By John Donovan
Visitors to this website must wonder why Shell does not sue me for defamation, given the frequent outspoken articles about the oil giant published under my name?
The short answer is that there is no defamation if what is stated is true.
Readers may find the long answer more interesting.
Royal Dutch Shell officials have fretted for years about the prospect of me raising this very subject during a Q & A session at the AGM.
I may do so this year.
This is an extract from a Shell internal communication:
Do we want to script specific responses to questions that the Donovan’s may raise if they attend the AGM i.e.
What is your response to My (Donovan) claim that we have received confidential information from Shell insiders that we are prepared to use against Shell?
What is your response that claims made on our website are slanderous to Shell. Why don’t you take us to court?
We offer Shell the opportunity to comment on stories before they are released but they do not accept. Why is this?
Shell officials are probably still trying to come up with any credible answers.
I have printed below what a senior in-house lawyer at Shell stated in November 1998 on this subject. Richard Wiseman, the then Legal Director of Shell UK Limited authored an article for a Shell internal magazine. We obtained it following an application under the UK Data Protection Act. Parts have been censored by Shell lawyers. Mr Wiseman had no idea that we would ever see it. It was not disclosed, as it should have been, in the discovery process.
FUEL FOR THOUGHT
DEFENDING THE COMPANY’S GOOD NAME AND REPUTATION
There has recently been some publicity surrounding a writ issued against Shell UK by Mr John Donovan, director of a company called Don Marketing, who claims that his company invented the SMART loyalty programme and that he or his company should be compensated for its use. Shell UK is strongly defending the claim, having carefully investigated and discussed it with Mr Donovan and his solicitors. Mr Donovan has been making a number of unpleasant allegations in public and in the press, and has been handing out leaflets to staff.
Shell UK Legal director Richard Wiseman explains.
Mr Donovan and his companies have made several claims against Shell in the past. For good economic reasons, these cases were settled before they reached court. At that time, both parties agreed that there should be no further public debate about these matters ? an obligation which Shell UK has consistently honoured, but which Mr Donovan has not.
However, we feel that the current case cannot be concluded satisfactorily except by allowing it to go all the way to court. We are vigorously defending the writ Mr Donovan has issued about SMART, and counterclaiming against him for failing to honour his previous agreement. We expect the case to go to court next year.
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Shell UK could ask the courts for an injunction to prevent Mr Donovan and his father from making any further unpleasant allegations.
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But with Mr Donovan already alleging that we may have taken all sorts of measures to try to keep him quiet, we know this could give give him an opportunity to try to present himself as a “David” fighting a “Goliath”.
In general, most companies like ours can see only too well that libel proceedings may attract far more publicity than the original allegations ever had or would be likely to have. An example is the recent ?McLibel? case which tied up McDonald’s for years. Any case we brought would not necessarily be the same, but it can be a major business diversion for no real gain to the company. And people don’t always remember who won.
One of our colleagues who has been smeared by Mr Donovan’s assertions
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who has since moved on to another job with Shell. The hurtful allegations being made against Andrew in public leave him in a difficult position. Shell UK is satisfied that he has done nothing wrong, either in relation to this claim or any previous claims. We are confident that he has acted properly throughout.
Mr John Donovan is one of a number of people who from time to time have approached us to suggest marketing concepts. Generic concepts in marketing are often quite common and not original in themselves. The basic concept for the SMART scheme had already been around for some time before Mr Donovan approached us. Where a scheme actually developed may seem to have some resemblance to unsolicited material from third parties, allegations of this sort can be complicated to refute.
However, I am satisfied that the SMART scheme was developed entirely independently of Mr Donovan, and we believe this will become clear when the case goes to court.
“WE ARE VIGOROUSLY DEFENDING THE WRIT MR DONOVAN HAS ISSUED ABOUT SMART AND COUNTERCLAIMING AGAINST HIM FOR FAILING TO HONOUR HIS PREVIOUS AGREEMENT. WE EXPECT THE CASE TO GO TO COURT NEXT YEAR.”
