Except for the above, paragraph 23 of the Defence is denied.
10. As regards paragraph 24 of the Defence, the Plaintiffs aver and will contend as follows:
10.1. The plaintiffs in this action are the Plaintiffs, not the 'Shell Group'. The allegations made against the 'Shell Group' in paragraph 24 of the Defence, which are denied, cannot therefore constitute fair comment in relation to the allegations complained of in the Statement of Claim as alleged or at all.
10.2. The allegations made by the Defendant as complained of are statements of fact, not comment. The defence of fair comment is therefore inapplicable.
Except for the above, paragraph 24 of the Defence is denied.
11. Insofar as the Defendant relies on the defence of fair comment the Plaintiffs aver and will contend that even if the Defendant is otherwise entitled to rely on it, which is denied, that right is vitiated by express malice:
PARTICULARS OF EXPRESS MALICE
Subject to the Plaintiffs' rights to discovery and interrogatories, and without prejudice to the Plaintiffs' rights to rely on answers given in cross-examination, the best particulars that the Plaintiffs can render at present are as follows:
11.1. The denial in paragraph 4 of the Defence that the Plaintiffs have a good reputation and are of good standing.
11.2. The irrelevant allegations in the Defence which are scandalous, frivolous, vexatious or otherwise an abuse of the process of the court or under the inherent jurisdiction of the court.
11.3.. The denial in paragraphs 25 and 27 of the Defence that the Plaintiffs have suffered loss and damage by reason of the defamatory publications by the Defendant.
11.4. The continued publication of matters defamatory of the Plaintiffs notwithstanding the injunction obtained by the Plaintiffs against the Defendant on 23.6.04 in respect of substantially similar defamatory allegations which remains in force.
11.5. The plea of justification in paragraphs 15 and 23 of the Defence.
11.6. The refusal of the Defendant, even now, to retract and/or apologise or in other any way make amends for his defamatory publications and/ or to confirm that he will not publish them again.
11.7. The fact that the Defendant only commenced publishing statements defamatory of the Plaintiffs after he was dismissed by the 1st Plaintiffs.
11.8. The publication and/or the procurement of publication of the Defendant's Defence at the www.shell2004.com website which included, inter alia, the following commentary which is further defamatory of the Plaintiffs:
“Dr Huong, a former Shell geologist of almost 30 years standing was the FIRST SHELL employee to blow the whistle on the Shell reserves fraud (and other important issues relating to the discredited senior management of Royal Dutch Shell). As a result Shell appears determined to silence him at all costs. Hence the unprecedented highly distasteful spectacle of EIGHT giant Shell companies collectively bringing a defamation action against one human being – an unemployed Malaysian who has no prospect whatsoever of finding alternative employment in his profession while the litigation cloud hangs over the heads of himself and his family.
Dr Huong has now filed a Defence which contains a staggering array of allegations, facts and evidence directed against Royal Dutch Shell Group. It represents an unprecedented indictment of Shell by a former Shell insider.
Dr Huong made the mistake of believing in Shell's STATEMENT OF GENERAL BUSINESS PRINCIPLES and in particular the pledges of “honesty, integrity, respect for people” in all of Shell's dealings and Shell's philosophy in the new ways of working, including the promotion of trust, openness, teamwork, professionalism and pride in what Shell does. He did not realise that the pledges were purely hype and spin meant for use in global PR campaigns such as “Profits and Principles' le. for the consumption of gullible consumers and stakeholders.
We now know as a result of the reserves fraud that the slogan should have been “Profits and NO Principles”.
[Our emphasis]
11.9. The Defendant's publication and/or the procurement of publication of the following letter to Jyoti Munsiff at the 'Tell Shell' website http://www.tellshell.net/blog/ShellNewsNet/_archives/2006/2/2/1740207.html on the following terms;
“Congratulations on your appointment as Chief Ethics and Compliance Officer for Royal Dutch Shell Plc.
As you know I am being sued by eight companies of the Royal Dutch Shell Group for alleged defamation. The relevant Shell companies have obtained a restraining order which prevents me for speaking the TRUTH in line with the United Nations Universal Declaration on Human Rights. My rights to freedom of expression have in fact been restrained for over 18 months. I had thought that Shell supported this UN Declaration, but it seems that this assumption must be incorrect. I would welcome your clarification on has point as I am sure that my analysis must be at fault?
I am also perplexed by the fact that Shell apparently allows Mr. Alfred Donovan to publish negative commentary about Shell on his website unhindered while I have been sued for articles posted by him on his website under my name? Mr. Donovan has also published an extract from a legal submission purportedly made by Shell International to the World Intellectual Property Organisation in which Shell stated that it supports the right of Mr. Alfred Donovan to criticise Shell on his website. I have also read the November 2005 email to Alfred Donovan from Shell International General Counsel Mr. Richard Wiseman in which Mr Wiseman confirms how tolerant Shell is of Mr. Donovan's postings on his website. I trust that you can appreciate why I am so puzzled at the apparent disparity in treatment. I am sure there must be a logical explanation?
It therefore seems appropriate to ask you in your new capacity whether the relevant postings by Mr. Donovan i.e. the claimed extract from Shell's submission to the WIPO and the November 2005 email from Mr. Wiseman are genuine? Surely they must be false??? Why would Shell encourage Mr. Donovan to indulge in his rights to freedom of expression while simultaneously adopting a totally different approach towards me? Something really must be seriously amiss. The answers to my questions are important if – as I assume must be the case – you genuinely want to encourage whistleblowers to speak out if they become aware of misdeeds which are in contravention of the Shell Statement of General Business Principles (SGBP).
It is surely essential in this regard that an even-handed approach is adopted in such matters so that would be whistleblowers and parties with genuine grievances are not deterred by the prospect that they could be ostracized, victimized, sacked and/or sued if they do come forward. In regards to this paragraph I am speaking of course in general terms, not about my case, as that would be inappropriate under the current ongoing litigation.
This letter also seeks confirmation from you for me to make significant inputs for improving ethics and compliance at Shell. I sincerely believe that for obvious reasons I have a unique perspective on the question of Shell employees engaging professionally in whistle blowing when faced with ethical, moral and/or legal dilemmas.

