HIGH COURT TRIAL JUNE/JULY 1999 Case No: DD04199 Court 58

John Alfred Donovan v. Shell UK Ltd

SHELL SMART MULTI-PARTNER LOYALTY CARD SCHEME

HIGH COURT TRIAL INDEX PAGE

 

 

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PRE-TRIAL CORRESPONDENCE, HIGH COURT WRIT & SHELL DEFENCE AND COUNTERCLAIM

Letter from Richard Wiseman: 14 May 1997 (confirms he was keeping Royal Dutch Shell executive directors informed about the case)

Don Marketing/D J Freeman Correspondence 2/3 July 1998

High Court Writ Issued Against Shell UK Limited 9 April 1998

Shell Defence & CounterClaim

OUR PREVIOUS HIGH COURT WRITS AGAINST SHELL ALSO FOR BREACH OF CONFIDENCE AND BREACH OF CONTRACT

6 APRIL 1994 HIGH COURT WRIT RELATING TO SHELL MAKE MONEY PROMOTION (SETTLED BY SHELL)

21 APRIL 1994 HIGH COURT WRIT RELATING TO SHELL NINTENDO THEMED EVERY CARD CAN WIN PROMOTION (SETTLED BY SHELL)

30 SEPTEMBER 1994 HIGH COURT WRIT RELATING TO HOLLYWOOD COLLECTION PROMOTION (SETTLED BY SHELL)

 

 

 

WITNESS STATEMENTS AND REPORTS

Witness Statement of John Alfred Donovan

Witness Statement of Shell Executive Andrew John Lazenby

Extract

Paragraph 2

I was involved in what subsequently became the SMART scheme between February 1992 and my departure from the promotions department in May 1994. Project Onyx, the forerunner to Project Hercules (which eventually became the SMART scheme), was already under way when I joined the department. At that stage, before I had ever met John Donovan, Project Onyx already bore many of the features that Mr. Donovan now claims as his own.

Paragraph 133

The Shell Nintendo promotion ran from 18 June 1993 for four weeks. On the day of the launch, John Donovan telephoned me to complain about what he perceived to be our use of his idea and additionally to complain that our scheme was open to fraud on account of customers being able to see through the latex covering the prize panels. Having read the transcripts of the tapes supplied by Mr Donovan (but not having heard the original tapes which have not yet been produced), I am now aware that Mr Donovan was recording this and all subsequent telephone conversations between us onto audio tape. I was not aware of this at the time.

From paragraph 139

Tequila's proposed MGM promotion proved very popular in this research due to the cinema ticket prizes on offer. On that basis Frank Leggatt and Ian Sutcliffe agreed that Shell would run the Tequila promotion. The agreement between Tequila and Shell was signed on 16 May 1994. In the end Blockbuster were also brought into the promotion, so Option One were also credited and paid accordingly.

Witness Statement of Alfred Ernest Donovan

Witness Statement of John Chambers

Witness Statement of Richard Max Wiseman (Shell Legal Director)

Witness Statement of Mike McMahon

Witness Statement of John Armstrong-Holmes

Witness Statement of Timothy Sean Hannagan (As of 2011 - Global Brand Standards and Performance Manager at Shell International Petroleum Company)

Witness Statement of Frank Leggatt (Shell General Manager Retail)

Extract

If, as John Donovan appears to suggest, the entire scheme had been dreamt up solely by Andrew Lazenby on the basis of Don Marketing's proposals, it would perhaps have been a lot simpler. In fact, the SMART project had all the advantages and disadvantages of being created in the course of consultation between a large number of individuals: David Pirret, David Watson, Tim Hannagan, Ian Sutcliffe and Gary Anderton all made significant contributions to the eventual form of the scheme, quite apart from the influence of Option One and others outside Shell UK.

Witness Statement of David Pirret (Shell Head of Retail)

Witness Statement of Jeremy Charles Taylor (Option One)

Extract

I am also aware that Don Marketing brought proceedings in 1994 over the Now Showing promotion. This promotion ran from July 1994. Shell asked five different agencies to tender for a promotion. Tequila UK were successful, their promotion included cinema tickets. Option One had also tendered for this promotion with a proposed link up with Blockbusters, this idea was incorporated into the Now Showing promotion and Option One were paid a fee for brokering the connection between Shell and Blockbusters.

Witness Statement of Ian Sutcliffe (Shell Fuels Marketing Manager)

Extract

I have had a great deal to do with the development of the Shell SMART scheme. Many of its key features were suggested by me without reference to any proposals put forward directly or indirectly by Mr. John Donovan or his company Don Marketing.

Report of Professor Stephen Worthington

Report of Steve King of Senior King (Shell's former retained promotions agency)

Extracts
My company has had first hand experience of working with Shell and Andrew Lazenby and can confirm that Andrew appeared to adopt a very different approach to his predecessors, who in my experience more readily acknowledge the rights of agencies concepts and the copyright.
The reader of this opinion should be aware that we are considering our position with regard to any breach of confidential information or copyright in regard to the recent presentation to Shell regarding Shell Smart.

