Royal Dutch Shell Group .com
PART 5: ROYAL DUTCH SHELL DEFAMATION ACTION IN RESPECT OF POSTINGS ON THIS WEBSITE: IMPRISONMENT OR FINE? : MONDAY 27 MARCH 2006
By Alfred Donovan
This is the final part in a series of five articles
relating to the defamation action which EIGHT Royal Dutch Shell companies
have collectively brought against Shell whistleblower Dr John Huong in respect of postings on
this website under his name.
In parts 1 to 4, we published the letter from TH Liew (the lawyers acting for Shell) and the accompanying "NOTICE TO SHOW CAUSE" which they served on Dr Huong on Wednesday, 15 Match 2006 notifying of Shell's intention to issue contempt of court proceedings punishable by imprisonment or fine.
Since I am named in the proceedings and have played the key role in the various internet publications at the heart of the case, I was asked by Dr Huong and his lawyers to supply an Affidavit testifying to the facts. Extracts from my draft Affidavit were inserted into the first four articles.
I will now publish my comments on some primary issues covered by the Plaintiff group of EIGHT Royal Dutch Shell companies in their recent REPLY to the DEFENCE filed by Dr Huong. We have already published both documents. However, for ease of reference, I have republished Shell's entire REPLY again and have inserted my comments printed in red. All yellow highlighting is mine. All underlining is by Shell lawyers, TH Liew.
HIGH COURT OF MALAYA AT KUALA LUMPUR
(CIVIL DIVISION) SUIT NO. S2-23-41-2004
1. SARAWAK SHELL BHD (719784V)
2. SHELL MALAYSIA TRADING SENDIRIAN BERHAD (6078-M)
3. SHELL REFINING COMPANY (FEDERATION OF MALAYA) BHD (3926-U)
4. SHELL TIMURSDN BHD (113304-H)
5. SHELL EXPLORATION AND PRODUCTION MALAYSIA B.V. (993963-V)
6. SHELL OIL AND GAS (MALAYSIA) LLC (993830-X)
7. SHELL SAB AH SELATAN SDN BHD (228504-T)
8. SABAH SHELL PETROLEUM COMPANY LTD (993229-W) PLAINTIFFS
HUONG YIU TUONG DEFENDANT
The Plaintiffs file this Reply without prejudice to their rights to apply to strike out the Defence or parts of it on the grounds that they are scandalous, frivolous, vexatious or otherwise an abuse of the process of the court or under the inherent jurisdiction of the court.
1. Except for what is expressly admitted, the Plaintiffs join issue with the Defendant on his Defence.
2. The Plaintiffs make no admission on the matters raised in paragraph 6 of the Defence.
3. Paragraphs 10, 12 and 14 of the Defence are denied.
4. As regards paragraph 15 of the Defence, the Plaintiffs aver and will contend as follows:
4.1. The Defendant was dismissed from his employment with the 1" Plaintiffs for misconduct after a domestic Inquiry. Paragraph 11 of the Statement of Claim is repeated.
4.2. The decision of the Domestic Inquiry has not been set aside and/or varied and remains in full force.
4.3. Regardless of the outcome of the Defendant's application before the Industrial Court in matter no. 8/4-1377/04, such outcome will not constitute a justification of the defamatory statements made by the Defendant of the Plaintiffs and referred to in the Statement of Claim.
Except for the above, paragraph 15 of the Defence is denied.
5. As regards paragraph 16 of the Defence, the Plaintiffs aver and will contend as follows without prejudice to their rights to apply to strike out the entire paragraph and/or parts of it on the grounds that they are scandalous, frivolous, vexatious or otherwise an abuse of the process of the court or under the inherent jurisdiction of the court:
5.1. The allegations of misconduct and impropriety made in paragraphs 16.1 to 16.14 are denied.
5.2. The allegations made in paragraphs 16,1 to 16.14, even if true, which is denied, do not constitute justification, as alleged or at all, of the defamatory imputations alleged in paragraph 14 of the Statement of Claim.
Except for the above, paragraph 16 of the Defence is denied.
6. As regards paragraph 18 of the Defence, the Plaintiffs aver and will contend as follows:
6.1. Paragraph 18.1 is denied. The Plaintiffs aver and will contend that the Defendant published his email/letter of 14.5.04 was published to the world at large in the ‘Whistleblower No 2' website and/or the www.shell2004.com website.
