Royal Dutch Shell Group .com
ROYAL DUTCH SHELL "NOTICE TO SHOW CAUSE" PROCEEDINGS AGAINST DR. HUONG: PART ONE
By Alfred Donovan
I have published below a letter from TH Liew, the solicitors acting for the EIGHT Royal Dutch Shell companies collectively suing Dr Huong for alleged defamation in respect of postings on this website. The letter was the cover letter in respect of the "NOTICE TO SHOW CAUSE" proceedings served on Dr Huong last Wednesday, 15 Match 2006 notifying the intention to issue contempt of court proceedings.
Paragraphs 18 & 10 of the NOTICE TO SHOW CAUSE stated as follows: -
18. Our clients intend to issue contempt proceedings against you for the above breaches of the Order.
19. We therefore now provide you with this formal notice for you to show cause within 10 days of its service on you, why you should not be committed to prison or fined for the above contempt.
Consequently this is a most serious matter.
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 have been asked by Dr Huong and his lawyers to supply an Affidavit testifying to the facts.
To facilitate this request Dr Huong emailed copies of the legal papers served on him and has stipulated that they must not on any account be published. For reasons indicated in the article published on 21 March 2006 (accessible via the link below), I intend to disregard this stipulation. I am not the agent or servant of Dr Huong or anyone else and I am not subject to the legal jurisdiction of the High Court of Malaya. I may decide to publish the relevant email from Dr Huong in due course. Shell can always bring proceedings against me in the appropriate jurisdiction should it so desire.
I will publish the legal papers and my draft response to the allegations contained therein in a series of articles, rather than in a single article. Today I deal with the cover letter and section 1 of the NOTICE TO SHOW CAUSE.
I have added in red print my comments on the allegations and issues raised by the solicitors acting for Shell. I will also deal with allegations and primary issues in the REPLY filed by Shell in response to the recent DEFENCE document of Dr Huong. All of the yellow highlighting is mine. For ease of reading I have converted all text to Arial font.
THE COVER LETTER FROM TH LIEW & PARTNERS
TH Liew & Partners
ADVOCATES & SOLICITORS | PEGUAMBELA & PEGUAMCARA
TRADE MARK AGENTS
Your Ref :
Our Ref : LTH/SHELL/00011-04
9 March 2006
Huong Yiu Tuong
KUALA LUMPUR HIGH COURT CIVIL SUIT NO. S2-23-41-2004
SARAWAK SHELL BHD & 7 ORS v HUONG YIU TUONG
We refer to the above matter.
Our client considers your conduct in your respect of your persistent internet postings, to be clearly in breach and in blatant disregard of the injunction order made against you by the Kuala Lumpur High Court in this action.
Accordingly, we have been instructed and do hereby serve on you a Notice To Show Cause Under Order 52 Rule IB of the Rules of the High Court, 1980.
Please acknowledge receipt.
All our client's rights are expressly reserved.
Liew Teck Huat
4-02, 4lh Floor, Straits Trading Building, 2 Lebuh Pasar Besar, 50050 Kuala Lumpur I
Telephone (60) 3 26129000 Facsimile (60) 3 26129001
PART ONE OF THE NOTICE TO SHOW CAUSE
HIGH COURT OF MALAYA AT KUALA LUMPUR
SUIT NO. S2 - 23 - 41 - 2004
1. SARAWAK SHELL BHD (71978-W)
2. SHELL MALAYSIA TRADING SENDIRIAN BERHAD (6078-M)
3. SHELL REFINING COMPANY (FEDERATION OF MALAYA) BHD (3926-U)
4. SHELL TIMUR SDN BHD (113304-H)
5. SHELL EXPLORATION AND PRODUCTION MALAYSIA B.V. (993963-V)
6. SHELL OIL AND GAS (MALAYSIA) LLC (993830-X)
7. SHELL SABAH SELATAN SDN BHD (228504-T)
8. SABAH SHELL PETROLEUM COMPANY LTD (993229-W) ... PLAINTIFFS
HUONG YIU TUONG ... DEFENDANT
NOTICE TO SHOW CAUSE UNDER ORDER 52 RULE IB OF THE
RULES OF THE HIGH COURT, 1980
To: Huong Yiu Tuong
Lot 845, Pujut4C
1. On 24.6.04 the High Court made an Order against you, the Defendant, in this action, on inter alia the following terms:
"The Defendant, by himself, his servants or agents or otherwise howsoever, be restrained from publishing or causing to be published on the internet website "Shell Whistleblower No. 2" any statements, articles, correspondence and any other publications whatsoever, concerning the Plaintiffs' and/or "Shell Management" and/or the Plaintiffs' Management Officers and/or the Plaintiffs' servants or agents alleging that they or each or them are liars, cheats, dishonest, corrupted and practised deception and conspiracy, criminal conduct and were generally evil, and/or statements to similar effect, pending the trial of this action or further order.