 

 

 

SIMILAR FACT EVIDENCE

THE SHELL SMART CONTRACT TENDER SCAM

PDF file containing selective extracts from cross-examination of retired Shell Executive Frank Leggatt regarding a rigged contract tender for the SMART scheme masterminded by Andrew Lazenby, in a conspiracy with fellow Shell executives. The objective was to steal information from many companies lured into confidentiality agreements under false pretences.
Detailed information about the SMART contract scam is contained in the article ALARM BELLS RING OVER TENDERING FOR ROYAL DUTCH SHELL CONTRACTS
RELATED Witness Statement of Mike McMahon, the CEO of one such company, Concept Loyalty Limited.
*THE APPROACH LETTER TO Mr Mike McMahon dated 19 March 1999 DETAILING THE DOCUMENTARY EVIDENCE FOUND IN SHELL'S MOUNTAIN OF "DISCOVERY" DOCUMENTS
*Includes examples of two items listed in the letter: (1) a handwritten note dated 23 October 1992 by Shell Manager Andrew Lazenby circulated to his management colleagues notifying them of his intention to deceive companies in the tendering process for the multimillion pounds SMART scheme by keeping them holding as long as possible when in fact he had already decided to reject them (2) a standard letter dated 27 October 1992 subsequently sent by him to Mr McMahon (and other "rejects") pretending they were ALL still in contention. Lazenby requested considerably more information on the false premise that they were still in the running for a multi-million pounds contract. This caused considerable time and expense to be incurred by all the "reject" companies involved. And they supplied Shell with commercially valuable information. It was an outright premeditated con trick on the part of Shell management.
On the same date, 27 October 1992, Mr Lazenby sent letters to the two companies he had short listed - the sole runners left in the race as Mr McMahon put it, Geoff Howe & Associates and Senior King Limited. He also requested further  information from them before ultimately awarding the contract to "Option One", a company which was NOT IN THE TENDERING PROCESS or as Mr McMahon described it, a horse which was not even running in the race. Option One was the same company to whom he funnelled all of our confidential proposals - he had a close personal relationship Option One directors outside of business activities. Mr Lazenby held an offshore bank account in Jersey.
In a Typewritten confidential "SHORTLIST SELECTION RATIONAL" dated 28 October 1992 circulated by Andrew Lazenby to his managerial colleagues, Tim Hannagan and David Watson, Lazenby provided a "Listing of reasons for rejection" as per his handwritten note of 23 October 1992. It is further proof of his double dealing with Lazenby rubbishing the four companies who he had decided to reject, but written to the previous day pretending otherwise to "keep rejects holding as long as poss" as per the same handwritten note.
In his Witness Statement, Tim Hannagan confirmed the shortlist process, with what Hannagan described as "the players" being first listed, then "narrowed down" to a shortlist of six, then two, before theremainers "players" were also rejected in favour of Option One, the company enjoying a special relationship with Andrew Lazenby which, was never even a participant in the tender. It is notable that in his Witness Statement, Hannagan tried to distance himself from the actions of Andrew Lazenby. He should have diassociated himself at the time from the rigged process.
Several months later, Lazenby was still conspiring with his immediate boss, David Watson, on how to keep Mike McMahon and his company holding on. This is self-evident from a draft letter addressed to Mike McMahon dated 4 May 1993, which Lazenby sent to David Watson ("DW") for comment, prior to it being mailed. It contained suggested amendments and an additional clause. Lazenby asked McMahon to put Shell in "as the exclusive petrol retailer" in "your smardcard loyalty scheme". Lazenby stated that "Final commitment" would depend on positive results after extensive consumer testing. The implication being that a commitment had been made, but not a "Final commitment."
McMahon and his company must have been overjoyed at the news, but were unaware that on the same day, 4 May 1993, Lazenby also sent an email to several Shell colleagues, including David Watson, discussing the sharing out of roles on the "blossoming" Shell SMART project. Shell had not the slightest genuine intention of moving forward with the scheme offered by McMahon. In the email to his Shell colleagues, Lazenby described himself as "machiavellian."
Some definitions of "machiavellian":"cunning and unscrupulous: using clever trickery, amoral methods, and expediency to achieve a desired goal…"; "Suggestive of or characterized by expediency, deceit, and cunning."; "using clever but often dishonest methods which deceive people..":
Some synonyms: plotting; deceitful; sly; cunning; calculating; insidious; unscrupulous; wily; underhanded; contriving; artful; devious
How apt and appropriate given the circumstances.
Lazenby and his colleagues deliberately conned innocent smaller companies to invest time and money and disclose proprietary information, all under false pretences, after the decision had already been made not to use them.
The mind set of Lazenby is evident from an incriminating email relating to the Shell SMART multi-partner loyalty card project which he circulated to Shell managerial colleagues.
Extract: “NB: To answer your last point: My note of 25/10 is the official position, my note of 9/9 expressed a personal and pragmatic view of how to handle the problem - it is in fact illegal and is certainly unofficial, and if we were discovered then we will enforce the official legal position - which is that all volume must currently be rewarded with promotional points”.
Companies in a tender process for a SMART loyalty card contract were deliberately drawn into confidentiality agreements supplied by Pamela Marsh who worked for Mr Wiseman in the legal department. Proprietory information was extracted from the companies under false pretences and they were held back from approaching other oil companies in the belief they were still in the running for the SMART contract, when in fact, the decision had already been made to reject them from the tender.
The Smart contract was miraculously awarded to an agency - Option One - which had not even run in the contract race. Lazenby had a close private relationship with senior directors of Option One. His diaries show that he also had an offshore bank account in the Channel Islands (Jersey). As far as we could tell, all confidential ideas disclosed to Lazenby and subsequently adopted by Shell were channelled to Option One. This included a series of proposals we put to Lazenby including a rerun of the Shell Make Money game we had devised for Shell and held joint rights with Shell.
Never guessing that his hand-written diary entries would be exposed to scrutiny in a High Court case, Lazenby made entries which revealed that he was a disgruntled employee and was intent to “Set up personal business while @ Shell 35 yrs = exit date.” It was his apparent objective to exploit his position to create enough personal wealth to exit Shell at the age of 35.
Detailed information about the SMART contract scam is contained in the article ALARM BELLS RING OVER TENDERING FOR ROYAL DUTCH SHELL CONTRACTS