A lot has happened in the ten years since the article, including the Shell reserves fraud and Shell’s multimillion dollar settlements of a human rights case and a corruption case, both relating to Shell’s controversial operations in Nigeria. It was admitted in a confidential 93 page internal report leaked to us that Shell’s actions in Nigeria feed a vicious cycle of violence and corruption. Shell’s involvement in spying against its perceived enemies and planting spies inside host governments, including the Nigerian government, has also been exposed.
Consequently there is not much of a Shell reputation left to defend.
We found out from Shell discovery documents that “Andrew”, the Shell manager mentioned by Wiseman in his article, was prepared to engage in illegal acts on behalf of Shell. It was evident from his diary that he was a disgruntled employee who recorded his intent to set up a personal business while at Shell and exit the company at the age of 35, presumably on the basis of building up sufficient funds in the meantime. He had an offshore bank account into which funds were paid. Lazenby also had a close relationship with an agency “Option One” to which all of our confidential ideas were funneled. They even miraculously won a major contract in a tendering process in which they did not participate. This was akin to a horse winning a race in which it did not run.
As to the bluster about Shell defending the Smart claim, Shell settled the action during the cross-examination of the self-described Machiavellian executive, “Andrew” Lazenby. Shell paid all legal costs, said to be over £1 million and I received a secret payment. Shell naturally withheld the full terms of the settlement from the Judge.
As indicated, Mr Wiseman stated in reference to Andrew Lazenby: “Shell UK is satisfied that he has done nothing wrong, either in relation to this claim or any previous claims. We are confident that he has acted properly throughout.”
I will provide one further example to refute this pure bullshit peddled to Shell employees.
Printed below is an entirely voluntary reference made to our Make Money claim in a statement by solicitors acting for Shell (Mackrell Turner Garrett) supplied to CEDR mediators in August 1996. The mediation was in relation to the Nintendo and “Now Showing” High Court actions we brought against Shell, both also involving Andrew Lazenby, both also settled out of court, according to Richard Wiseman, on moral grounds.
“Shell recognised that Don had perfect rights to claim sums due in respect of Make Money, and the agreed sum was paid within a matter of days of proceedings being issued. Shell also recognises and acknowledges the long and successful trading history between the two companies. Don have been involved in a number of successful promotions run by Shell, concluding with a promotion known as Star Trek in 1992. Don’s considerable assistance in previous years is formally acknowledged by Shell.”
Shell’s STATEMENT OF CASE also stated: “Unbeknownst to Shell Personnel handling Make Money 1994, an agreement had been reached between Don and Shell many years ago granting joint proprietary rights to the concept.”
This was a pack of lies. We have Shell letters and taped telephone conversations, which prove that Shell executives knew about our rights to Make Money and deliberately chose to secretly move forward with their plans without involving our company. Unfortunately for Shell we caught them in the act and immediately issued High Court proceedings. Shell settled because it was forced to do so.
We gave out leaflets to Shell employees showing a pirate flag flying from the mast on top of Shell’s London HQ. According to information from our sources, the piracy flag should still be flying as a warning to all who disclose confidential business ideas to Shell.
If Shell directors ever work up the courage to take action against the website, we will present as part of our defence an internal Shell communication dated 19 June 2009, stating: “Also, we have long decided not to take legal action against the site”
There is mention in another Shell email of “internal laundry” supplied to us by Shell insiders, which Shell apparently does not want aired online or in court.
When the SMART case eventually got to trial in June 1999, the three week hearing ended in an out of court settlement, the terms of which were deliberately withheld from the Judge, Mr Justice Laddie. This is confirmed in an email sent to me by Mr Wiseman on 17 June 1998 at 09.10 (the first email at the top of the related string of emails)
STAR TREK PROMOTION 1991