It became increasingly evident to me when the SMART trial began that the much-respected Judge, the late Mr Justice Laddie (above) was not impartial. That conclusion was reinforced in the “Judges Comments.” These were ill-informed remarks the Judge insisted on making about me after being deliberately misled by Shell about the true terms of a settlement of the case negotiated by the parties involved.
I later discovered to my horror that the judge had disturbing undeclared connections with Shell, which gave rise to a concern over the possibility of unconscious bias.
I do not pretend that my own views on the subject of this chapter are independent and unbiased. I have therefore supplied information and evidence in support of what I say so that readers can decide for themselves whether I have legitimate grounds to be concerned.
Although aware of both matters, the Judge expressed not the slightest interest in the burglaries or the uncover activity admitted by Shell. He actually quoted from a letter from me published by Marketing Week magazine on 25 February 1999, in which the undercover activity was mentioned.
TEXT FROM MY LETTER TO THE EDITOR
Judge Shell by actions not words
I read with interest your editorial about the ethical dilemmas facing multinationals and the reference in particular to Shell’s recent public relations disasters. You say that “Shell has apparently learned its lesson”. I beg to differ.
My claim against Shell UK in respect of the Smart loyalty scheme is set down for a three week High Court trial in June.
I invite Marketing Week to attend the trial. You will then be able to make an informed assessment of Shell’s ethical conduct after sensational evidence is put into the public domain.
Don Marketing, the agency I founded, has successfully sued Shell three times in recent years for allegedly stealing business ideas that we put to the company in the strictest confidence. Shell settled out of court each time.
During the current litigation, Shell has employed undercover investigators who have used outright deception in the course of their activities.
I have a letter from Shell’s legal director, Richard Wiseman, admit- ting Shell’s association with the covert activities (copy available on request).
I would respectfully recommend that you wait for the emergence of evidence in the coming trial before making further comments about Shell’s reformed ethical conduct. We must judge Shell by its deeds, not by its words.
Founder of Don Marketing UK Bury St Edmunds Suffolk
The Judge condemned the letter and made clear his strong objections to our “high profile campaign,” listing our activities in this regard, including operating websites. All of this was in his view disgraceful (even though perfectly legal). He was part of the establishment. We most definitely were not. Such campaigning was not the done thing. This was the impression I got from his caustic comments.
These remarks were in the “Judges Comments” – comments made by Mr Justice Laddie when he was supposedly going to “rubber stamp” a settlement agreed between the parties.
I was told that it was not necessary to attend court in relation to the settlement since it was just a formality. Hence, I was not there to hear what the judge said and only obtained a transcript of his comments years later after Shell director Richard Wiseman brought them to my attention.
I did know from Richard Woodman that there was some heated discussion between the Judge and Geoffrey Cox on that last day in court, but until Mr Wiseman mentioned that he had a copy of a transcript of the “Judges Comments”, I was not aware of their existence.
Since the case had been resolved in a “compromise settlement” the Judge was not required to deliver a verdict but insisted on making comments about me, even though I was not there.
If he had delivered a verdict in Shell’s favour, I would have been legally entitled to ask for leave to appeal. There is apparently no right to do so in respect of “Judges Comments”. That is plainly wrong.
By the time of making his Judges Comments, Mr Justice Laddie had apparently decided that the accusations were not all tosh. The Judge said he was considering calling in the Director of Public Prosecutions because he thought that the allegations about me made in court by Shell’s QC (later withdrawn by Shell) had more than passing strength to them.
He also said that AJL “worked hard for his employer and put its commercial interests before the interests of outside firms.”
This seems to be a reference to AJL’s Machiavellian “Keep Rejects Holding” plan found in discovery documents. An outright conspiracy, led by AJL, to scam a group of outside firms into investing more time and disclosing more proprietary information to Shell, in the false expectation, deliberately dangled by AJL, that they were still in the running for a Shell Smart contact.
The scheme was totally unethical, possibly illegal and completely at odds with Shell’s claimed business principles.
Why would the Judge praise AJL for such dishonest conduct in its dealings with outside firms?
As can be seen from the transcript, there was a heated exchange between the Judge and my lead barrister, Geoffrey Cox, who happened to be a criminal law specialist. It is clear from the explosive exchange recorded in the court transcript that the Judge was blatantly biased against me.