6.2. Paragraph 18.2 is denied. Paragraph 6.1 of this Reply is repeated.
6.3. Paragraph 18.3 is denied. Paragraph 6.1 of this Reply is repeated.
6.4. Paragraph 18.4 is denied.
6.5. Paragraph 18.5 is denied.
Except for the above, paragraph 18 of the Defence is denied.
7. As regards paragraph 21 of the Defence, the Plaintiffs aver and will contend as follows;
7.1. Paragraph 21.1 is denied.
7.2. Paragraph 21.2 is not admitted.
7.3. The physical location of the computer server, which is not admitted, is irrelevant to the jurisdiction of the High Court of Malaya. Paragraph 21.3 is therefore denied.
7.4. The Plaintiffs aver and will contend that the publication on the 'Whistleblower No 2’ website and/or the www.sheII2004.com website was by the Defendant.
7.5. Further or in the alternative, the publication on the 'Whistleblower No2’ website and/or the www.shell2004.com website constituted republication by the Defendant through third parties, whether Alfred Ernest Donovan and/or John Alfred Donovan or otherwise, with his authority and/or knowledge and/or intention that it would be republished.
7.6. Paragraphs 21.3 to 21.9 are therefore denied.
Except for the above, paragraph 21 of the Defence is denied.
8. Paragraph 22 of the Defence is denied.
9. As regards paragraph 23 of the Defence, the Plaintiffs aver and will contend as follows without prejudice to their rights to apply to strike out the entire paragraph and/or parts of it on the grounds that they are scandalous, frivolous, vexatious or otherwise an abuse of the process of the court or under the inherent jurisdiction of the court:
9.1. Paragraph 23.1 is denied. The Plaintiffs repeat paragraph 5 of this Reply.
9.2. Paragraphs 23.2 to 23.28 are not allegations against the Plaintiffs and as such, are totally irrelevant as a defence to the Plaintiffs' claim. In any event the Plaintiffs deny that the allegations made in them, which are denied, are capable of constituting the defence of justification as alleged or at all.
Paragraph 23.2 referred to the reserves fraud; paragraph 23.3 referred to the reserves fraud; p 23.4 referred to threats by UK shareholders in RD Petroleum to sue Shell in relation to tax liabilities arising from the unification into Royal Dutch Shell Plc; p23.5 referred to current and former senior executives of the Shell Group facing a USA criminal investigation; P23.6 referred to the Brent Bravo Public Inquiry; p23.7 referred to the USD 90 million settlement in respect of a class action lawsuit in relation to the reserves fraud; 23.8 referred to a USD $9.2 million settlement by Shell of a shareholder derivative action resulting from the reserves fraud; p23.9 referred to the class action against Shell in relation to the reserves fraud brought by the Pennsylvania State Employee Retirement System and others; p23.10 refers to a class action brought against Shell in respect of its activities in Ogoniland, Nigeria, allegedly resulting in extrajudicial murder and other "crimes against humanity"; p23.11 referred to a class action lawsuit against Shell resulting from the reserves fraud involving 26 plaintiffs, mostly Dutch Pension Funds; p23.12 referred to USA legal proceedings against the Shell Group and named senior executives for remedies under federal securities law relating to the reserves fraud; p23.13 referred to other various legal proceedings in the USA in relation to the reserves fraud; p23.14 referred to 4 UK court proceedings against the Shell Group companies brought by Alfred and John Donovan which Shell settled; p23.15 referred to a UK court proceeding brought by Alfred and John Donovan against Shell Group companies in respect of breach of terms of a mediation agreement which Shell settled; p23.16 referred to a libel action which Alfred Donovan brought against Shell Group companies which Shell settled; p23.17 referred to a later libel action brought by John Donovan against Shell Group companies which Shell settled; p23.18 referred to the admission by Shell Group companies of hiring a private security firm which engaged in undercover activities against A & J Donovan during the course of litigation between the parties; 23.19 referred to the admission by Shell Group companies of hiring a private security firm which engaged in undercover activities against environmental groups active in the UK and other countries; p23.20 referred to a UN fine against the Shell Group when an oil tanker violated the international trade embargo against Iraq; p23.21referred to a prosecution against the Shell Group by the US Justice Department in respect of evasion of royalties which Shell settled; 23.22 referred to an accusation against Shell that it deliberately reduced its production of petroleum to cause a shortage of fuel in California; 23.23 referred to a denial by Shell in relation to the legal status of its Statement of General Business Principles; p23.24 referred to settlements of Canadian class action lawsuits against Shell in relation to the sale of tainted gasoline; p23.25 referred to a claim against Shell in Florida in respect of the sale of tainted gasoline; p23.26 referred to a court order in Nicaragua against Shell in respect of the sale of pesticide in the USA; p23.27 referred to environmental pollution by Shell (or companies partly owned by Shell) in Louisiana, Texas, Nigeria, Brazil, Curacao and South Africa; p23.28 referred to activities of the Shell (or companies partly owned by Shell) putting local populations at risk in the Philippines and Sakhalin Island in Russia.