SHELL MAKE MONEY (OPERATION CUPID)

After presenting a series of promotional ideas on a strictly confidential basis to Andrew Lazenby, the newly appointed National Promotions Manager of Shell UK Limited, we found it necessary to repeatedly issue High Court proceedings against Shell UK for breach of confidentiality and breach of contract.
This article focuses mainly on the way that Shell management dealt with us on the Make Money game as it provides a clear example of intimidation and unscrupulous conduct which involved executives who are still at Shell in high positions.
However, the initial dispute arose from a Nintendo themed "Every Card Can Win" scratch off game proposal we presented to Mr Lazenby on 4 June 1992. Lazenby said that he was putting our ideas into research and on 22 February 1993, we received a handwritten note by fax from Lazenby promising that he would contact us when he had made further progress. This was in respect of the Nintendo idea and a Hollywood themed concept.
In a handwritten note dated 24 June 1993, headed "NINTENDO: DON MKTG", Lazenby said in his last comment on third page: "At June '92 + Feb '93 AJL had rejected their concept - that is why their proposal was binned." His comment was directly at odds with the above handwritten note he sent to me on 22 February 1993.
In June 1993, I was astonished to see newspaper adverts for a Shell Nintendo themed promotional game which shared many elements of our proposal, as listed in my letter dated 24 June 1993, to Lazenby.
The letter also drew to his attention that the game was insecure. On a large proportion of the Shell Nintendo themed leafets, offering over 10 million instant win prizes, it was possible to see through the latex coating, thereby destroying the security of the game. In a telephone conversation with me later the same day (which I recorded), Lazenby gave no indication that Shell was already aware that the security of the game leafets was compromised. Shell internal documents for "Operation Bob" supplied in the discovery process, provided evidence that Shell was very well aware, but had continued with the flawed Nintendo themed promotion despite this knowledge.
After receiving a threatening letter from Shell UK Marketing Communications Manager David Watson, I wrote to Shell Managing Director David Varney complaining about the treatment we had received. Varney claimed in his response letter that he had personally carried out an investigation. This turned out to be untrue. I wrote again to Varney in October 1993 and received a response from Ian Brown, the Senior Legal Advisor from Shell's Legal Division, proposing a without prejuice meeting "with a view to settling this matter." Nothing came of it. We issued High Court proceedings in April 1994 and Shell eventually settled out of court for £100,000 plus legal costs. Shell also settled on the same basis - £100,000 plus costs - proceedings we had brought in respect of the Hollywood themed promotion we had also put to Lazenby in strictest confidence, which Shell had also used withoout our consent.
Before going into detail over the Shell Make Money saga, I would draw attention to a reference made to our Make Money claim in a statement by solicitors acting for Shell (Mackrell Turner Garrett) supplied to CEDR mediators in August 1996. The mediation was in relation to the Nintendo and "Now Showing" High Court actions we brought against Shell, both involving Andrew Lazenby, both also settled out of court, according to Shell Legal Director, Richard Wiseman, on moral grounds.
"Shell recognised that Don had perfect rights to claim sums due in respect of Make Money, and the agreed sum was paid within a matter of days of proceedings being issued. Shell also recognises and acknowledges the long and successful trading history between the two companies. Don have been involved in a number of successful promotions run by Shell, concluding with a promotion known as Star Trek in 1992. Don's considerable assistance in previous years Is formally acknowledged by Shell."

As you read the catalogue of deception and evasion by Shell and its lawyers, please bear in mind this clear statement.

