By John Donovan
I have read the judgement published online and many of the related news stories concerning the oil spill litigation brought by the law firm Leigh Day against Shell on behalf of Nigerian clients.
No one could fairly accuse the Judge Mr Justice Fraser of being biased in favour of Leigh Day. Instead, he seems to have gone out of his way to criticise them on a variety of grounds. He even complained about the volume of evidence supplied by Leigh Day.
One criticism after another, constantly coming down on the side of Shell.
A section of the Judgement, commencing on page 12, is headed in bold text: The Position of Leigh Day. It seems from this that the Judge has a particular problem with conditional fee (no-win, no-fee) arrangments between Leigh Day and its clients.
Leigh Day has attracted negative commentary in recent times, including being described as “troublemakers who are a thorn in the side of multinationals.” The law firm has also been criticised in the tabloid press and in the House of Commons over alleged conduct in the Iraq abuse inquiry.
Did the Judge let himself be unduly influenced by the negative views expressed against Leigh Day in matters that appear to have no relevance to the merits of the oil spill claims?
The Judge also accepted the argument put by Shell lawyers that Royal Dutch Shell Plc is the ultimate holding company in the Royal Dutch Shell Group and has no legal responsibility or involvement in the actions of subsidiary companies within the Group. Royal Dutch Shell Plc is said to have no employees. Just a board of directors with an executive committee.
The Judge also decided that the set up of the Group before 2005 has no relevance to the claims in question.
Strange then that for a period of years since the inception of Royal Dutch Shell Plc my correspondence across multiple subjects, involving multiple companies within the Group, was with the Chief Ethics and Compliance Officer of Royal Dutch Shell plc. Since he was not a director of the company and apparently not an employee, he must have been one of the individuals “seconded” to the so-called ultimate holding company, Royal Dutch Shell Plc.
Part of my correspondence with this ethics supremo of Royal Dutch Shell Plc (now retired) was in regard to every company, every employee and every contractor within the Royal Dutch Shell Group. Some 177,000 individuals. He represented Royal Dutch Shell Plc and all of the other parties identified in the high-security Shell database we were discussing.
He made speeches in the name of Royal Dutch Shell Plc including one on 31 March 2010 entitled “Best Practice in Combating Corruption Extortion and Bribery.” What he said in his speeches did not seem to me as coming from a separate ultimate holding company with no involvement in day-to-day operations, but actually from the operational beating heart of the Royal Dutch Shell Group.
Shell internal correspondence supplied to me in response to a Subject Access Request under the 1998 Data Protection Act suggests that companies and specialist corporate intelligence units within the group interacted and conspired in response to my website activities. Names were blanked out in the relevant Shell internal documents but I have no doubt that the unredacted documents would show that the same officer of Royal Dutch Shell Plc played a key role in the overall counter-measures activities involving him and other players within the Shell Group. All working together.
In paragraph 85 of his judgement, Mr Justice Frasier referred to the “Royal Dutch/Shell Group” in the past tense. If it has relevance, I have legal documents submitted by a Shell lawyer which confirm the ongoing importance of the Royal Dutch Shell Group as a collective entity even after the advent of Royal Dutch Shell Plc as the ultimate holding company.
In the same paragraph, there is an extract from a statement by Michiel Brandjes as Company Secretary of Royal Dutch Shell Plc: “RDS does not involve itself or otherwise intervene in the operational activities of its many hundreds of subsidiaries.”
That is untrue. CEO’s of Royal Dutch Shell Plc have intervened and were right to do so. I can provide evidence.
That fact that I own the domain name royaldutchshellplc.com – the top level domain name for Royal Dutch Shell Plc – has resulted in some confusion among outside parties interested in Shell.
In the regard, it may also be relevant that Michiel Brandjes gave me written authority to sift through incoming emails meant for Shell, removing junk mail and only passing on to him what I decided was deserving of his “appropriate attention”. The incoming mail includes job applications, business proposals, Shell pension enquiries, shareholder enquiries, complaints, invitations to speak at conferences, plus approaches from the Dutch Defence Ministry, Fox Business News, Reuters, CNBC, and even terrorist threats. Mr Brandjes or his staff dealt with all that I passed on to him and occasionally copied me on his responses. I was never ever asked to send the emails direct to relevant Shell operating companies. All of the emails I passed on went to the so-called ultimate holding company, which is clearly not as divorced from day-to-day activities as it pretends in this case.
(The amusing mix-up from the domain name continues to this day. I was contacted yesterday by a global news agency seeking comment from Royal Dutch Shell Plc on a recent Shell announcement. The email was addressed to me with a secondary copy to Shell.)
All of the above activity happened during or after 2005. If the actions of the ultimate holdings companies before 2005 do turn out to have relevance, then I can provide documented evidence of intervention from the very top of the Royal Dutch Shell Group.
Royal Dutch Shell Plc is not a detached holding company, but the company within the Royal Dutch Shell Group that has ultimate overall control and in my humble view, ultimate responsibility for the actions of its subsidiaries. It is the head of the snake.
RELATED SUBSEQUENT ARTICLE PUBLISHED 2 FEB 2017