Pure smoke and mirrors by Shell lawyers: What they are saying is that the eight Royal Dutch Shell group plaintiff companies are not the Royal Dutch Shell Group. This is a manoeuvre to try to deny the Defendant, Dr Huong, the opportunity to prove the truth of the relevant allegations against Shell. Management has apparently realised that this defamation action has the potential for the first time, to publicly throw light on a number of Shell scandals, including most importantly, the inside story of the reserves fraud. Thus far Shell has paid $150 million dollars in fines imposed by the financial regulators and has settled multi-million USD class action suits - all without relevant confidential documents from Shell, its auditors, and/or other internal and external reports and inquiries being actually brought into the public domain.
Shell's desperation on this issue is evident from this audacious move to try separate the EIGHT Royal Dutch Shell companies from the rest of the Group. Unfortunately for Shell, they did not recognise this danger at the outset and have completely undermined this manoeuvre by virtue of statements made in the originating and other court papers served in the case.
Except for the above, paragraph 23 of the Defence is denied.
10. As regards paragraph 24 of the Defence, the Plaintiffs aver and will contend as follows:
10.1. The plaintiffs in this action are the Plaintiffs, not the 'Shell Group'. The allegations made against the 'Shell Group' in paragraph 24 of the Defence, which are denied, cannot therefore constitute fair comment in relation to the allegations complained of in the Statement of Claim as alleged or at all.
This is the smoke and mirrors manoeuvre set out in clearer terms.
Shell lawyers seem to have forgotten that paragraph 9 of the Royal Dutch Shell group of EIGHTS “STATEMENT OF CLAIM” dated 22 June 2004, stated as follows: -
“The Plaintiffs are part of the Shell group of companies which had a presence in Malaysia for over one hundred years and a brand name "Shell" has acquired a reputation and standing as a leader in the oil and gas industry worldwide, including Malaysia.”
Furthermore, in the "NOTICE TO SHOW CAUSE" the Plaintiff companies are repeatedly linked with Shell e.g. The phrase "the Plaintiffs and Shell" are used on a number of occasions.
Paragraph 7 complains of "defamatory allegations against companies in the Shell Group". Paragraph 11 refers to "allegations against the Plaintiffs in particular and Shell generally...".
Paragraph 12 refers to "diatribe against Shell at large".
Paragraph 14 states: "All the highlighted portions allege misconduct against the Plaintiffs and Shell generally and are in blatant breach of the Order".
I am not a lawyer, but it seems clear that the NOTICE TO SHOW CAUSE is stating that the alleged defamatory allegations directed at "Shell generally" are in "blatant breach of the Order", which means that TH Liew is acting for Shell generally (whether as an agent or servant or otherwise). They are clearly speaking for Shell as well as for the Plaintiff companies within the Shell Group of companies.
This is unsurprising because almost all of the extracts of alleged defamatory comments quoted in the originating legal proceedings and subsequent legal documents served by TH Liew against R Huong relate to Shell generally, not the the Royal Dutch Shell Group of EIGHT Shell multinational companies or their activities. Why on earth would TH Liew include in the REPLY under paragraph 11.8 below the following extract, which relates solely to the Royal Dutch Shell Group, if they only represent the group of EIGHT.
Dr Huong has now filed a Defence which contains a staggering array of allegations, facts and evidence directed against Royal Dutch Shell Group. It represents an unprecedented indictment of Shell by a former Shell insider.
There are many other examples where the quoted alleged defamatory comments relate to the Group and/or Shell brand in general. Why cite alleged defamatory comments relating to the Royal Dutch Shell Group and/or the Shell brand if the comments are irrelevant to the Plaintiff Shell companies and if the Defendant is to be denied the opportunity to prove the charges made in the quoted extracts? Shell lawyers are trying to have it both ways. The other major point is that the quoted comments were originated and published by my son and I, not by the Defendant.