We now know from discovery documents supplied to us by Shell a great deal of what was going on internally at Shell during the period that we were discussing Make Money with Andrew Lazenby and David Watson. This information has been inserted in red text at the appropropriate dates.
On 27 April 1992, I sent an intoductory letter to Mr Lazenby. It included a proposal that Shell should run our Make Money game again.
In my second telephone conversation with Andrew Lazenby on 18 June 1993, he suddenly asserted that Shell could "run Make Money again, we would probably do it off our own backs." (See page 20 of the transcript) I immediately pointed out : "I have got a letter from Shell saying we have equal rights to Make Money and I will produce that letter anytime you want to see it." Lazenby replied: "I don't care about that, what I'm saying is that if we want to run Make Money again, then we know how to do it, we can go out and do it." Referring to the insecure Nintendo themed game, I replied: "You don't know how to do it because you've just proved that by what's happened with this game that's running on your forecourts right now because it isn't secure."
In a telephone conversation on 24 June 1993, Lazenby denied saying that Shell would not need us to run Make Money. He said: "No, no. I never said that. I never ever... there are other people who can do it" (See page 30). He also said during the same conversation (see page 25): For all I know you might be taping this call which I shouldn't be er..."
On 15th September 1993, one of Andrews’s assistants, Charlie Fox, sent a note to a senior Shell manager concerning “OPERATION CUPID” – the project code name for the clandestinely produced Make Money promotion. Under “Key Action” it stated “Finalise Don Marketing’s position”.
On 22nd September 1993, Charlie sent a note to David Watson headed “CUPID AND DON MARKETING”. In addition to other considerations, the note said: “Ask John Donovan whether he will consider working with Shell again in the future. If no, please put it in writing.  If yes, decide if we want to use him for cupid”.
The question was never put to me.
On 24 September 1993, Option One sent a letter to David Watson. It expressed a concern at the perception of an increasing monopoly involvement of Option One in Project Hercules - Shell Smart.
Extract
There was a stage in this project development when I observed a natural reluctance/concern about increasing monopoly involvement from Option One. I can understand such concerns about the "all the eggs in one basket" syndrome!
It went on to claim: "Frankly I see it as suicidal to involve another party in the mix."
On 1 October 1993, Tim Hannagan sent an email to Charlie Fox which he copied to David Watson. He recommended contacting Howitts, a promotional game piece printer and cited promotions they had run.
He went on to say:
I suggest we explore their ability to manage CUPID with us before we start talking to the likes of Don Marketing. After all these people usually go direct to Howitts to find out what can be done and how, and then charge us for it. Let me know what you think.
Mr Hanngan apparently was not aware that Howitts had been responsible for the Cadburys Typoo promotional game disaster. Don Marketing was later retained to investigate and report on what went wrong.
In a 4 page letter dated 5 October 1993, a Patent attorneys Withers & Rogers gave advice to Option One over rights on Make Money and any rights Don Marketing might have in that regard. No reference whatsoever was made to our proprietary claim to Make Money, which I had first brought to the attention of Mr Lazenby in writing on 27 April 1992. Neither was there any reference to the joint rights agreement I had repeatedly brought to the attention of Lazenby and his senior colleagues.
On 13 October 1993, David Watson wrote a note recording a conversation he had with John Smeddle regarding the origin of the Make Money game. Mr Smeddle advised “Tell John what we intend to do for running Make Money i.e. whether he will run it i.e. security, distribution of vouchers” (“John” being John Donovan). Another Shell document originated towards the end of 1993 had a hand-written note by an unknown author (probably David Watson) saying “But if Don Mktg suggested it, they may still have rts to it”.
During a telephone conversation I had with David Watson on 28 October 1993 concerning the Ninento themed game, I mentioned "Make Money". He passed no comment on the subject, thereby not disclosing Shell's plans to run a Make Money game. I mentioned my letter to David Varney. Watson said that Varney had passed my letter on to him to draft a reply. (see page 7)
I spoke to Watson again on 1st November 1993 about the Nintendo related dispute. In the course of the discussion, I mentioned Make Money again. This time Watson took up the subject, arguing that we only held rights to the artwork (see page 6) but still not disclosing Shell's plans.
I spoke with Watson again the following day, 2 November 1993. Once again the topic was supposed to be the Nintendo dispute. I mentioned the letter I had received from Mr Varney and said that although Varney had signed it, Watson had drafted it. Watson did not deny that this was the case. In the course of the discussion, Watson brought up the agreement letter between us and Shell relating to Make Money (page 4).
Also on 2 November 1993, Tim Hannagan sent an email to Watson, copied to Charlie Fox, under the subject: "CUPID BRIEF." He mentioned that only five days were left for material to be fleshed out and there was less than 12 weeks to launch.
I faxed a letter to Watson on 4 November 1993 regarding the Nintendo related claims and pointed out that he had drafted the response letter I had received from Mr Varney.
Extract from my letter of 4 November to Watson:
For example, I note that although it was implied in the letter from Mr Varney dated 12 July 1993, that he had personally taken an interest in the matter, it has emerged from our discussions that it was not actually written by him. In fact, you were the author of the letter. A most inappropriate choice given the inaccuracies in your own letter of 1 July and its threatening nature.
On 11 November 1993, Tim Hannagan sent an email to his colleague Charlie Fox, which he copied to David Watson, Andrew Lazenby and Andrew Blazye regarding the printing of Make Money (Operation Cupid) game pieces. It complained about the conduct of Option One saying that "by various means" Option One had tried to intervene between one of the printers and Maverick". He said: "This must not happen." He went on to say: "All that Option One have done is to take your brief straight to Dobson & Crowther for Dobsons to work out design, mechanic, mix of prizes etc. For this info. we are paying Option One a fee when it was FREE to us.
I sent a letter to Shell UK Chairman and CEO Dr Chris Fay on 12 November 1993 again regarding the Nintendo related claims and pointing out that Watson had drafted the response letter I had received from Mr Varney.
Extract from my letter to Dr Fay:
If my Company's claim ultimately succeeds (as, I repeat, I am advised it will) it will reflect very badly indeed on Shell's marketing department and the competence, conduct and ethics of members of that department. It was for this reason that I chose to write in July to the Company's Managing Director, Mr Varney, and apparently received a reply from him dated 12th July 1993. However, it now appears the letter was not written by Mr Varney at all but by Mr Watson, Shell's Marketing Communications Manager.
On 19 November 1993, I faxed to David Watson a copy of the letter from Paul King recording the joint rights agreement between Don Marketing and Shell in respect of the Make Money scheme. Fortunately, we had retained the original Shell letter. We also mentioned our proposal for a Shell led multibrand loyalty promotion.
On 26 November 1993, I received a reply from Shell UK Managing Director David Varney in response to my letter to Dr Fay. It related solely to the Nintendo dispute. Although no doubt drafted by Watson/Lazenby, it made no reference to the pending Make Money promotion secretly being prepared.
On 2 December 1993, I received a response letter from David Watson. It rejected my claim of rights to the Make Money concept.

