By John Donovan
As can be seen from the transcript of a Drivetime segment broadcast on RTE Radio 1 yesterday evening, Shell has been cornered into making what is described as a much more robust denial of the allegations made by its former “Mr Fixit” in Ireland, OSSL.
In so doing, Shell appears to have given OSSL grounds for a defamation action.
I have redacted from the statement attributed to Shell the potentially defamatory words used by Shell and broadcast by RTE.
I am not a lawyer, but I do have experience in successfully suing Shell for libel. My late father did the same. Shell settled both actions as part of wider settlements.
If a defamation action is launched, at some point Shell would have to disclose the findings of its internal investigation and all related documentary evidence. All relevant Shell employees would be compelled to give evidence under oath and subject to perjury law. They would also be subject to cross-examination under oath.
I note that in the attributed Shell statement the invoice that was raised in 2012 is described as a “disputed” invoice, not a fake invoice.
If it is fake, why has Shell described it as disputed? Why has Shell not called in the Garda?
What exactly does Shell dispute about the content of the invoice?
I also note that Shell makes reference to its much trumpeted business principles. These were referred to in Shell’s Form 20-F submissions to the US Securities & Exchange Commission in an effort to bolster confidence in the claimed hydrocarbon reserves data, that proved to be fraudulent. Shell was fined $150 million combined by the SEC and the UK FSA for securities fraud and market abuse.
One of the core business principles is claimed to be “openness” and “transparency”.
Why then cannot Shell disclose full details of its internal review, perhaps redacting names if that is legally necessary?
Still more questions than answers.
RTE Radio 1 Drivetime Monday 19 August 2013: Unofficial Transcript
Did Shell give the Gardai alcohol?
Philip Boucher-Hayes investigates the allegations made by a sub-contractor on the Corrib project.
Audrey Carville: Now a week and a half ago allegations appeared in a Sunday newspaper that Shell Ireland had paid for and delivered tens of thousands of euro worth of alcohol to Bellmullet garda station in Mayo.
The claim was made by a former sub-contractor on the Corrib gas project and it gained some currency because neither the Gardia nor Shell issued a clear denial of the alleged events.
Well since then Philip Boucher-Hayes has been trying to establish whether these events are more apparent than real or if Shell has something to hide.
So which is it?
Philip Boucher-Hayes: In a nutshell Audrey I can find no evidence as yet that substantiates the claim that tens of thousands euro worth of alcohol was given by Shell or its agents to the Gardia.
The claim has been made as you say by a sub-contractor of Shellâ€™s main contractor on the project called OSSL.
Now OSSL was supplying personal protective equipment safety gear and the like and performing small scale contracting works for Shell in Mayo since 2005.
They claim that they purchased and that they delivered up to €30,000 euros worth of alcohol to Garda stations in Bellmullet and in Athlone in 2007 and this was to be enjoyed by the gards who were policing the Shell to Sea protestors in Christmas 2007.
They also claim that they had made smaller much smaller delivery of several thousand euros worth in 2005 and 2006.
Audrey Carville: And did OSSL offer any proof that this had happened?
Philip Boucher-Hayes: They have offered an awful lot of anecdotal detail which has, some of it has the ring of truth to it because it was particularly specific but the have offered no actual proof or what would be considered proof in a court of law anyway, no receipts, no proof of purchase of the alcohol no contemporaneous invoices to Shell or anything like that.
They would say and Shell would deny this that was how it was always meant to be that they were not meant to issue receipts or invoices which would correctly account for the alcohol as I say Shell denies that.
I do have a copy of one invoice from OSSL to Shell for the delivery of the alcohol but it wasn’t generated until nearly 5 years after the alleged delivery so it proves absolutely nothing really because the two parties OSSL and Shell were in dispute with each other about withheld tax at that stage.
Audrey Carville: So Shell and the Gardia did they respond to the allegation?
