CHAPTER 6: Shell Smart Trial at The Royal Courts of Justice

We suspended our website don-marketing.com before the Smart trial commenced in June 1999.

The trial actually commenced on 15th June 1999 in Court 58 on the 7th Floor of the modern air-conditioned Thomas More Building at the Royal Courts of Justice in London.

At the start of the trial the Judge, Mr Justice Laddie QC commented that it was one of the most unpleasant cases that had ever come before him, with both sides making extremely serious allegations against each other.

Personal Intervention of Judy Moody-Stuart

Days before the Smart trial commenced, a magazine published an article containing a reference to an extraordinary personal intervention by Judy Moody-Stuart, the Quaker wife of the Shell Chairman, Mark Moody-Stuart. (Now Sir Mark & Lady Judy Moody-Stuart).

Extract

The latest part of the claim has seen Donovan set up a website attacking Shell, he has also picketed the Shell Centre at Waterloo and disrupted the oil giant’s 100th Anniversary AGM. The latest bizarre development in the case is an intervention in the form of a letter from the wife of Mark Moody-Stuart, the head of Shell International. In her letter to Donovan, Judy Moody-Stuart pleads with Donovan to stop attacking her husband saying ‘I’ve had enough of reading your miserable destructive comments about a great group of people, Shell people, and their organisation’. She then urges Donovan to spend his time working for the charity Centrepoint before wishing him ‘good luck in coming to terms with the world.’

Her well-meaning intervention, which had a significance that will become apparent, was brought to the attention of the trial judge, Mr Justice Laddie who was appointed to hear my case against Shell and Shell’s Counterclaim against Don Marketing, my father, and me.

PRESS COVERAGE

A number of news articles were published to coincide with the start of the trial.  Examples are provided.

An article by Simon Rines and Sylvia Pfeifer published by The Sunday Business newspaper on 6 June 1999: “Donovan takes Smart case against Shell to court

An article by David Harrison published by The Sunday Telegraph on 6 June 1999: “Promotions expert claims Shell stole his Smart card idea

A Marketing Magazine article by Neill Denny published 10 June 1999 under the headline: “Shell faces court battle on its Smart scheme

An article published by The Times on 16 June 1999: “Ideas man sues Shell

East Anglian Daily Times article on 16 June 1999: “Oil giant stole my promotion idea, alleges businessman

Front page lead article published by the Bury Free Press on 18 June 1999: “INTO BATTLE WITH SHELL

At the start of the trial on 15 June 1999, the Judge, Mr Justice Laddie, commented that it was one of the most unpleasant cases that had ever come before him, with both sides making extremely serious allegations against each other. He forecast that whatever he decided, his verdict would be appealed and would ultimately end up in the European Courts.

He made it plain he would ideally like the parties to try to discuss settling the case without the trial continuing to a judicial decision. He hoped discussions would take place.

My impression was that the Judge was uncomfortable about the glaringly obvious lack of a level playing field between the parties in litigation, bearing in mind that he was also supposed to decide the counterclaims brought by Shell.

Don Marketing had stopped functioning as a normal business and had no assets. However, the legal process required that someone should represent the company in Court. An unpaid teenager, Nick Gill, the IT friend I mentioned earlier, who had no legal qualifications whatsoever, was press-ganged into the role. My then 82-year-old father, with no legal representation at all and in poor health, was supposed to defend himself.

No wonder the Judge was pushing for a way out of having to hear and deliver a verdict on a trial taking place in such unequal, farcical circumstances.

As already explained, both my father’s legal aid and mine had been withdrawn on erroneous grounds. We applied for judicial review of the revocations but the trial took place before the judicial reviews could be arranged.

Basically, I had been placed in the position of either abandoning the litigation or giving my legal team a charge over my home. I chose the latter. In other words, I bet my house on the outcome unaware, as will be revealed later, that the judge appointed to hear the case had undeclared connections with Shell.

I could not afford to hire a Queens Counsel nor even a lead barrister specialising in Intellectual Property law. Instead, I retained a criminal law barrister, Mr Geoffrey Cox, to lead my legal team.

The calibre of Geoffrey Hobbs QC, the IP specialist who headed Shell’s legal team, can be judged from the following extract of a LegalWeek.com article by Dominic Carman published 6 October 2005 under the headline “Hot Property”:

A silk since 1991, of leading commercial set One Essex Court, Geoffrey Hobbs QC has enthusiastic support from several firms. His encyclopaedic knowledge of trademark law is widely acknowledged. One partner comments: “[He is] possibly the cleverest man in England – or at least at the IP Bar.”