I replied on 20 December 1993 saying that there was not much point in debating the matter until such time as Shell decided that they wished to proceed.

On 9 February 1994, I sent a reply letter to Mr Varney. Although it concerned the Nintendo disput, I mentioned our connection with Make Money.
On 17 February 1994, I received a letter from Andrew Lazenby once again claiming that we had no rights to the Make Money concept.
A few days later, on 21 February, I had a heated telephone conversation with Lazenby. I said there was no point in continuing the correspondence unless Shell was planning to do something with Make Money. I asked him outright whether a Make Money game was being produced. Andrew said: "the point is unfortunately John that if we wanted to do something in a years time then we'd have to get it resolved at that stage." I replied: “Well I shall just send a short response to this letter confirming what I have already told you that I have further information...evidence". Lazenby said: "Then I'll just send a short response back to you saying I don’t believe it”.
During the same conversation, Lazenby mentioned my letter to David Varney and said: "we've just drafting a response". He went on to say (see page 6): "I'm facilitating that at the moment." So Lazenby was involved in drafting Varney's response to my complaint about Lazenby and his actions.
As a result of the Make Money related comments made Lazenby and Watson in correspondence and telephone conversations, my suspicions were aroused that Shell was surreptitiously moving forward with Make Money. Despite the involvement of Shell UK Chairman & CEO Chris Fay and Shell UK Managing Director, David Varney, in the correspondence, Shell continued to deceive us about its intentions.
On 22 February 1994, I followed up the call with a letter (also sent to Varney) in which I stated "it was interesting to receive confirmation that a "Make Money" game is now being produced." Although he had not confirmed that this was the case, it was by now obvious that something was going on.
Suspecting that I was being repeadely and deliberately deceived, I contacted a reliable source at the printers we used for the 1983 Make Money game. He confirmed that a Shell Make Money game was well into production in North Wales. Andrew Lazenby had deliberately deceived us and was secretly producing a Make Money game, even though he already had the copy of a Joint Rights Agreement between Shell and Don Marketing.
On 1 March 1993, Alan Williams of Shell's Legal Division responded on behalf of David Varney regarding the Nintendo dispute, but also raised the Make Money issue asking that in future all correspondence should be directed to Mr Williams.
I wrote to Lazenby on 3 March 1994 stating: "If you had approached this matter in a less devious way, we would have been able to respond in detail at a much earlier date."
Further letters from Alan Williams followed on 16 & 25 March 1994, both focussed solely on Make Money and still trying to deny our rights and continuing to hide the fact that the game was in production.
On 18 March 1994, our solicitors, Royds Treadwell, hand delivered a 48 hour ultimatum letter to Shell UK Limited.
Our solictitors, Royds Treadwell, issued a further ultimatum on 28 March 1994 stating that:"our Clients have clear information that the relevant game pieces are in the process of production and, in these circumstances, it is clear that the new game is on the verge of being run."
Shell's Legal Division responded with more evasion and threats on 29 March 1994, from its Senior Legal Advisor, Ian Brown.
The repeated deception and evasion, now involving Shell's legal department, continued until 6th April 1994, when we issued a High Court Writ against Shell UK Limited in relation to the Make Money promotion. We had the advantage of potentially being able to issue an injunction against Shell which would have prevented them running a multimillion pounds promotion and which would also have create a huge amount of adverse publicity.
Shell subsequently made an out of Court settlement with us. We accepted their offer of £60,000 to purchase our rights to Make Money only after the solicitors then acting for Shell, Mackrell Turner Garrett, gave a 10 minute ultimatum to our solicitors on the evening of Friday 8th April 1994, threatening that Shell would switch to an alternative promotion “already at an advanced stage of development”. We subsequently deduced from the discovery documents that the alternative promotion was “Now Showing” – a Hollywood themed collection scheme that replicated our Hollywood Collection proposal. It subsequently became the subject of our third High Court claim eventually settled out of Court by Shell for £100,000. So Shell had used another of our stolen concepts to bamboozle us into accepting far less that the proper value of our rights to “Make Money”.
The Make Money project had been given to another agency, Option One. We noticed from Andrew Lazenbys diaries supplied during the Nintendo/Now Showing discovery process that he had dinner with an Option One director, Tim Bonnet, during the crucial period. It became clear to us that Andrew was systematically siphoning off most of the Shell promotional work to Option One. They were given at least one major project for which they did not even tender. They were also involved in the Now Showing project.
Amazingly, from the discovery documents it became evident that during the period of the discussions with them about the Nintendo claim and our rights to the other proposals we had put forward, Shell was clandestinely engaged in taking forward replicas of three Don Marketing concepts - Make Money, the “Hollywood Collection” and the Shell led multibrand loyalty scheme. Bearing in mind that to the best of our knowledge three of the concepts had never been run before anywhere in the world, the odds against Shell developing four successive promotions, which by pure chance replicated our unique proposals, would be so great as to be beyond the realms of possibility, It brings to mind a comment by the renowned libel barrister, the late George Carman. He said in relation to Jonathan Aitkens line of defence in an old Bailey case: “A catalogue of coincidences which are so improbable as to be preposterous”.
On 21 April 1994, we had issued a High Court Writ and Statement of Claim against Shell in respect of the Nintendo GameBoy Promotion. In September 1994, we issued a High Court Writ and Statement of Claim against Shell in respect of the "Now Showing" promotion.
We had by that time become disenchanted with Shell's conduct, particularly the threats issued by their lawyers, who had threatened in writing to make the Nintendo litigation “drawn out and difficult”. The threat provided irrefutable evidence of their oppressive tactics against a small company that were clearly deliberately designed to drain our resources.
Following a CEDR mediation requested by Shell Legal Director Richard Wiseman and carried out by barrister Nicholas Prior and Jane Andrewartha of Clyde & Co Solicitors, Shell settled the Nintendo and Now Showing High Court actions for £200,000, plus costs.