According to Geoffrey Cox, the row over the Judges Comments continued in the Judge’s chambers. This is when the Judge found out that he had been badly misled.
Shell had withheld the true terms of settlement from him. This is confirmed in an email sent to me by Richard Wiseman on 17 June 2008 – part of a related string of emails providing details of the overall background circumstances. I did not know that the settlement terms disclosed to the Judge were selective and deceptive.
When discussing the settlement terms with the Judge, Geoffrey Hobbs QC is on record in the transcript as saying: “…your Lordship has seen the paperwork.” It turns out that this was untrue. Part of the paperwork was secretly withheld.
At the time of making his injudicious comments, the Judge was totally unaware that Shell had paid my legal fees and that I had received a secret payment. He probably thought I had surrendered when in fact it was the other way round. I would not agree to settle without at least a token, but not insubstantial payment.
He did see the DEED OF COMPROMISE and its annexe’s 1, 2 and 3, two of which were Orders and the third item a press release. Both Orders indicated that there was no order “as to costs.” The document kept secret from the Judge contained the following clause: “The parties undertake to keep this Deed and the contents (including the fact of a payment being made) confidential to the parties and their professional advisors save that disclosure may take place under compulsion of law.”
I had no idea the all-important secret deal was kept from the Judge.
Shell paid my legal costs and I received a settlement payment. A totally different outcome than was indicated to the Judge, who had already admitted, as recorded in the previous chapter, that he had lost control of the trial.
The Judge was also unaware when making his biased comments of a material omission by Shell, which seriously undermined the trial. Richard Wiseman, the Legal Director of Shell responsible for the litigation and who attended court almost every day of the trial and was responsible for the Counterclaim Shell brought against us, had not disclosed crucial evidence relating to the Counterclaim.
The “PARTICULARS” section of the Counterclaim listed information published by us as part of our campaigning activities. Shell provided examples to the Judge.
However, Shell withheld from the Judge important items of evidence proving that Shell had published material attacking us.
Firstly a so-called “factsheet” published and circulated to Shell staff in November 1998 by “Shell U.K. Limited Public Affairs UKCM and Legal UKLG” under the headline: “DON MARKETING: THE FACTS.” The text alleged that I had acted dishonourably. As can be seen via the link, a substantial part of the factsheet supplied to me by Shell years later in response to a Subject Access Request (SAR) under the UK Data Protection Act, was redacted by Shell. It may well have contained further defamatory comments falsely presented as fact.
Secondly, a magazine article penned by Richard Wiseman (in his capacity as Legal Director of Shell) was, unbeknown to us, published in a Shell magazine in November 1998.
These vital items of evidence were not disclosed to me by Shell in the Counterclaim proceedings. This was a breach of discovery rules. Neither appears in the list of evidence.
This non-disclosure was important in the context of the comments made by Mr Justice Laddie, which made it clear he had taken exception to the aforementioned letter I sent to Marketing Week magazine that the editor decided to publish on 25 February 1999.
My letter was brief, taking up less than 20% of a magazine page, and was not defamatory. If it had been, Marketing Week would never have published it. In comparison, the whole page article by Richard Wiseman in a Shell magazine was devoted exclusively to me and the content was undoubtedly defamatory, accusing me of being dishonourable and of smearing AJL. It was published months before my letter to the Editor of Marketing Week.
Under the circumstances, it is easy to understand why Shell did not disclose the existence of the article by their Legal Director as they were legally obliged to do.
The non-disclosure by Shell of the most important element in the settlement terms (who paid who) and the withholding by Shell of absolutely crucial evidence, misled the Judge by creating a completely erroneous picture of the true circumstances.
It is worth bearing in mind the following observation attributed to Sir John Donaldson:
“Litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information [emphasis added], it cannot achieve this object” (Davies v Eli Lilly & Co  1 All ER 801). See “All cards on the table” – the litigant’s duty of disclosure and inspection.”
For reasons that I will explain, I agreed to an unsatisfactory outcome, including a so-called joint press statement announcing a stalemate outcome, the content of which was deliberately contrived by Shell to deceive the media.
There were a number of articles published about the outcome, all based on the false information in the press release designed to portray Shell in a favourable light. As per previous settlements with Shell, nothing was what it seemed.