Richard Wiseman, the then Legal Director of Shell UK, attended court on a daily basis.

A parade of people gave evidence under oath in the witness box, including a Mr John Armstrong-Holmes who confirmed in his witness statement the horrendous similar experience he had in dealings with AJL. I tracked him down from discovery documents disclosed by Shell.

AMBUSH & ENTRAPMENT

When my time came to give evidence the lawyers acting for Shell sprung an ambush in court, using outright deception in an attempt to entrap me at the climax of my cross-examination.

Partly in stage whispers just loud enough for the Judge and me to hear (but not picked up in their entirety by the court transcriber) Shell’s solicitors discussed with the lead Shell barrister, Geoffrey Hobbs QC, the pending arrival at The Royal Courts of Justice of a motorbike messenger supposedly on the way from Sainsbury’s, the supermarket group. The messenger was said to be bringing evidence, which by implication, would prove that I had forged correspondence with Sainsbury’s. The motorbike would not arrive until 2 pm at the earliest.

The Judge was fascinated and gave encouragement to what was going on. I assume the judge was unaware of the deception. See pages 89 to 96 inclusive from the official transcript of the Donovan v Shell trial.

This is what Mr Justice Laddie said to Geoffrey Hobbs QC, the lead barrister acting for Shell:

Yes. Would you like me to rise for five minutes? I have very acute hearing. I am deliberately not listening, but I am also immensely inquisitive and I am finding it hard. Would you prefer me to rise? 

Mr Hobbs may also have been unaware that he was being used in a deception perpetrated by the instructing solicitors, DJ Freeman.

In fact, there was no motorbike, no messenger and no evidence. It was all an outright fabrication and deception. A theatrical performance designed to frighten, deceive and entrap.

In a subsequent related exchange between the judge and Geoffrey Cox on 22 June, Cox pointed out that Shell had previously admitted having the documents in question. See pages 49 to 52 inclusive of the official transcript.

Despite this admittance, a Shell lawyer at the trial apparently came up with the theory that the relevant correspondence did not exist at the time of my dealings with AJL and that I had created/forged them at a later date.

Cox complained bitterly about what he correctly described as an ambush. The Judge described the trial as being dreadful and the accusations about the documents as being “a load of old tosh”.

The trial was suspended after my barrister strongly objected to what was going on.

A team of lawyers acting for the court, travelled overnight to my home in Bury St Edmunds, arriving early in the morning and carried out an extensive search lasting all day.

This was of course extremely upsetting to my family, particularly my mother who had been diagnosed with Alzheimer’s. All of my files stretching back decades were taken away.

Not all were returned. The original handwritten letter to me from Mr Paul King (a predecessor of AJL as Shell National Promotions Manager) in which he expressed reservations about Shell, was never returned.

The Sainsbury’s correspondence in question was subjected to forensic examination by Dr Audrey Giles, an expert in the scientific examination of documents and handwriting. See report dated 28 June 1999 by Dr Audrey Giles.

Dr Giles could not make any firm determination because the documents were not first generation copies and Sainsbury’s had destroyed the originals.

No evidence of any wrongdoing was found because none existed.

In his cross-examination on 1 July, AJL said in relation to the correspondence that seeing the letters in the months before the trial seems to jog memories. Nothing more than that. It seems to come back to me that it may have been mentioned in passing.See pages 173 to 176 inclusive from the official trial transcript.

He then described this as “only a dim recollection“, before reverting to his early denials. His dim recollection is to my mind further confirmation that the correspondence existed at that time, as also confirmed by other witness testimony given under oath.

It is also relevant to note that Shell did not subpoena the Sainsbury’s executive who engaged with me in the correspondence. He was contacted. I can only speculate that he was unwilling to testify that the correspondence never took place. To do so would have been untenable bearing in mind that the correspondence included an original letter that he sent to me. I still have it.

What it boils down to is that there was no evidence to support the forgery allegations. There was, however, original evidence confirming that we did approach Sainsbury’s on behalf of Shell.

I would have thought that attempted entrapment supported by no credible evidence and involving entirely fake information being given to the witness under cross-examination (me) and to the judge, would not be allowed even in a criminal trial.

I was disgusted with the deceptive tactics used by Shell and apparently condoned by the Judge who, as far as I know, took no action against those responsible.

I was shocked to read on page 2 of the Defence & Counterclaim that Shell denied that we had originated “Star Trek: The Game,” claiming instead that we had merely assisted Shell to develop a pre-existing concept.