The Royal Dutch Shell group of EIGHT – one a UK company, one Dutch, one incorporated in the Caribbean Island of Nevis and the rest in Malaysia, cannot divorce their individual companies from the actions and reputation of the Shell brand name, or the Shell group of companies, of which the Royal Dutch Shell group of EIGHT are part and parcel.
Shell’s reputation has been blown to smithereens as a result of the reserves fraud alone and the dire consequences which flowed there from including massive fines, top level sackings, class action lawsuits, class action settlements and a, deluge of disastrously bad publicity. The Defendant, Dr Huong, will be entitled in the discovery process to all documents, communications etc so that he has the opportunity to prove that his allegations against the Plaintiff Royal Dutch Shell companies and Shell generally are well founded. This includes Shell documents and related information in the hands of the US Justice Department.
The prohibited articles never mentioned the companies who comprise the Group of EIGHT. Heaven knows what caused them to group together to become the Plaintiff companies in the action. I can only speculate that it was for intimidation purposes as it only needed one Plaintiff company to sue Dr Huong. Presumably it should have been the company of which Dr Huong is a former employee if it felt that it had a case.
As the authors of much of the material actually quoted in the originating proceedings, we were blissfully unaware of the existence of the various Plaintiff companies, so it is impossible that the cited comments were directed at any specific far flung Shell company, but rather at the Royal Dutch Shell Group in general, including those "multinational corporations" suing Dr Huong.
Shell has since July 2004 known the background facts about the co-authorship of the alleged defamatory articles and the fact that I, not Dr Huong, published the articles on my website. Shell has chosen to ignore the truth and persecute Dr Huong out of pure malice rather than face their real adversaries in court in an appropriate legal jurisdiction. Dr Huong has unfortunately been a pawn in a long drawn out battle between the real protagonists.
What it all seems to boil down to is that the Plaintiff Royal Dutch Shell companies were initially keen to associate themselves with the Shell brand generally when complaining about alleged damage to Shell's reputation. However they are now attempting to divorce themselves from the Royal Dutch Shell Group because of well placed fears about Shell having to supply discovery documents which will blow the lid off Shell management misdeeds generally.
10.2. The allegations made by the Defendant as complained of are statements of fact, not comment. The defence of fair comment is therefore inapplicable.
Except for the above, paragraph 24 of the Defence is denied.
11. Insofar as the Defendant relies on the defence of fair comment the Plaintiffs aver and will contend that even if the Defendant is otherwise entitled to rely on it, which is denied, that right is vitiated by express malice:
PARTICULARS OF EXPRESS MALICE
Subject to the Plaintiffs' rights to discovery and interrogatories, and without prejudice to the Plaintiffs' rights to rely on answers given in cross-examination, the best particulars that the Plaintiffs can render at present are as follows:
11.1. The denial in paragraph 4 of the Defence that the Plaintiffs have a good reputation and are of good standing.
Who is Shell kidding? Shell's good reputation
should be referred to in the past tense when investors and the public could
be sure of Shell. This was before the reserves fraud which put Shell's
reputation on a par with Enron (as reported just a few months ago by The Wall
11.2. The irrelevant allegations in the Defence which are scandalous, frivolous, vexatious or otherwise an abuse of the process of the court or under the inherent jurisdiction of the court.
11.3.. The denial in paragraphs 25 and 27 of the Defence that the Plaintiffs have suffered loss and damage by reason of the defamatory publications by the Defendant.
11.4. The continued publication of matters defamatory of the Plaintiffs notwithstanding the injunction obtained by the Plaintiffs against the Defendant on 23.6.04 in respect of substantially similar defamatory allegations which remains in force.
Publications in fact by me, Alfred Donovan,
with the help of my son John. So why are EIGHT Royal Dutch Shell Plaintiff
companies suing Dr Huong? I am the guilty party if there is any guilt. I
confess. I admit the persistent publications. I do not admit that any such
commentary is defamatory.
11.5. The plea of justification in paragraphs 15 and 23 of the Defence.
11.6. The refusal of the Defendant, even now, to retract and/or apologise or in other any way make amends for his defamatory publications and/ or to confirm that he will not publish them again.
Shell should apologise to Dr
Huong for the inhuman treatment given to given to him by managers turning a
blind eye to misdeeds while he stuck his neck out to abide with Shell's
ethical code and got pilloried and sacked for doing so.