THE INCOMPENTENCE OF ANDREW LAZENBY

Andrew had apparently learnt nothing from his role in producing the flawed Nintendo game. On 17th May 1994, when Shell launched the Make Money game, we were astonished to discover that the game was insecure to the extent that potentially, staff at participating sites could pick out all of the envelopes containing the winning half notes. Shell was well aware that there is no foolproof way to prevent dishonest staff from submitting claims using friends’ addresses. We notified David Pirret (Shell’s General Manager at the time) and David Varney. We also notified Sir John Jennings, the then Chairman of "Shell" Transport and Trading Co Plc. Our discussions with Shell on the Nintendo claim had been dragging on and on without any apparent prospects of resolution. Our legal costs were mounting. Andrews’s latest cock-up fortunately gave us an opportunity to get Shell management’s undivided attention.
On 19th May 1994, Shell took up our invitation to attend a meeting at the Fleet Street offices of our solicitors where we promised to demonstrate the insecurity of the new game. This was done in the presence of our solicitor, Richard Woodman. His near neighbour and friend, John Chambers, had recommended Richard to us. Both attended the same Church. Richard proved to be a great asset as a solicitor and genuine friend to John. Richard and I never got on particularly well, perhaps because I really am as cantankerous as some people seem to think. I believe that I am sweet and reasonable.
Three people represented Shell at the demonstration; Peter Whyte of Shell Retail; Alan Williams from Shell's Legal Division, and Nigel Rowley from Mackrell Turner Garrett. John Donovan and Roger Sotherton represented Don Marketing. They correctly identified the type of half note concealed in 7 out of the first 10 envelopes and then guaranteed a 100% success rate for all subsequent envelopes. They achieved this feat without opening the envelopes. Shell’s representatives did not take up the offer to continue with the demonstration. Our subsequent offer to identify the flaws in the security of the Make Money envelopes was declined by Shell’s lawyers because, as they indicated in a letter, Shell could see no advantage in knowing”
RELATED ARTICLES:
Breathtaking hypocrisy of Shell bosses Malcolm Brinded and Richard Wiseman

 

 

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HIGH COURT TRIAL JUNE/JULY 1999 Case No: DD04199 Court 58 John Alfred Donovan v. Shell UK Ltd