I also believe that it is fair to make readers of this communication aware that apart from the High Court Restraining Order I am also constrained in my comments by a threat of imprisonment.

I am sure that the eight Royal Dutch Shell companies who collectively decided to sue me believe that their action is an appropriate and proportionate response to the alleged defamatory comments by one former Malaysian employee of 29 years.
Thank you
Sincerely,
Dr. John Huong
Note: This letter will also be copied to Mr. Alfred Donovan because his name was also mentioned”.

[Our emphasis]
11.10. The Defendant's publication and/or the procurement of publication of an 'affidavit' in his name on the Tell Shell website http://www.tellshell.net/blog/_archives/2006/2/7/1749132.html on the following terms.
I believe that Shell management treated me this way in the expectation that I would either resign or adopt a servile attitude, including turning a blind eye to management violations of the Shell Statement of General Business Principles. I believe that this was the fundamental reason why Shell management was hostile towards me. I was even told by two well engineers that their team leader had instructed that I was “not to walk along his corridor”. Such unprofessional childish nonsense was totally out of order because my operational geological work required me to discuss matters face-to-face with his engineers. It was also humiliating in the extreme that the Team Leader conveyed his instructions via individuals I had to work with. That was insulting to me and highly embarrassing for staff involved.
Such shabby and inhumane treatment was inflicted on me after I had consistently promoted and protected Shell's best interests during my work. My adherence to the ethical codes enshrined in the Statement of General Business Principles; the Health, Safety and Environmental policy guidelines: and the Human Resource Policy and Procedures Manual were not appreciated. Instead I was abused and crucified by Shell's management and its officials.
I believe such actions were in violation of all ethical norms and constituted serious breaches of my Human Rights under the UN Universal Declaration of Human Rights – rights which Shell purports to support.

The current defamation law suit against me by EIGHT Royal Dutch Shell companies also constitutes a breach of my rights to freedom of expression and freedom of conscience accorded to me and fellow human beings under the aforementioned United Nations Declaration.