Philip Boucher-Hayes: Whatever difficulties I might have had in establishing the veracity of the OSSL claim and Shell and Garda Sheer Conners initial response to the allegations was most peculiar; both said that they could find no evidence to support the allegation, not it didn’t happen so I said that’s pretty Jesuitical frankly if it didn’t happen why can’t you just say that it didn’t happen? So I’ve been back to the Gardia and I have also sat down in Shell’s headquarters with one of its directors and its solicitor and I asked repeatedly, look just deny the allegation and as you’ll hear in a few minutes time they have in fact now given me a much more robust denial.
Audrey Carville: And we’ll hear that in a minute but just more context. OSSL did they have a grievance with Shell?
Philip Boucher-Hayes: OSSL I have said worked quite happily 2005 up to 2009 when they were told by Shell that there was going to be no more work for them on the Corrib project this was not through any fault of theirs in happened because An Bord PleanÃ¡la had effectively put the entire Corrib project in hiatus when it requested that Shell examine alternative routes so Shell literally had to go back to the drawing board and while they were at the drawing board the project was going to be mothballed nobody was going to be doing any work on the ground, which was bad news for OSSL.
They felt OSSL that is OSSL felt that hundreds of thousands of euro was owed to them in withholding tax. Shell’s advice was that OSSL’s dispute was with the revenue and not with them.
OSSL issued proceedings in the High Court then Shell invited them to mediation. Now Shell’s understanding was that the conclusion of the mediation on August the 2nd last year was full and final. And I understand that that mediation favored OSSL even though Shell’s initial position was that they had no liability to them.
But then 22 days later OSSL sent an invoice to Shell for a total of €43,000 euro including nearly €30,000 of alcohol purchases. The invoice claims to detail how OSSL on the instructions of a named Shell executive purchased the alcohol delivered to a number of named Gardai in Bellmullet and Athlone.
Now, as I have already alluded to there is no date on the invoice for when this is supposed to have happened and the invoice itself is dated August 2012, four and a half years later.
Audrey Carville: Have you managed to dig up any additional evidence that would support the claim being made by OSSL against Shell?
Philip Boucher-Hayes: Nothing as yet apart from hearsay locally. I have spoken to a number of former contractors, some people who are currently employed as Shell’s sub-contractors on the Corrib project… they all believed in 2007 that Shell was gifting alcohol to the Gardia. It was their understanding that OSSL had done this for Shell but none of them actually saw any of the alcohol none of them was involved in its transportation; nobody knew anything about it really that amounts to anything above the level of gossip and in fairness they acknowledged as much to me.
Audrey Carville: Okay back to Shell then. You say their position has changed since you begum talking to them?
Philip Boucher-Hayes: They say that the had conducted an internal inquiry into the allegations and that that internal inquiry had produced no evidence to support the claim so look I asked Shell can I see this internal inquiry please; they said no, I asked why not, they said because it contained allegations against named individuals.. who I pointed out to them with no evidence had been found to incriminate them so they were effectively exonerated so can you just not show me the report; they said no, this would run contrary to their policy they said the same policy that prevented them issuing an outright denial so I told Shell that my reporting of this story would of necessity focus on this failure to issue a denial and at my meeting with them and several times over the phone I said if you believe these events to be untrue why cant you just come out and say it.. so on Friday evening they came back to me with the following statement…
I’m quoting now:
Shell Ireland does not accept the xxxxxxx of OSSL’s allegations concerning the delivery of a consignment of alcohol to Gardia SÃochÃ¡na. Having noted that no evidence has ever been put forward by OSSL or any other party save for the disputed invoice received by Shell on 24 August 2012 (which I’ve referred to) Shell unequivocally rejects OSSLs allegations as xxxxxxxxx; such actions would constitute a serious breach of Shell Groups long established business principles and code of conduct which Shell Ireland fully commits to in the conduct of its operations.
Audrey Carville: Finally, and the Gardia, did they issue a similar kind of denial?
Philip Boucher-Hayes: Nothing as robust as Shell but then they have moved from this position of there being no evidence to support the allegations to appointing a superintendent to investigate the claims so obviously you can’t issue a denial while your in the process of actually investigating something or otherwise why would you bother investigating.
Audrey Carville: Is that the end of it all?