The Defendant, by himself, his servants or agents or otherwise howsoever, be restrained from publishing or causing to be published any article, material correspondence, circulars in any form whatsoever containing allegations that the Plaintiffs and/or "Shell Malaysia" and/or the Plaintiffs' servants or agents are liars, cheats, dishonest, corrupted and practised deception and conspiracy, criminal conduct and were generally evil, and/or statements to similar effect, pending the trial of this action or further order".
ASSOCIATED DRAFT AFFIDAVIT BY ALFRED DONOVAN
It may assist the Court if I provide some overall background information. I own and operate Shell related websites with the help of my son John. He assists me with my websites and associated matters as I am almost 89 years old. Thus whenever I use the terms “we” or “us”, I am referring to my son and me.
Dr Huong made contact with us after stumbling across my Shell2004.com website in or around April 2004. It operates under a number of domain name aliases, all directed to the same website. None of the domain names resemble in any way the website names “Shell Whistleblower No. 2” or “Whistleblower No. 2” cited by the Plaintiff companies in the originating legal proceedings on which the interim Injunction and Restraining Order were obtained.
Dr Huong sought our advice after reading about our long business association with Shell, in my case stretching back 49 years. He was also aware of our successful High Court actions against Shell. Rather than setting out why my son and I have campaigned against Shell for over a decade, I would simply draw attention to the article on our website under the headline: “ROYAL DUTCH SHELL PLC DOTCOM, THE ULTIMATE INTERNET GRIPE SITE”.
The articles which resulted in the defamation proceedings by Shell against Dr Huong in June 2004 were submitted to us by Dr Huong as rough drafts. After telephone conversations *my son had on my behalf with Dr Huong we added additional commentary published under his name based on our interpretation of the additional information. We also added extracts from salient information we had already published which tied in with the themes raised by Dr Huong in his rough drafts. (It is extracts from our extracts which were mostly cited in the subsequent proceeding against Dr Huong.) We finally edited the articles and published them on my website shell2004.com at my sole responsibility as the publisher, without referral to Dr Huong. We alone decided on the overall design layout, colours, font, content and titles of the web pages. We identified Dr Huong by name as the author and also referred to him as "SHELL WHISTLEBLOWER No 2" in webpage titles. There has never to my knowledge been an actual internet website known as "Shell Whistleblower No.2", as incorrectly stated in the originating legal proceedings. Dr Huong relied on our expertise and experience to ensure that the publication by me was proper.
At no time have we received any payment or consideration of any kind from Dr Huong or anyone else in connection with my websites or anything published thereon. We have never acted as an agent or servant of Dr Huong or anyone else. We have never had subscription charges or any advertising on any of our Shell related websites. ALL services have always been completely FREE in every respect. They are non-commercial websites run to promote what we consider to be a worthy cause; a campaign for Shell management to abide by Shell's own STATEMENT OF GENERAL BUSINESS PRINCIPLES requiring honesty, integrity, transparency, and respect for people, in all of Shell's dealings.
On or around 6 July 2004, within days of the initial legal proceedings by the Plaintiff companies against Dr Huong, I sent a fax to the Judge in Malaysia who granted the Injunction/Restraining Order. In the faxed letter I disclosed my key role in the publication of the articles which led to the litigation.
Following the Court Orders obtained against Dr Huong by the Royal Dutch Shell Plaintiff companies, Dr Huong has also relied on our judgement and experience about what is appropriate to publish on our website relating to him so that any such publications do not breach the court orders.
Since the commencement of the defamation action I cannot recall up to the point of the legal papers being served on Dr Huong on 17 March 2006 any objection raised by Shell in relation to publication on my website of any subsequent articles associated with Dr Huong.
In an email I received from Royal Dutch Shell General Counsel, Mr Richard Wiseman on 14 November 2005, he discussed the content of my website, Shell2004.com, the website on which the articles were originally published. In fact he registered an objection to a feature relating to Royal Dutch Shell Plc Chief Executive Jeroen van der Veer. I had in my email actually raised the subject of Dr Huong. Mr Wiseman therefore had the opportunity to also register any objection to postings associated with Dr Huong, but simply stated: “For reasons I am sure you will understand, I do not propose to comment on the current litigation with Doctor Huong.”
Some degree of confusion may have arisen following the High Court Injunction in regard to us deciding what is appropriate to publish because we have to bear in mind the different approach that Shell takes in regards to my right to criticise Shell on the internet, as opposed to the rights of Dr Huong.