I can only assume that Shell’s lawyers had not read a front page lead story in “Promotions & Incentives” magazine published in July/August 1991: “Will Shell’s intergalactic experiment pay off?

The headline of the main article was “Hang on! I’ve got a new idea…” It went on to state “Star Trek was Donovan’s idea.”

The extensive detailed coverage, which stretched over several pages, included comment from a Shell executive.

It provided a detailed contemporaneous account from1991 of how I set up a licensing deal in principle with Paramount Films (via their Senior VP Jonathan Zilli) before I had even disclosed the idea to Shell.

When I did do so, Shell immediately abandoned the promotion it had intended to run and switched to our unique Star Trek themed game. The game concept was totally unknown to Shell until I disclosed it to them.

How could the truth get so twisted?

Article published by The Sunday Telegraph on 6 June 1999.

Promotions expert claims Shell stole his Smart card idea

by DAVID HARRISON

Pump action: John Donovan has fought Shell for six years

A BUSINESSMAN who claims Shell stole his ideas for its internationally successful Smart card promotion scheme, is this week launching a multi-million pound lawsuit against the oil company.

If John Donovan wins he stands to collect millions. If he fails he will lose everything – including his home.

The case – alleging breach of contract and misuse of confidential information – opens in the High Court on Thursday and is expected to last three weeks with costs running up to £1 million.

Mr Donovan, 52, says that Shell took his ideas – which he gave to it in confidence – and developed them without consulting or paying him.

“I want what I am entitled to and I want the world to see that Shell is not the company it claims to be in its glossy propaganda brochures,” he said.

Shell denies the allegations and is counter·claiming £100,000 for breach of a confidentiality agreement.

Richard Wiseman, its legal director, said Mr Donovan was “misguided” and had been wrongly encouraged by Shell’s previous payments.

Mr Donovan has received £60,000 and another substantial undisclosed sum in settlements from Shell after claiming the theft of other ideas.

Mr Wiseman said Mr Donovan’s expertise was no longer appropriate for the type of promotions Shell was doing.

The court case is the culmination of a six·year campaign by Mr Donovan and his father, Alfred, 82, which has seen them picket Shell’s London headquarters and buy two Shell shares each to give them access to annual general meetings.

At risk in the latest action is their detached home near Bury St Edmunds, Suffolk.

The Donovans began devising promotion schemes in the late Sixties when Mr Donovan senior owned a chain of petrol stations in East London and Essex.

In 1981 they struck their first deal with Shell for a “Make Money” promotion scheme – in which petrol purchasers had to find two matching halves of a “bank-note”. Shell gave them £500 to help to develop the idea.

The scheme was a success and others followed: a £4.5 million Mastermind promotion; a scratch card game offering £2·5 million of food prizes from Harrods; a card game endorsed by Bruce Forsyth; and a £4’5 million Star Trek promotion.

“We were putting up ideas in confidence,” Mr Donovan said. “We both respected that. We worked exclusively with Shell on a handshake basis.” Mr Donovan’s company, Don Marketing, was paid about £50,000 for each idea plus a percentage of printing costs and other fees.

But the relationship changed in 1992 when Shell appointed a new national promotions manager, he said.

In April 1994, Mr Donovan issued a writ against Shell over the use of a “Make Money” scheme. He threatened to sue each of Shell’s 2,000 forecourt businesses.

He accepted a £60,000 settlement and continued to fight Shell over a Nintendo promotion and a film promotion called “Now Showing”.

The Donovans formed a pressure group, The Shell Corporate Conscience Pressure Group. In October 1996 Shell paid another, larger, sum to settle the outstanding claims.

In March 1997, when Shell launched the Smart loyalty card, an ambitious promotion involving companies such as Woolworth and British Airways, Mr Donovan claimed that it was almost identical to a scheme he had first proposed in 1989. He claims that the oil company took an option on it in 1990.

He also alleges that Shell used an undercover investigator, Christopher Phillips, to look into his financial affairs. Shell’s lawyers admit that they hired Mr Phillips, but only to carry out “routine credit inquiries”.

ARTICLE ENDS

royaldutchshellplc.com and its sister websites royaldutchshellgroup.com, shellnazihistory.com, royaldutchshell.website, johndonovan.website, shellnews.net, shell2004.com, shellshareholders.org, don-marketing.com and cybergriping.com are all owned by John Donovan. There is also a Wikipedia article: royaldutchshellplc.com