CHAPTER 13 - THE FUNDING DEED
By the time the offer was converted into an agreement in July 1995 (called the “Funding Deed”), it was very much a commercial transaction and there were numerous strings attached.
We had to: -
1. Withdraw the libel action I had brought against Shell in respect of the press statement they had issued in March 1995. (Thus the funding deal was in part a consideration in respect of discontinuing my libel action against Shell).
2. Withdraw the litigation in respect of the failed mediation.
3. Close down the Shell Corporate Conscience Pressure Group forthwith.
4. Write letters (to be approved by Shell) to all parties who had previously received letters from Don Marketing making allegations about Shell.
5. Enter into a further confidentiality agreement.
We were also subsequently instructed not to supply the Advertising Standards Authority with important information about an investigation it was carrying out into the flawed Make Money game. In other words, Shell deliberately obstructed an official investigation.
The Shell lawyers defending our claims against Shell were also given the responsibility to release staged payments to our lawyers to cover our legal fees. It subsequently became evident that the people involved, Richard Wiseman of Shell and Nigel Rowley of Mackrell Turner Garrett, were dead set against the funding agreement. We later discovered that even Dr Fay felt the same – the proposal had been forced on him by Sir John Jennings. In any event, the temptation of having a dual responsibility was too much. Because they controlled the release of funds to cover our legal costs Richard Wiseman and Nigel Rowley soon attempted to restrain and manipulate the way we were able to pursue the litigation.
Subsequently, under a false pretext (that we had conducted the litigation in “an unreasonable and uneconomic manner”), Nigel Rowley notified us that HE considered that the agreement was at an end and consequently would refuse to release further funds. He offered in a separate letter accompanying the notification, that Shell would enter into “without prejudice” discussions on the matter. Their cynical manoeuvre was tantamount to blackmail.
We believe that Rowley’s threat was made because matters had became more complicated after Roger Sotherton had brought a High Court action against Don Marketing for a share in settlements, which he wrongly believed, had already taken place. Roger could never have guessed the true circumstances about how we were suddenly in funds (from being reimbursed for legal fees already paid) and how we were able to continue the litigation against Shell when a short time earlier we had been flat broke. I would have been just as baffled if I had not known the bizarre truth.
Because of the confidentiality agreement attached to the funding deal, we had been unable to advise him of the true situation. Shell intervened by contacting him direct but whatever they said, it did not work - Roger continued with his claim against us. We later learnt that they had tried to draw him into a confidentiality agreement but he was unwillingly to do so without a monetary settlement to cover his claim. Shell was desperate to get him under control after he went to the Shell AGM in 1996 and publicly raised some extremely awkward questions with Sir John Jennings.
My son subsequently attended the “without prejudice” discussions at Shell-Mex House with our solicitor, Richard Woodman. They met Richard Wiseman and Ian Brown, both from Shell’s Legal Department.
Richard Wiseman confirmed that the Funding Deed (which he described as being “bananas”) had been offered contrary to his advice and the advice of Nigel Rowley. Wiseman went on to formally apologise on behalf of the board of directors of Shell UK for the way Don Marketing had been treated. Ian Brown acknowledged that we did have a valid claim in respect of the Make Money action. However he said that he thought our tactics had been despicable. His face contorted with rage when he made the comment. John made it clear how annoyed we were that Shell had secretly gone ahead with the Make Money project even though Shell was fully aware of the joint rights agreement.
Richard Wiseman said that matters were now being decided at a very high level. Dr Fay was reporting to a Group Managing Director of Royal Dutch Shell, presumably Sir John Jennings or Sir Philip Watts. Sir Mark Moody-Stuart, another Group Managing Director of Royal Dutch Shell, was also “in the loop”. Wiseman offered the sum of £35,000 to settle the claims. My son rejected the offer. Wiseman then proposed putting the claims to mediation – an offer that because of the uncertainty attached to the funding deed, we had little option but to accept. One condition demanded by Shell was that Roger Sotherton had to agree to the mediation so that the outstanding disputes could hopefully all be resolved simultaneously.
In the course of negotiating the mediation John attended a meeting at the London offices of the “Centre for Mediation”. Richard Wiseman and Nigel Rowley represented Shell. Roger Sotherton was also present.
Richard Woodman’s assistant, a good looking brilliant young trainee solicitor, Mr Carl Vincent, attended on behalf of our solicitors. Carl caused much amusement to Richard Wiseman and Nigel Rowley when he was spotted through a side window arriving on a racing bike, wearing bicycle clicks around the bottom of his trousers. Carl had been intimately involved in the case and Richard Woodman therefore knew that he was fully conversant with all aspects of the litigation and could be relied upon to deal with the important matter of negotiating the terms of mediation. Carl had no problem in going head-to-head with Wiseman and Rowley, even though outnumbered two to one. He was not the least bit phased by being confronted by the Legal Director of Shell and a senior partner in a leading firm of solicitors. Carl obviously had an outstanding intellect and a glittering career in front of him. Richard Wiseman had discovered that first impressions can truly be misleading. Carl even cleverly persuaded Wiseman to pay for our costs in respect of the mediation.
Carl Vincent also substituted for our solicitor Richard Woodman at a Conference with Dr Mary Vitoria QC at which the possibility of a further claim against Shell arising from a multi-partner promotional concept we had put to Andrew Lazenby was discussed at length.
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