East Anglian Daily Times article 7 July 1999: “Stalemate for marketing firm’s ‘stolen’ idea claim”
Marketing Week article 8 July 1999: “Don ends legal proceedings against Shell UK”
Bury Free Press article 9 July 1999: “Shell claim is settled”
Marketing Magazine article 28 July 1999: “Shell has settled out of court with John Donovan”
Debrief newsletter published July 1999: “SHELL IN HIGH COURT SUIT OVER SMARTCARD SCHEME”
Forecourt Trader article August 1999: “Shell action abandoned”
Incentive Today July/August 1999: “Don and Shell end Smart row” (the article suggests the settlement may have cleared the way for a Shell-Texaco merger).
I was informed that Moody-Stuart had personally approved the settlement. The full set of settlement documents may have also been withheld from him and his senior management colleagues, just as they were from the Judge. My solicitors represented me in the negotiations. I only know what I insisted upon as a last-ditch negotiating position, what I was told in response, what was set out in writing, and what I received into my bank account.
I agreed to the compromise settlement purely because of the immense pressure put on me as a result of Shell’s machinations, with the dire possibility of Shell ending up as my main creditor. It was the second or third “peace treaty” settlement offer made by Shell during the trial. It came when the cross-examination of AJL was in progress and about to reach a climax.
I took into account my assessment that Mr Justice Laddie was hostile. At the time, I did not know why.
It was only later that we discovered that the Judge had undisclosed connections with Shell, including with the son of the Royal Dutch Shell Group Chairman, Sir Mark Moody-Stuart.
Because of the handwritten letter my father received from the wife of Sir Mark, which was handed to Mr Justice Laddie at an early stage in the trial, he was aware that the Moody-Stuart family had become involved in the litigation, but did not disclose that he personally knew Tom Moody-Stuart. Both had worked at the same chambers.
In November 2002, we wrote to the Judge via his Clerk, Mr Peter Smith, concerning a possible conflict of interest in respect of his connection with Tom Moody-Stuart, but as can be seen in the email correspondence, the judge refused to enter into correspondence or comment on the matter.
In May and June 2004 we undertook several initiatives.
On 20 May 2004, we wrote a letter to Lord Falconer, the Lord Chancellor outlining events and requesting an investigation. We were informed in a reply that his department could not comment on individual judicial cases and suggested we should seek legal advice. We published the correspondence and a related sworn affidavit on the Internet.
On 26/27 June we sent emails to every UK MP on the subject of “HAKLUYT – THE COMMERCIAL ARM OF MI6.”
We provided a link to our letter to Lord Falconer complaining about the conduct of Mr Justice Laddie.
We received many responses including one from the Intelligence & Security Committee on behalf of Rt. Hon Ann Taylor MP advising: “the contents of your email have been noted and will be drawn to the attention of the other Committee members.”
On 2 June 2004, we faxed a letter to Christopher James, a former SAS/MI6 officer and co-founder of the corporate espionage company Hakluyt & Company asking if Hakluyt had been involved in Shell’s spying activities against us.
Bizarrely, we received a response from a lawyer at The Church of England, Mr Mike Webster, who discovered our letter on a fax machine in their legal department.
This is the astonishing email correspondence on 6 July 2004, which contains a reference to a related telephone conversation between Mr Webster and me. He thought our letter had been faxed to the Church of England in error.
It turned out that the then head lawyer at The Church of England, Sir Anthony Hammond KCB QC was a director, shareholder and legal counsel at Hakluyt. He had been asked to draft a reply to our letter. The matter was obviously deemed of sufficient importance to require his lawyer skills. Why would that be the case if Hakluyt had no involvement?
We naturally brought this astonishing development to the attention of the head of the Church of England, Her Majesty Queen Elizabeth II. See our letter dated 7 June 2004.
We supplied copies of related correspondence including the letter to the then Lord Chancellor complaining about Mr Justice Laddie. Buckingham Palace replied on behalf of Her Majesty stating that we were “quite correct to write to the Archbishop of Canterbury and to Lord Falconer.”
We received an acknowledgement letter on behalf of the Archbishop of Canterbury on 22 June 2004.
On 13 January 2005, we circulated a further email to MP’s, once again raising the subject of Mr Justice Laddie and his conduct.
During this same period, we were also in extensive correspondence about Mr Justice Laddie, Shell and related matters with the then Prime Minister Tony Blair via 10 Downing Street (and various government departments).
Our emails to MP’s, correspondence with the Intelligence & Security Committee, Church of England, Buckingham Palace, Canterbury Palace, and 10 Downing Street, were all published on the Internet.
