CHAPTER 21 – “DISCOVERY”
Discovery is the part of the pre-trial process whereby the parties to the litigation are obliged under penalty of law to exchange all documents in their possession, custody or control, which are in any way relevant to the case. This applies to any document, which may contain information that would enable a party either to advance his own case or damage the case of his opponent.
You may have read a John Grisham novel, or seen a movie whereby one side in a case about to come to trial tries to hide vital information by burying it in a ton of documents, most of which have no connection with the matters before the Court. The film “Class Action” starring Gene Hackman provided a classic example of the “paper blizzard” ploy.
When my son went to the London offices of D J Freeman to inspect Shell’s discovery documents he was confronted by a mountain of documents in countless boxes. Many of the documents bore no possible relationship to his case against Shell. John immediately remembered the buried evidence tactic. His lawyers thought it best that John personally undertook the task of examining Shell’s discovery because he was more familiar with relevant issues than anyone else.
There was also a question of costs: there was such an enormous amount of documents that it would have cost thousands of pounds just to have it all photocopied so that we could have then checked through the copies at our leisure at our own premises. It was also preferable to view the originals where possible than copies taken from sometimes-faded documents.
As he guessed that information had deliberately been buried within the mountain of paper John decided that he would travel into London every day for as long as was necessary. It took several days. If one of his lawyers had undertaken the task it would have cost a small fortune.
Someone from D J Freeman was present all of the time to protect the documents from the risk of tampering i.e. the possibility of John inserting new documents or removing or altering documents - the considerations that apply when anyone (including a burglar) has access to documents.
The guarding of the documents was an understandable precaution but it all put extra pressure on John because the succession of stewards had to leave from time to time to use the rest room or take a break. Worse, some tried to start up conversations when John was trying very hard to keep his concentration on the job at hand. There were also constant changes of office even on one occasion, a move to an office in building at a different location.
Fortunately John has a good memory. This was a great help because all of the letters relating to an individual or an agency were not together in one file but interspersed over thousands of pages in a jigsaw of evidence spread across different boxes. Consequently, if he found something interesting, which potentially tied in with something seen earlier, perhaps even days previously, he had to search back through endless boxes to find what he was looking for. It was truly a horrendous task.
Fortunately his strenuous efforts under the most unsatisfactory circumstances, proved to be well worthwhile particularly in terms of what is known as “Similar Fact Evidence” i.e. evidence which shows a pattern of behaviour.
MR JOHN ARMSTRONG-HOLMES
John noticed that a Mr John Armstrong-Holmes had put a proposal forward to Andrew Lazenby for a gardening themed promotion called “Spring into Shell”. There had been correspondence and telephone discussions following the initial presentation that Armstrong-Holmes had made to Andrew at Shell-Mex House. The idea was researched by Shell. Unbeknown to Armstrong-Holmes, Andrew then built into the SMART scheme elements from his proposal and apparently even used the garden plant supplier firm that he had disclosed to Andrew. The discussions that Mr Armstrong-Holmes had with Andrew Lazenby petered out over a period of months. The pattern was similar to that with Don Marketing. Andrew had promised that he would contact Armstrong-Holmes if there were any progress. John had no success in trying to contact Armstrong-Holmes at the address shown on the proposal and in correspondence (which had taken place several years earlier). Since his evidence was potentially crucial, we hired a firm of private investigators to track him down, which they managed to do very quickly. Mr Armstrong-Holmes was staggered to learn what had happened. He was appalled at the news and expressed a willingness to act as a witness.
SENIOR KING: At the time when Andrew took over as National Promotions Manager, Shell’s then retained agency, Senior King, was already engaged in looking at opportunities for electronic based loyalty schemes for Shell under the code name of “Project Onyx”. They put a very considerable amount of confidential development work into the project in collaboration with an overseas supplier of specialist electronic technology, a company called Schlumberger. Soon after they disclosed the relationship to Andrew, he instructed Option One, the agency with whom he had a special relationship, to go behind the back of Senior King direct to Schlumberger. John found letters dated 1st and 5th March 1993 from Steve King of Senior King who had written to Shell management complaining in the strongest terms about how Option One, acting on the instructions of Mr Lazenby, had cut them out and had “hi-jacked” their supplier. Shell subsequently fired Senior King at the behest of Andrew Lazenby.
The discovery documents contained a note written by a Shell employee, which stated that Senior King was negative about Andrew Lazenby because Andrew Lazenby was “pissed off” with them. This explains the evidence in discovery that he vindictively imposed terms on Senior King in a tender process, which did not apply to other companies pitching for the same project. This was clearly fundamentally wrong as all parties in a tender process are supposed to be treated equally. There was also a note from Ian Brown (of Shell) relating to written allegations made by Senior King against Andrew Lazenby. Ian Brown was concerned about the “sensitivities and coincidences with the claim of Don”.
We had contact with Senior King soon after the above events had taken place. Firstly, my son had a telephone conversation with Mike Fairhurst, who had been the Shell Account Director for Senior King. Mr Fairhurst volunteered the information that Andrew Lazenby had “turned round all sorts of things that we’ve put forward”. He commented: “I wouldn’t trust Mr Lazenby as far as I could spit”. He also said, “He’s a liar mate”… “he hasn’t got any scruples at all…” Secondly, we heard direct from Steve King, the Chairman of Senior King, who confirmed that they had no problems at all until Andrew Lazenby took over as Promotions Manager. He stated in writing: “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”. In other words, he stole ideas.