Transcript from Smith Bernal Reporting Ltd, 180 Fleet Street London

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Day 1: Tuesday June 15, 1999

Day 1: Tuesday June 15, 1999 Word Index 15 pages

Day 2: Wednesday June 16, 1999

Day 2: Wednesday June 16, 1999 Word Index 16 Pages

Day 3: Thursday June 17, 1999 47 Pages

Day 3: Thursday June 17, 1999 Word Index

Day 4: Friday June 18, 1999

Day 4: Friday June 18, 1999 One further page

Day 4, Friday June 18, 1999 Word Index

Day 5: Monday June 21, 1999 Transcript incl Word Index

Day 5: Monday June 21, 1999 Last page of Word Index

Day 6: Tuesday June 22, 1999 Includes Word Index

Day 7: Tuesday June 29, 1999

Day 7: Tuesday June 29, 1999 Word Index

Day 8: Wednesday June 30, 1999

Day 8: Wednesday June 30, 1999 Word Index

Day 9: Thursday July 1, 1999

Day 9: Thursday July 1, 1999 Word Index

Day 10: Friday July 2, 1999

Day 10: Friday July 2, 1999 Word Index

Report of Dr Audrey Giles 28 June 1999 The forensic examination of documents

Andrew Lazenby cross examination under oath by lead barrister Geoffrey Cox: Extract from trial

Email correspondence with Mr Justice Laddie (via Court Clerk Mr Peter Smith)

 

 

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Taped Telephone Conversations

First taped call Andrew Lazenby and John Donovan: 18 June 1993 *

Taped call David Patton (Nintento) and John Donovan: 18 June 1993 *

Second taped call Andrew Lazenby and John Donovan 18 June 1993 *

Third taped call Andrew Lazenby and John Donovan: 24 June 1993 *

Fourth taped call Andrew Lazenby and John Donovan: 5 July 1993 *

First taped call David Watson (Shell) John Donovan: 28 October 1993

Second taped call David Watson and John Donovan: 1 November 1993

Third taped call David Watson and John Donovan: 2 November 1993

Taped Conversation Mike Fairhurst (Senior KIng) and John Donovan: June 1993

Fifth taped call Andrew Lazenby and John Donovan: (Make Money conversation) 21 February 1994

Taped call Senior King and John Donovan: undated

Extracts from taped telephone conversation Donovan/Lazenby

 

 

Sinister Events Leading up to the Trial (all of this section plus more - see Dark Side of Royal Dutch Shell)

John Donovan letter to The European: 9 June 1998

Letter from the editor of The European: 11 June 1998

Letter to Dr Chris Fay, Chairman & CEO, Shell UK Limited: 15 June 1998

Reply letter from DJ Freeman on behalf of Dr Fay: 16 June 1998

My clients are most concerned to learn that you have received anonymous threatening telephone calls. That is certainly not their, nor this firm's, way of conducting lltigalion and I can certainly assure you that such behaviour would not be autborised or condoned by my clients.

Letter from John Donovan of Don Marketing to The European newspaper: 16 June 1998

Royds letter to DJ Freeman (with enclosures): 18 June 1998

Royds letter to John Donovan of Don Marketing: 18 June 1998

John Donovan letter to DJ Freeman: 18 June 1998

Correspondence between DJ Freeman (acting for Shell) and Royds Solicitors (acting for John Donovan: 19/23 June 1998

Extract from reply letter from Royds Treadwell.
As you can imagine we have taken detailed instructions from our client about the extremely disturbing anonymous telephone call he received ten days ago. We are entirely satisfied that this call could only have been made by someone connected with your Clients or fully briefed by them. The caller accurately informed John Donovan that your Clients were using private enquiry agents; accurately informed John Donovan that your Clients had retained the services of Shandwick Public Relations and Tequila (both of whom have recorded a number of visits to our Client's website); accurately recounted tbe events which bad taken place at Shell's AGM; and (probably) accurately recounted Dr. Fay's anger on that occasion.
The caller also stated that your Clients were "fed up with" the campaign which supports the litigation (particularly the "colourful website") and threatened that if this continues not only would the litigation prove financially ruinous to Mr. Donovan, he and his family would be "endangered".
At the same time you are also aware of the approaches our Client has received from someone calling himself "Charles Hoots". Are you in a position categorically to confirm that no one connected with Shell, DJ Freeman, Cofton Consultants or any other company instructed by Shell has at any time adopted this pseudonym when making enquiries of Mr. Donovan?

