By John Donovan
Twitter is currently flooded with people trying to identity parties who have obtained Super-injunctions in an attempt to hide embarrassing information from public scrutiny.
It is not widely known that Royal Dutch Shell has been a trailblazer in using draconian litigation to silence a conscience driven whistleblower who objected to Shell defrauding its shareholders and recklessly putting employees lives at risk.
In this case, it was a multinational oil giant trying to keep the lid on a potentially highly damaging story.
EIGHT Royal Dutch Shell companies collectively buried a former employee, Dr John Huong, in High Court injunctions and contempt proceedings seeking his imprisonment, all in an effort to hide Shell’s misdeeds.
Dr John Huong: an employee of Shell Malaysia for 29 years, a Production Geologist and Asset Integrity Engineer
Printed below are extracts from one such legal submission from the law firm acting for the EIGHT Royal Dutch Shell companies registered in various countries, including the UK, the Netherlands and Malaysia.
Notwithstanding the Existing Injunction, the Defendant continued publishing statements defamatory of the Plaintiffs. In the Plaintiffs’ view, some constituted contempt of court in the Previous Action. Contempt proceedings have since been initiated. For those statements that probably fell outside the scope of the Previous Action and the Existing Injunction, the Plaintiffs commenced the present proceedings.
The High Court may grant an interlocutory injunction restraining the Defendant, whether by himself or by his servants or agents or otherwise, from publishing or further publishing matter which is defamatory or of malicious falsehood. It is not necessary to show that there has already been an actionable publication or that damage has been sustained. In appropriate cases an injunction may be granted ex parted and before the issue of a writ.
In other words, an injunction can be granted even before damage occurs. The present facts are therefore a fortiori.
The Defendant has sought to contend that the publications were by Donovan, not him. This is disingenuous and not the law. As a matter of law, publication is the dissemination of defamatory material to at least one other person:
Here, there was communication from the Defendant to Donovan. Donovan then republished the defamatory material. In law this is deemed to be publication by the Defendant as the publication by Donovan was the natural and probable consequence of the publication from Huong to Donovan.
The full text of this publication is exhibited as ‘TK-2’ of Thavakumar Kandiah Pillai’s affidavit of 5.4.06.
It is a letter to Jyoti Munsiff the newly appointed Chief Ethics and Compliance Officer of Royal Dutch Shell plc.
We now merely highlight certain passages from that publication to show their defamatory nature:
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 this point as I am sure that my analysis must be at fault?
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.
The Plaintiffs case is that these passages clearly identify and defame the Plaintiffs. The crux of the defamation is the allegation that the Defendant, a whistleblower has been gagged to prevent him from speaking the “TRUTH”. He has been restrained from revealing ‘misdeeds’ that are illegal, immoral and or unethical. The allegation therefore is that the Plaintiffs have abused the legal process afforded by the High Court.
There can be no question that the publication defames the Plaintiffs. The allegations include the following:
However Dr Huong discovered in 1997 and the immediately following years that the SGBP are in fact empty promises – propaganda for use in the circumstances described above and in global advertising campaigns such as “Profits and Principles” or “the triple bottom-line”. The SGBP amounted to nothing more than a confidence trick to encourage the public and financial institutions into investing in Shell.
Dr Huong was, as far as I am aware, the first Shell employee to blow the whistle at Shell (in 1997) about the deliberate falsification of hydrocarbon reserves.
His objections to bending his principles by turning a blind eye to wrongdoing proved to be the turning point in Dr Huong’s previously highly successful career with Shell. He was humiliated, victimised, put under intolerable pressure which made him ill and was ultimately, sacked, thereby further aggravating stress brought about by Shell’s actions against him. Prior to the wrongful dismissal, the domestic inquiry heard that his medical record in the care of the company doctor could not even be found. The records had mysteriously disappeared, just like Shell hydrocarbon reserves.
The ‘affidavit’ contains related defamatory assertion of, for example, racism against the Plaintiffs:
Mr Alfred Donovan has pointed out in the same vein that Shell settled a retirement funds related class action law suit brought against it by its American employees, whilst it has for years, dragged out retirement fund related lawsuits brought by its Malaysian former employees.
It there is any substance to Mr Donovan’s speculation, then we would have to add ‘racist policies’ to the description listed above.
The Defendant has gone on a wild rampage with Alfred Donovan to consider any wrongdoing done by any Shell company around the world. He then extrapolates from the particular – individual instances of impropriety anywhere in the world – and reaches a general conclusion that the 8 Plaintiffs have been dishonest, engage in criminal conspiracy and criminal conduct generally.
In the rambling megalomaniacal affidavit Defendant elevates himself to a pedestal and concludes from the fact that he was dismissed and that this was because he had discovered the TRUTH’.
Yet, in all this, not one iota of specific fact is raised to justify any of the very serious allegations against the Plaintiffs. As we have seen, these include allegations of:
Destroying documents to thwart legal proceedings
That is why he had to run to the Donovans for assistance. Even now, not one specific fact of wrongdoing has been supported.
‘Over·the-top’ abusive and snide statements like those made by the Defendant, aided and abetted by Alfred Donovan constitute clear evidence of an absence of honest belief.
DESPITE ALL OF THE BLUSTER, ROYAL DUTCH SHELL SETTLED OUT OF COURT WITH DR HUONG TO STOP THE CASE BEING HEARD IN OPEN COURT. DR HUONG HAD PREPARED EXTENSIVE EVIDENCE SUPPORTING HIS ASSERTIONS AND HAD MANY WITNESSES LINED UP. FOR OBVIOUS REASONS, SHELL DECIDED THAT AT ALL COSTS, THE CASE HAD TO BE KILLED BEFORE IT CAME TO TRIAL. HENCE THE OUT OF COURT SETTLEMENT AFTER YEARS OF LITIGATION, JUST AS SHELL DID WITH THE NIGERIAN TRIAL IN THE USA.