CONCEPT SYSTEMS LIMITED
In June 1992, Mike McMahon, a director of a company called Concept Systems put forward proposals to Andrew Lazenby in connection with loyalty card schemes. On 30th July 1992, David Watson made a hand-written note headed “Concept Loyalty – Mike McMahon”. He noted that it had “Joined forces with one De La Rue org – Fortronic is a part of De La Rue”. In October 1992, Lazenby circulated a typewritten note to David Watson and Tim Hannagan. He explained his reasons for rejecting Concept Systems but added an interesting note: “Possibility of using Fortronic technology independently”. He eventually did just that, subsequently awarding a major contract to Fortronic, thereby cutting out Concept Systems even though he knew about its association with Fortronic (the same ploy that he had used with Senior King). Thus, Concept Systems did a lot of the groundwork for Shell yet received no payment or credit even though a major contract stemmed directly from their discussions with Lazenby. John had to use private investigators to find Mike McMahon who was astonished to find out what had happened. Concept Systems had gone to the wall because Shell had ripped them off in a most callous and ruthless way.
PROJECT HERCULES: Andrew headed up a team working on Project Hercules, which replaced Project Onyx. Documents showed that 14 prospective suppliers were involved in the pitch for what eventually became Shell SMART. A copy of a note listing potential suppliers/agencies contained hand-written notes made in Mr Lazenbys handwriting in which he used “X’s” and circles on the listed numbers to create a shortlist. The companies marked with “X’s” were subsequently expelled from the pitch process. A hand-written note by Andrew Lazenby dated 14th August 1992 listed the companies he had short-listed. He then asked a Shell legal advisor to prepare a confidentiality agreement for completion by each of the short listed companies. The agreement required that they would not offer their services or products to any other oil company during the continuing tender process.
Mr Lazenby then decided to reduce his shortlist to two companies, Geoff Howe & Associates and Senior King. In other words, he had decided to reject the other companies on the shortlist, which included Concept Systems. However, he did not want to release the rejects from the agreement because they might approach other oil companies. He therefore decided to “Keep rejects holding as long as poss.”, as per an incriminating handwritten note dated 23rd October 1992 that he sent to his colleagues, David Watson and Tim Hannagan.
Andrew Lazenby wrote to the rejects; McCorquodale; Concept Systems; AT & T Istel; and Sheard Thomson Harris, giving them the false news that they were still in contention, saying “please bear with us – we will revert to you when we have made any further progress”. A message that was almost identical to his faxed note to Don Marketing about the Nintendo and Hollywood Collection proposals. Andrew also requested further extensive information as part of his excuse for keeping them waiting. This resulted in the relevant companies investing even more time and resources on a speculative basis in what was actually already a lost cause. Copies of his letters, all marked “CONFIDENTIAL”, were supplied at the time to his colleague Tim Hannagan.
It is worth stressing again that all of the rejects had, at Mr Lazenbys behest, previously been required to sign confidentiality agreements with Shell, which prevented them from offering goods and services to other oil companies whilst the “tendering process” was still in progress. Obviously Mr Lazenby and his management colleagues had no regard for the requirement under Shell’s Statement of General Business Principles of fair competition and transparency.
Eventually even the two remaining companies were ejected from the tender process and the assignment was given to an agency that had never even been in contention i.e. had never even been in the tendering process. You have guessed the name by now, Option One. Discovery documents in the form of Andrews’s diaries provided evidence that he had a personal relationship with Option One. He went out with their Directors to the Theatre. He had nights out at restaurants. He had an offshore bank account. He later admitted under oath that he entertained his Option One friends at his own home.
The documents also showed that Andrew had passed on to Option One what Shell had learnt about developments in the electronics field “so far as he could within the bounds of confidentiality”. This included information obtained from supplier’s under the false pretence that they were still acting within the tender process. We now realised why Mr Hannagan in his witness statement was trying to distance himself as much as possible from the skulduggery used in the tender process.
The repercussions hit both of the displaced agencies, Senior King and Geoff Howe & Associates, with redundancies from Director level downwards. In other words, people’s lives were ruined by Lazenbys actions.
There was further documentary evidence of Andrew Lazenbys double dealing while he was Shell’s National Promotions Manager.
AIR MILES: During a clandestine meeting with the then Managing Director of Premier Incentives, Ken Liveridge, Andrew Lazenby received highly confidential information about Mobil’s promotional plans (Mobil was at that time a major rival UK petrol brand). As a result, Lazenby contemplated substituting on Shell forecourts, a “Premier Points” loyalty scheme instead of the “Air Miles” scheme run by British Airways. He did not consider Air Miles to be a “mass market promotion”. Lazenby was contemplating ditching Air Miles because Shell had recently obtained some very negative research about Air Miles. A few days later, Mr Lazenby was wining and dining an unsuspecting Air Miles executive as if nothing had happened.
There was also documentary evidence in the form of an email from Lazenby to his colleagues stating his willingness to engage in “illegal” activity despite the prospect that it could be discovered. The email he circulated to senior Shell managers on 4th November 1993 (in relation to the SMART scheme) contained the following comment: “My note of 25/10 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 position…”
John also noticed that the discovery contained crucial documents relating to the “Nintendo/Now Showing” litigation which contrary to discovery rules, Shell had failed to produce in that litigation - a very serious matter.
I found the various items cited in my biography (such as the informative Lazenby gem above) when I recently checked the set of discovery documents supplied to my son for the trial. I was never given a set of the trial documents even though I was a separate Defendant to the Counterclaim brought by Shell. I had no legal representation at that time to advise me on such matters. This was due I suspect to an underhand intervention with the Legal Aid Board by Shell (I know for certain that Shell scuttled my sons Legal Aid application by secretly making an unfounded allegation against him). Further details are given in a later chapter. I understand that in any event most if not all of the cited documents were mentioned during the trial in open court.
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