Philip Boucher-Hayes: No, now I told OSSL that Shell had now offered a more comprehensive denial of their claims and this afternoon Des Kane one of the two directors of the company came back to me and said he was standing by his claims that they had delivered and had not been paid for all of this alcohol from back from 2007. He told me over the phone that in 05 and 06 they had supplied small amounts of alcohol to Garda on Shell’s behalf for which they had been paid but that in 2007 he had bought one and a half transit vans full of wines and spirits which he said he still hasn’t got any money for.
Voice of Desmond Kane: Approached by Shell and asked to get Christmas festive gifts that they could distribute to the police and we did so and we bought it and stored it in our store as requested and we delivered as requested by Shell.
Philip Boucher-Hayes: Can you prove any of that?
Desmond Kane: I have no receipts I have no, I can stand up and say this is what happened; if the recipients aren’t coming forward to say they got it then you know its my word against theirs.
Philip Boucher-Hayes: Why do you not have receipts if you purchased the alcohol?
Desmond Kane: We handed over any receipts we had as we did with all purchases for Shell to Shell at the time
Philip Boucher-Hayes: Were you paid for this alcohol?
Desmond Kane: For 2005 2006 yes for 2007 no.
Philip Boucher-Hayes: Okay if you can’t provide any evidence and they deny this ever happened did anybody else apart from you and your business partner ever actually lay their eyes on this alcohol?
Desmond Kane: It would be hard for me to say exactly yes I would say that other members of Shell who were regular visitors to our premises saw saw it there and what was going on.
Philip Boucher-Hayes: Okay so there are Shell employees or Shell sub-contractors who you say might have seen itâ€¦ What about your employeesâ€¦ is there anybody else on the books at OSSL who would have seen it in 2007?
Desmond Kane: Well there was only three of us; we can all sign Affidavits that it was there and its exactly as we described
Philip Boucher-Hayes: And what was it that you described? How much alcohol are we talking aboutâ€¦ you and your business partner physically moving?
Desmond Kane: Half of a transit van full and a transit van full because we were sent back on a second occasion
Philip Boucher-Hayes: What did you buy themâ€¦ wines spirits beer?
Desmond Kane: There was a mixture of everything except beer… there was everything vodka, whisky, wines; some Champagnes but you know there was cases and cases and cases obviously of it
Philip Boucher-Hayes: Why would you have not bought beer it’s the most logical thing to buy
Desmond Kane: No no, it was to be spirits; it was to be spirits; he was fairly straightforward about that; he did not want cases of beer laying about
Philip Boucher-Hayes: Why not?
Desmond Kane: I have no idea you would have to ask Shell that
Philip Boucher-Hayes: Do you accept that in making these allegations now you have a grievance with Shell you have a grudge to bear against them and that undermines your credibility; in addition to which you can provide unfortunately no evidence for any of your allegations?
Desmond Kane: If we had paperwork this would be a very different situation; if we had a bit of integrity from the people who offered the instructions this would be a very different situation.. we can’t we haven’t got hard facts we can’t point to it its gone now.. obviously people have run for cover; the recipients won’t come forward and say you know we got that so its a hard fight ahead.. but its a fight we’ll keep on it
Philip Boucher-Hayes: The Gardia are investigating these claims now are you going to cooperate with them; have you already?
Desmond Kane: Absolutely cooperating with them and urging urgent meeting which hasn’t transpired yet.
Philip Boucher-Hayes – RTE Reporter
Philip Boucher-Hayes started writing for local newspapers in 1987 and joined RTE in 1993. He began reporting on 5-7 Live and the Gerry Ryan Show before producing the Gay Byrne Show. Philips reporting has taken him to Iraq, Lebanon, Kosovo, Latin America, Israel, occupied Palestinian Territories, Iran, Tsunami-hit South East Asia and New York for September 11th. He was Head of RTE Radio’s Investigative Unit for three years, during which time he won the PPI News Broadcaster of the Year award, having previously won The Law Society’s Justice Media Award. In 2009 Philip wrote a book with his wife Suzanne Campbell: Basketcase: What’s Happening Ireland’s Food? He has made several documentaries and series for television including What’s Ireland Eating? and Buyer Beware. Currently Philip presents Crimecall with Grainne Seoige.