Letter from John Donovan of Don Marketing to Shell Chairman Mark Moody-Stuart: 23 June 1998

Letter from John Donovan of Don Marketing to Shell UK Legal Director Richard Wiseman: 23 June 1998

DJ Freeman letter to Royds Treadwell:24 June 1998

Letter from Shell UK Legal Director Richard Wiseman to John Donovan:24 June 1998

Extract
Dear Mr Donovan

I have your fax of 23 June. As you know we have tried to direct all correspondence through D J Freeman but I hope you will accept my direct response as an indication of how seriously all of us take your most recent allegations of threats having been made at our instigation.
So far as the visit of Mr Phillips is concerned, and his instructions, we wlll, as D J Freeman have said, co-operate with the police to the utmost extent. They are the only competent people to carry out an investigation into the alleged criminal acts.
We are confident that no criminal act was committed by anyone acting with Shell's approval. We do not think it appropriate for us to deal with the police through you or your solicitors but would welcome a direct approach.
You and your potential witnesses may rest assured that no intimidatory threats have come from or been authorised by Shell. We are as keen as you are to find the perpetrator who we suspect was trying to use you as the unwitting conduit for falsehoods about Shell.

Press Statement issued by Don Marketing:25 June 1998

Royds letter to DJ Freeman 25 June:1998

Mr Phillips enquiries at the business centre involved a straightforward deception of the receptionist.

Don Marketing Letter to Turners Enquiry Services:25 June 1998

Turner Investigators letter to Don Marketing:26 June 1998

Don Marketing letter to Chief Constable of Suffolk Police:29 June 1998

Don Marketing letter to Shell UK Legal Director Richard Wiseman:30 June 1998

Don Marketing letter to Shell Chairman Mark Moody-Stuart:30 June 1998

Letter from Richard Wiseman:1 July 1998 (Denying knowledge of "Mr Hoots")

Extract
So far as, I have been able to discover, nobody in any Shell company has any knowledge of Mr Hoots. We are all anxious to get to the bottom of this and our offer to co-operate witfl the police investigation stands. Indeed, I am surprised that I have not heard from them.

Letter from DJ Freeman to Don Marketing:3 July 1998

Letter from Shell UK Legal Director Richard Wiseman to John Donovan, Don Marketing:9 July 1998

Extracts
Both Mr Joseph and I have denied any Shell involvement in any of the intimidation you allege. The activities of Mr Phillips have, of course, been admitted.
Neither you, your family, nor any potential witness, has any cause for physical fear as a result of your prosecuting this case with all the vigour we have come to expect.

DJ Freeman letter to John Donovan Don Marketing:9 July 1998

Letter from Don Marketing to Office for Supervising of Solicitors:10 July 1998

Don Marketing letter to Marketing Week:21 July 1998

Letter from Don Marketing to Bury St Edmunds Police:22 July 1998

Turner Investigators letter to Don:5 August 1998

DJ Freeman letter to Don Marketing:7 August 1998

Extract
Shell have approached the Suffolk Constabulary directly on two occasions, once speaking directly to the Bury-St-Edmunds Police and once in writing to the Chief Constable. Shell have offered their full co- operation and support if the police choose to initiate an investigation into this incident which Shell finds as deplorable as you do.

DF Freeman letter to Don Marketing:11 August 1998

...there is an implication that Shell accepted that someone within Shell was responsible for the threats. This is not the case. Shell did conduct an investigation and are satisfied that no one within Shell was involved.

Don Marketing letter to Office for Supervising of Solicitors:26 August 1998

Suffolk Police letter to Mr Donovan:16 October 1998

Further related correspondence:

 

THE SMART TRIAL: AMBUSH, DECEPTION, ENTRAPMENT AND CONFLICT OF INTEREST

WITNESS STATEMENT OF SHELL UK LEGAL DIRECTOR: RICHARD MAX WISEMAN 13 April 1999 (Now retired Chief Ethics and Compliance Officer, Royal Dutch Shell Plc)

Report of Dr Audrey Giles, The Giles Document Laboratory: 28 June 1999

Judges Comments: Comments made in Open Court by Mr Justice Laddie: 6 July 1999

(Marketing Week article quoted in comments)

Clear from above comments that Judge was hopelessly biased

 

Shell withheld the true terms of settlement from the Judge.

This is confirmed in an email sent to me by Mr. Wiseman on 17 June 1998

The first email at the top of a related email string. Please read them all.

As can be seen, at the time of making the above comments, the Judge was totally unaware that Shell had paid my legal fees and that I had received a secret payment.

The Judge thought I had surrendered when in fact it was the other way round.

 

Email correspondence with Peter Smith, Clerk to Mr Justice Laddie: November 2002

Email correspondence with Mark Platt-Mills QC (copied to Richard Wiseman): 30 January 2003

Email from Richard Wiseman confirming that settlement terms had been withheld from the Judge: 17 June 2008

 

ASSORTED

The Shell Game Booklet: May 1995

DOMAIN NAME BATTLE

WIPO Notification to Alfred Donovan of Shell proceedings: 25 May 2005

Shell Complaint Document: 18 May 2005 (46 Pages)

Wall Street Journal Article: 2 June 2005

Donovan Response Document: 14 June 2005 (Includes Shell financial docs and postings from "Tell Shell"

Transition of FORTHDEAL LIMITED to Royal Dutch Shell Plc: Shell financial transition docs obtained from Companies House 31 May 2005

WIPO Notification of Decision: 11 August 2005