11.7. The fact that the Defendant only commenced publishing statements defamatory of the Plaintiffs after he was dismissed by the 1st Plaintiffs.
Dr Huong did courageously raise
in internal correspondence his reservations about moral and legal issues,
for example deliberately misleading Shell shareholders over hydrocarbon
reserves. How often do employees
criticise their employers while still on the pay role? Such statements are
not defamatory if true and in any event were published by me, not by Dr
Huong, who to this day, I have never met.
11.8. The publication and/or the procurement of publication of the Defendant's Defence at the www.shell2004.com website which included, inter alia, the following commentary which is further defamatory of the Plaintiffs:
"Dr Huong, a former Shell geologist of almost 30 years standing was the FIRST SHELL employee to blow the whistle on the Shell reserves fraud (and other important issues relating to the discredited senior management of Royal Dutch Shell). As a result Shell appears determined to silence him at all costs. Hence the unprecedented highly distasteful spectacle of EIGHT giant Shell companies collectively bringing a defamation action against one human being - an unemployed Malaysian who has no prospect whatsoever of finding alternative employment in his profession while the litigation cloud hangs over the heads of himself and his family.
Dr Huong has now filed a Defence which contains a staggering array of allegations, facts and evidence directed against Royal Dutch Shell Group. It represents an unprecedented indictment of Shell by a former Shell insider.
Dr Huong made the mistake of believing in Shell's STATEMENT OF GENERAL BUSINESS PRINCIPLES and in particular the pledges of "honesty, integrity, respect for people" in all of Shell's dealings and Shell's philosophy in the new ways of working, including the promotion of trust, openness, teamwork, professionalism and pride in what Shell does. He did not realise that the pledges were purely hype and spin meant for use in global PR campaigns such as "Profits and Principles' le. for the consumption of gullible consumers and stakeholders.
We now know as a result of the reserves fraud that the slogan should have been "Profits and NO Principles”.
11.9. The Defendant's publication and/or the procurement of publication of the following letter to Jyoti Munsiff at the 'Tell Shell' website http://www.tellshell.net/blog/ShellNewsNet/_archives/2006/2/2/1740207.html on the following terms;
"Congratulations on your appointment as Chief
Ethics and Compliance Officer for Royal Dutch Shell Plc.
As you know I am being sued by eight companies of the Royal Dutch Shell Group for alleged defamation. The relevant Shell companies have obtained a restraining order which prevents me for speaking the TRUTH in line with the United Nations Universal Declaration on Human Rights. My rights to freedom of expression have in fact been restrained for over 18 months. I had thought that Shell supported this UN Declaration, but it seems that this assumption must be incorrect. I would welcome your clarification on has point as I am sure that my analysis must be at fault?
I am also perplexed by the fact that Shell apparently allows Mr. Alfred Donovan to publish negative commentary about Shell on his website unhindered while I have been sued for articles posted by him on his website under my name? Mr. Donovan has also published an extract from a legal submission purportedly made by Shell International to the World Intellectual Property Organisation in which Shell stated that it supports the right of Mr. Alfred Donovan to criticise Shell on his website. I have also read the November 2005 email to Alfred Donovan from Shell International General Counsel Mr. Richard Wiseman in which Mr Wiseman confirms how tolerant Shell is of Mr. Donovan's postings on his website. I trust that you can appreciate why I am so puzzled at the apparent disparity in treatment. I am sure there must be a logical explanation?
It therefore seems appropriate to ask you in your new capacity whether the relevant postings by Mr. Donovan i.e. the claimed extract from Shell's submission to the WIPO and the November 2005 email from Mr. Wiseman are genuine? Surely they must be false??? Why would Shell encourage Mr. Donovan to indulge in his rights to freedom of expression while simultaneously adopting a totally different approach towards me? Something really must be seriously amiss. The answers to my questions are important if - as I assume must be the case - you genuinely want to encourage whistleblowers to speak out if they become aware of misdeeds which are in contravention of the Shell Statement of General Business Principles (SGBP).
It is surely essential in this regard that an even-handed approach is adopted in such matters so that would be whistleblowers and parties with genuine grievances are not deterred by the prospect that they could be ostracized, victimized, sacked and/or sued if they do come forward. In regards to this paragraph I am speaking of course in general terms, not about my case, as that would be inappropriate under the current ongoing litigation.