The fact that it was deemed necessary for EIGHT Shell companies to collectively sue one unemployed Malaysian seems to be a classic case of overkill. It would have already been an uneven struggle even if only one such company had directed its wrath (and retribution) against me.
There are also lawsuits in progress in Malaysia against Shell which have been brought by its former employees. One High Court case involves a group of 399 former Shell employees known as “Team A”. Their action relates to deductions made by Shell to their Employee Providence Fund. A Judge has already ruled that the deductions were “unlawful”. Shell has appealed that decision apparently in an attempt to exploit a legal loophole relating to time limits. This appears to be a ploy by Shell to evade its moral responsibilities to its former employees. News reports related to this distressing case are published on the Donovan website.
Current employees and employees who had resigned after 1997 were persuaded by the company to opt for a Defined Contributory Scheme (DCS). The relevant employees wrongly thought that Shell management was acting in their best interests. It turned out however to be a detrimental move for the relevant employees and a financially beneficial manoeuvre for Shell. Eventually the company paid an ex-gratia payment plus adjustments for the DCS holders in early 2004 provided they were willing to sign off a letter of undertaking not to pursue legal action against the company in future.
In a related question and answer leaflet, published by Shell employees such as me, who have been dismissed, would not be entitled to receive any such ex-gratia payments, nor the adjustment paid to other employees. Therefore, the representation by Sarawak Shell Berhad to me of the alleged benefits in the Defined Contributory Scheme and my subsequent dismissal under the most extraordinary circumstances has caused me to be prejudiced and to suffer financial loss and financial insecurity.
I too have been severely penalised by what I consider to be completely improper decisions made in respect of Shell employee pension funds. The Malaysian people are by nature (in my humble assessment) fairly docile, dedicated and basically decent human beings. The fact that several hundred hard-working and loyal Shell employees felt compelled to institute legal proceedings against their former employer speaks absolute volumes. I am truly appalled by the Royal Dutch Shell Croups' unscrupulous heartless treatment of the sick, elderly and dying, as reported by the Malaysian news media. I believe that such conduct is indeed evil and in line with Shell's management actions in other Countries e.g. Nigeria, Africa, South America, Nicaragua, Caribbean, USA, Canada, Russia, Vietnam, Philippines, Papua New Guinea, County Mayo in Ireland, etc”'

[Our emphasis]
The Plaintiffs will rely in particular on the fact that the Defendant had not obtained leave of Court in this action to file any 'affidavit’ nor was there any pending proceedings in this action that warranted the preparation of an 'affidavit’ on the above terms or at all as further evidence of malice.
11.11. The Defendant's publication and/or the procurement of publication of the following letter to Human Rights Watch at the 'Tell Shell' website confirming the truth of the contents the 'affidavit' referred to in paragraph 11.9 of this Reply on the following terms:
“This email is in connection with the communication which I believe you have received earlier today from Mr. Alfred Donovan from Shellnews.net.
I want to put on record 0K facts that I have not authorized publication of the Draft Affidavit and/or the Communication sent to Human Rights Watch.
The publication is entirely a matter for the Donovans.
I had not sanctioned the Draft Affidavit published on the Donovan website.
Having said that, I do not take issue with anything stated in the Draft Affidavit, bearing in mind that I am under threat of imprisonment and it would not be prudent for me to comment further on this matter other than to state in general terms that I support freedom of expression.
Sincerely,
Dr. John Huong
Copied:
Mr. Alfred Donovan
END OF DR HUONG LETTER TO HUMAN RIGHTS WATCH COMMENT ADDED BY ALFRED DONOVAN
I note that Dr Huong has not taken issue with the accuracy of the content of his draft Affidavit. This is unsurprising since he was the author (but not the publisher).”

{Our emphasis]
The Plaintiffs rely on the allegations referred to above in paragraphs 11.7 to 11.10 of this Reply as evidence of express malice without prejudice to their rights to commence separate proceedings in respect of each of them for libel.
The Plaintiffs aver and will contend that in the circumstances, the Defendant published the defamatory statements complained of maliciously, knowing that they were false or recklessly not caring whether they were true or false out of spite or ill-will towards the Plaintiffs thereby vitiating the defence of fair comment.
12. The Plaintiffs repeat the particulars of 11 of this Reply as further particulars in support of their claim for aggravated damages.
MESSRS T H LIEW & PARTNERS SOLICITORS FOR THE PLAINTIFFS
Dated this 22nd day of February, 2006.

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