The peace did not last for long. Shell offered information about me to a third party company that could only be construed as being damaging to my reputation. I served notice on Shell that this breach by Shell amounted to a repudiation of the agreement. Shell threatened to take related legal action, but tellingly, did not do so. Hostilities resumed with subsequent news coverage, including the above Sunday Times article.
In 2001, a third party company approached Shell to confirm that Shell would not object to the launch on the Internet of a paperless Make Money type game. My involvement as a consultant to the company was disclosed to Shell.
Shell took the opportunity to offer information to the company that could only be construed as being damaging to my reputation. I had hoped that the project would restart my career, but Shell’s intervention torpedoed that prospect.
The information Shell brought up and offered to supply to the company was the “Judges Comments.”
Since Shell’s action was in breach of the compromise settlement of the SMART litigation, I served notice on Shell that it had repudiated the agreement.
Shell initially denied this and threatened legal action, but never took the issue to court.
The subject subsequently arose again in correspondence concerning a draft manuscript that we brought to Shell’s attention in November 2002. It contained details of our relationship with Shell.
We received a response from our old adversary, Colin Joseph, who threatened us with legal action if the manuscript was published. He claimed that his law firm, DJ Freeman, was acting for the entire Royal Dutch Shell Group and all of its employees.
It seemed unlikely that anyone had sought and obtained permission from every individual Shell employee, then totalling around 100,000, to act on their behalf against us. I doubt that Mr Joseph had any legitimate authority to make that claim. I can think of many Shell employees who would not give Shell or DJ Freeman authority to represent them in such circumstances.
Extracts from a related emailed letter dated 6 December from DJ Freeman to Alfred Donovan:
You are plainly well aware of the confidentiality obligations contained in the Settlement Agreement entered into at the conclusion of the court proceedings in 1999. Your suggestion that Shell is somehow in repudiatory breach of the terms of that Settlement Agreement is completely without foundation, and was not pursued by your son at the time it was made last year.
Your proposed publication of the manuscript would amount to a most serious breach of the provisions of the Settlement Agreement, putting you in potential contempt of court, and subject to all the consequences which would flow from that. Our clients reserve all their rights in respect of any such publication.
Extracts from our reply dated 9 December 2002
Contrary to what you say, my son did at the time of the breach notify Mr Phil Watts, the Group Chairman of Royal Dutch Shell Group and Mr Malcolm Brinded, the then country Chairman of Shell UK Limited. Please read the letters faxed by my son to both gentlemen on 19th & 20th September 2001. He also notified Shell Legal Director Mr Richard Wiseman. My son decided not to take legal action at the time because of other non-related events but this does not change the fact that Shell was properly notified of its repudiatory breach. It follows that the Settlement Agreement is no longer in force. If your client disputes this, then the courts are available to settle the matter.
Response letter from DJ Freeman to Alfred Donovan dated 16 December 2002
Thank you for your e-mail of 9 December 2002. We confirm that we are instructed on behalf of all of the companies within the Shell Group as well as all current Shell employees.
I have nothing to add to what was said in my e-mail of 6 December. Shell’s position in relation to all these matters should now be perfectly clear to you, as should the risks that you would be undertaking by publication of this manuscript.
Ignoring the threats, we published the manuscript online.
Shell lawyers had huffed and puffed, but as we expected, Shell took no legal action.
We also set up a separate website initially under the domain name shellnews.net and used the Internet as a platform to focus attention on the activities of Royal Dutch Shell.
Operating under a variety of Shell related domain names, our website acted as a magnet for other parties, including current and former Shell employees, disgruntled Shell retailers, and NGO’s such as Friends of the Earth.
In 2005, Shell lawyers did issue proceedings, but in relation to domain names. Shell conceded in a related submission to The World Property Rights Organisation (WIPO) our right to use the Internet to criticize Shell. See page 11 of Shell’s Complaint to WIPO.
“The content of that site consists largely of media reports about the Royal Dutch/Shell Group of Companies, and the Respondent’s comments thereon, predominantly of a negative nature. The Complainant and the Group it represents have been aware of the site since the beginning and whilst they would not endorse or agree with many of the comments made by the Respondent on the website, they have taken the view that the Respondent is entitled to express his opinions and to use the Internet as a medium for doing so.”
Shell’s statement to the WIPO drafted by Shell lawyers and authorised by the “Group”, amounted to tacit approval/acceptance/recognition of our Shell focussed websites by Royal Dutch Shell Plc and consequently that Shell had repudiated the Smart settlement. Otherwise, any such websites operated by us would have been in breach of the settlement.
Further confirmation is implied in an internal Shell communication dated 19 June 2009, stating:
“Also, we have long decided not to take legal action against the site”
In an article published in February 2014 Mr David Bunch, Chairman of Shell Brands International, publicly acknowledged that Shell cannot control the internet, that some people will always disagree with Shell and that they should be allowed to air their views.shellplc.website and its sister non-profit websites royaldutchshellplc.com, royaldutchshellgroup.com, shellenergy.website, shellnazihistory.com, royaldutchshell.website, johndonovan.website, shellnews.net and shell2004.com are owned by John Donovan. There is also a Wikipedia feature.