This letter also seeks confirmation from you for me to make significant inputs for improving ethics and compliance at Shell. I sincerely believe that for obvious reasons I have a unique perspective on the question of Shell employees engaging professionally in whistle blowing when faced with ethical, moral and/or legal dilemmas.
I also believe that it is fair to make readers of this communication aware that apart from the High Court Restraining Order I am also constrained in my comments by a threat of imprisonment.
I am sure that the eight Royal Dutch Shell companies who collectively decided to sue me believe that their action is an appropriate and proportionate response to the alleged defamatory comments by one former Malaysian employee of 29 years.
Dr. John Huong
Note: This letter will also be copied to Mr. Alfred Donovan because his name was also mentioned".
I have already dealt with this
email in my draft affidavit.
11.10. The Defendant's publication and/or the procurement of publication of an 'affidavit' in his name on the Tell Shell website http://www.tellshell.net/blog/_archives/2006/2/7/1749132.html on the following terms.
"I believe that Shell management treated me this way in the expectation that I would either resign or adopt a servile attitude, including turning a blind eye to management violations of the Shell Statement of General Business Principles. I believe that this was the fundamental reason why Shell management was hostile towards me. I was even told by two well engineers that their team leader had instructed that I was "not to walk along his corridor". Such unprofessional childish nonsense was totally out of order because my operational geological work required me to discuss matters face-to-face with his engineers. It was also humiliating in the extreme that the Team Leader conveyed his instructions via individuals I had to work with. That was insulting to me and highly embarrassing for staff involved.
Such shabby and inhumane treatment was inflicted on me after I had consistently promoted and protected Shell's best interests during my work. My adherence to the ethical codes enshrined in the Statement of General Business Principles; the Health, Safety and Environmental policy guidelines: and the Human Resource Policy and Procedures Manual were not appreciated. Instead I was abused and crucified by Shell's management and its officials.
I believe such actions were in violation of all ethical norms and constituted serious breaches of my Human Rights under the UN Universal Declaration of Human Rights - rights which Shell purports to support.
The current defamation law suit against me by EIGHT Royal Dutch Shell companies also constitutes a breach of my rights to freedom of expression and freedom of conscience accorded to me and fellow human beings under the aforementioned United Nations Declaration.
The fact that it was deemed necessary for EIGHT Shell companies to collectively sue one unemployed Malaysian seems to be a classic case of overkill. It would have already been an uneven struggle even if only one such company had directed its wrath (and retribution) against me.
There are also lawsuits in progress in Malaysia against Shell which have been brought by its former employees. One High Court case involves a group of 399 former Shell employees known as "Team A". Their action relates to deductions made by Shell to their Employee Providence Fund. A Judge has already ruled that the deductions were "unlawful". Shell has appealed that decision apparently in an attempt to exploit a legal loophole relating to time limits. This appears to be a ploy by Shell to evade its moral responsibilities to its former employees. News reports related to this distressing case are published on the Donovan website.
Current employees and employees who had resigned after 1997 were persuaded by the company to opt for a Defined Contributory Scheme (DCS). The relevant employees wrongly thought that Shell management was acting in their best interests. It turned out however to be a detrimental move for the relevant employees and a financially beneficial manoeuvre for Shell. Eventually the company paid an ex-gratia payment plus adjustments for the DCS holders in early 2004 provided they were willing to sign off a letter of undertaking not to pursue legal action against the company in future.
In a related question and answer leaflet, published by Shell employees such as me, who have been dismissed, would not be entitled to receive any such ex-gratia payments, nor the adjustment paid to other employees. Therefore, the representation by Sarawak Shell Berhad to me of the alleged benefits in the Defined Contributory Scheme and my subsequent dismissal under the most extraordinary circumstances has caused me to be prejudiced and to suffer financial loss and financial insecurity.
I too have been severely penalised by what I consider to be completely improper decisions made in respect of Shell employee pension funds. The Malaysian people are by nature (in my humble assessment) fairly docile, dedicated and basically decent human beings. The fact that several hundred hard-working and loyal Shell employees felt compelled to institute legal proceedings against their former employer speaks absolute volumes. I am truly appalled by the Royal Dutch Shell Croups' unscrupulous heartless treatment of the sick, elderly and dying, as reported by the Malaysian news media. I believe that such conduct is indeed evil and in line with Shell's management actions in other Countries e.g. Nigeria, Africa, South America, Nicaragua, Caribbean, USA, Canada, Russia, Vietnam, Philippines, Papua New Guinea, County Mayo in Ireland, etc”'
The Plaintiffs will rely in particular on the fact that the Defendant had not obtained leave of Court in this action to file any 'affidavit’ nor was there any pending proceedings in this action that warranted the preparation of an 'affidavit’ on the above terms or at all as further evidence of malice.