Thus, Mr Justice Laddie was well aware of our views and was placed in a very difficult position, with his credibility and reputation being publicly called into question and at the highest levels of the state. The various correspondence on the subject ended on 21 April 2005.
By coincidence or otherwise, just eight weeks later, Mr Justice Laddie resigned as a Judge in mysterious controversial circumstances (June 2005).
(Within weeks of his resignation, Shell used his Judges Comments in WIPO proceedings Shell brought against my father. The reference was made in an attempt to denigrate us – a further violation of the so-called peace treaty if it had still been in force. Shell lost the WIPO case.)
As a result of the press coverage about his abrupt resignation, we became aware that that Laddie had an even stronger connection with Shell that he had not disclosed.
To our astonishment, he joined the IP consultancy firm of his long-time friend Tony Willoughby, which had Shell as a long-term client.
Shortly thereafter Professor Sir Hugh Laddie was a speaker at a seminar organised by Shell Legal Director Richard Wiseman.
Doubts were raised about the reason the judge gave for his resignation (boredom), which caused a sensation in legal circles. See the obituary published 3 December 2008 by the Telegraph.
John Walsh, a writer for The Independent newspaper asked, “What is one to make of the behaviour of Sir Hugh Laddie, better known as Mr Justice Laddie…”
Mr Justice Laddie was the first High Court Judge to resign for 35 years. He certainly seemed to have something on his mind.
Tragically he passed away in 2008 as a result of cancer. It was clear from tributes made at the time that he was a much liked and widely respected Judge.
I have no doubt that he was a decent man of high integrity with immense knowledge and expertise, fully deserving of the tributes made to him by family, friends and colleagues.
Having acknowledged all of that, I have to say that I would never have agreed to Mr Justice Laddie hearing the case if I had known of his undisclosed Shell connections. There is not just the consideration of outright bias, but unconscious bias.
As for Tony Blair, his apparent intervention came to nought. Unbeknown to me, at the time we were in contact with his office, Blair was lobbying Libyan dictator Gaddafi on behalf of Shell.
The oil giant even drafted a letter for Blair to send to Gaddafi.
Extract from the relevant Daily Mail article:
Lobbying: Shell is said to have dictated what Tony Blair said to Colonel Gaddafi in order to seal a £325million deal with Libya.
Extract from a related article in The Times by David Robertson published 27 April 2010:
While it is common for government ministers to champion British interests abroad, Shell’s draft reveals an unusual assurance in its ability to dictate Mr Blair’s conversation with the Libyan leader. It also raises questions about the motives behind Britain’s improved relations with Libya and the subsequent release of Abdul Baset Ali Al-Megrahi, the Lockerbie bomber. Lockerbie victims have claimed that the Government paved the way for al-Megrahi’s release as part of a deal with Libya to give British companies access to Libya’s lucrative oil and gas industry.
Tony Blair, titled Shell directors, High Court Judges and the like are all fully paid-up members of the UK establishment. An elite club of which we have never been members.
My guess, from his condemnation of our unconventional campaigning tactics, is that Mr Justice Laddie regarded us as upstart outsiders who did not play by the unwritten rules of the old boy network.
If that was his view, it was correct.
My solicitor, Richard Woodman, did warn me at an early stage in the litigation that a Judge would likely frown on our campaigning as showing a lack of decorum. His warning proved well-founded.
I was not, however, prepared to sit back and leave it all to the lawyers bearing in mind the mounting horrendous costs involved.
That would have suited Shell, who would have dragged out proceedings even longer than they did, to drain the resources of a financially weaker opponent.
I provided encouragement for the litigation to proceed without the delay which would have otherwise put Shell at an advantage.
An article published by The Observer on 18 August 2018, provides an example of a Judge stepping aside to avoid any perceived conflict of interest, as Professor Laddie should have done.
Chapter 7 was updated on 31st October 2018. By this date, Geoffrey Cox had become UK Attorney General Rt Hon Geoffrey Cox QC MP. After a spectacular turn as the warm-up act for Prime Minister Teresa May at the October 2018 Conservative Conference.
BBC News 3 Oct 2018:
Geoffrey Cox wows Tories with warm-up act for PM
Daily Express: 3 Oct 2018:
The Spectator Oct 2018
DevonLive: 4 Oct 2018
The Guardian 6 November 2018