I have already dealt with this
email in my draft affidavit.
(Dr Huong's lawyer wrote to him saying that am affidavit had to be prepared)
11.11. The Defendant's publication and/or the procurement of publication of the following letter to Human Rights Watch at the 'Tell Shell' website confirming the truth of the contents the 'affidavit' referred to in paragraph 11.9 of this Reply on the following terms:
"This email is in connection with the communication which I believe you have received earlier today from Mr. Alfred Donovan from Shellnews.net.
I want to put on record 0K facts that I have not authorized publication of the Draft Affidavit and/or the Communication sent to Human Rights Watch.
The publication is entirely a matter for the Donovans.
I had not sanctioned the Draft Affidavit published on the Donovan website.
Having said that, I do not take issue with anything stated in the Draft Affidavit, bearing in mind that I am under threat of imprisonment and it would not be prudent for me to comment further on this matter other than to state in general terms that I support freedom of expression.
Dr. John Huong
Mr. Alfred Donovan
END OF DR HUONG LETTER TO HUMAN RIGHTS WATCH COMMENT ADDED BY ALFRED DONOVAN
I note that Dr Huong has not taken issue with the accuracy of the content of his draft Affidavit. This is unsurprising since he was the author (but not the publisher)."
I have already dealt with this email in my draft affidavit.
The Plaintiffs rely on the allegations referred to above in paragraphs 11.7 to 11.10 of this Reply as evidence of express malice without prejudice to their rights to commence separate proceedings in respect of each of them for libel.
The Plaintiffs aver and will contend that in the circumstances, the Defendant published the defamatory statements complained of maliciously, knowing that they were false or recklessly not caring whether they were true or false out of spite or ill-will towards the Plaintiffs thereby vitiating the defence of fair comment.
The Defendant has never
published a single word on my websites.
12. The Plaintiffs repeat the particulars of 11 of this Reply as further particulars in support of their claim for aggravated damages.
MESSRS T H LIEW & PARTNERS SOLICITORS FOR THE PLAINTIFFS
Dated this 22nd day of February, 2006.
FINAL COMMENT BY ALFRED DONOVAN
SHELL SLYLY ATTEMPTING TO CHANGE THE ORIGINAL PLEADINGS
I note from the REPLY that Shell lawyers are attempting to slyly change the pleadings. That is understandable because the Writ, Statement of Claim, Affidavit and consequential Court Orders are all founded on fictitious evidence. It is only now with the latest crop of legal documents that Shell is acknowledging that the articles in question were published on “Whistleblower No. 2 website and/or www.shell2004.com website”. It is also noted that what was formally described as a “circular” is now described as an Email/Letter.
you are a Shell lawyer please be advised that I have made some amendments to
parts 1 to 4 over the weekend. Unfortunately I forgot to highlight them so
you will need to check them all again. Sorry.
If YOU HAVE NOT SEEN PARTS 1, 2, 3 & 4 OF THIS SERIES OF ARTICLES, THEY ARE ACCESSIBLE VIA THE LINKS BELOW: -
PART 1: ROYAL DUTCH SHELL "NOTICE TO SHOW CAUSE" PROCEEDINGS AGAINST DR. HUONG: : 23 March 2006: READ
PART 2: ROYAL DUTCH SHELL IMPRISONMENT PROCEEDINGS AGAINST DR. HUONG: : 24 March 2006: READ
PART 3: "NOTICE TO SHOW CAUSE" CONTEMPT PROCEEDINGS AGAINST DR. HUONG: : THE EMAIL TO JYOTI MUNSIFF (CHIEF ETHICS AND COMPLIANCE OFFICER FOR ROYAL DUTCH SHELL PLC): 24 MARCH 2006: READ
PART 4: ROYAL DUTCH SHELL CONTEMPT PROCEEDINGS AGAINST SHELL WHISTLEBLOWER DR. JOHN HUONG: : THE EMAIL TO HUMAN RIGHTS WATCH: 26 MARCH 2006: READ
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