In this connection I draw attention to the following Shell statements.
The first was made by Shell International Petroleum Company Limited in a legal document submitted to The World Intellectual Property Organisation on 18 May 2005 on behalf of the Royal Dutch Shell Group in relation to my website. It stated: "The Complainant and the Group it represents have been aware of the site since the beginning and whilst they would not endorse or agree with many of the comments made by the Respondent on the website, they have taken the view that the Respondent is entitled to express his opinions and to use the Internet as a medium for doing so."
The second was an email from Shell International General Counsel Richard Wiseman which I received on 11th November 2005. Mr Wiseman said: “The extraordinary tolerance shown to your internet activities ought to demonstrate better than anything else the fact that we are uninterested in, and unmoved by, your current activities.” Those “activities” included the posting of what are now known as the "Shell Whistleblower No 2" articles . Shell has not launched proceedings against me although Mr Wiseman, Jeroen van der Veer and other senior Shell executives are aware that I was a joint author of the articles and the sole publisher because I advised them accordingly.
Thus Shell clearly for some unknown reason sets a different standard for website postings by me in my name, as opposed to website postings also made by me on the same website (my website) but under the name of Dr Huong. It is very difficult under such circumstances to make editorial judgements about what is appropriate to publish in relation to Dr Huong . I am permitted freedom of expression but this fundamental human right under the UN Universal Declaration of Human Rights which Shell purports to support is not extended to Dr Huong.
The lawyers acting for the Plaintiff Royal Dutch Shell companies have known since July 2004 when I wrote to them that the website cited in the originating legal proceedings did not exist, that I was a joint author of the relevant articles, and me, not Dr Huong, was the publisher. Despite these facts they have doggedly pursued the action against Dr Huong clinging resolutely to the delusions/blunders set out in the original proceedings. The "persistent internet postings" have been carried out by me, not by Dr Huong. However, for some reason Shell does not apparently wish to institute proceedings against the party actually responsible for publishing the alleged defamatory articles (me).
I do know that the Royal Dutch Shell Group was monitoring my activities at a very high level during that period. A Shell internal email sent from Mr Wiseman to Jeroen van der Veer and his fellow executive director of Royal Dutch Shell Plc, Mr Malcolm Brinded, concerning my activities fell into our hands. Mr Wiseman's email, dated 24 June 2004 stated: "I am getting PX to send out our usual response to the association of British Insurers. I will also let Mark Moody-Stuart know that Donovan is now accusing Mark's brother of being in on the act." Sir Mark Moody Stuart was a director of Shell at the time and was formally Group Chairman of the Royal Dutch Shell Group. The revelation of the content led to an admittance by Mr Wiseman that Shell's "PX" department has a standard statement which it sends out to third parties with whom I get into contact.
I believe that Shell's "tolerance" of my activities including internet postings is not based on respect for my age - Shell had no compunction about suing me in the UK High Court when I was a mere 81 years old - but because Shell management is aware of the volume of documentary evidence in our possession regarding its misdeeds. A further confirmation that age has no bearing in such consideration by Shell management is that Shell launched proceedings against me last year via the World Intellectual Property Organisation in an attempt to seize my Shell related domain names, including the top level domain name for their new $223 billion USD parent company, Royal Dutch Shell Plc .com and for the entire Group: Royal Dutch Shell Group .com. Shell came unstuck in those proceedings and I retain and use of all three Shell domains in question.
If Shell management had abided by Shell's STATEMENT OF GENERAL BUSINESS PRINCIPLES the shameful reserves fraud which ended the 100 year old business partnership of The Shell Transport and Trading Company Plc and Royal Dutch Petroleum Company would never have occurred. The scandal resulted in high level sackings, massive fines by financial regulators and multibillion USD class action lawsuits. It also led to the recent merger into Royal Dutch Shell PLC after unprecedented pressure from Shell shocked shareholders .
My son, John Donovan, speaks by telephone to Dr Huong because I have poor hearing and rarely use the telephone. John has spoken on my behalf to various news organisations, including for example Chip Cummins at the Wall Street Journal, as was acknowledged in the related news report below. My poor hear was mentioned in the article.
The Wall Street Journal: Shell wages legal fight over web domain name: "Later this summer, oil giant Royal Dutch/Shell Group is expected to merge its two parent companies, creating a new corporate entity: Royal Dutch Shell PLC. But go to www.royaldutchshellplc.com and you will find a crude Web site in garish colors where Alfred Donovan, an 88-year-old British army veteran, posts dozens of media reports and commentary, most of it negative, about Shell and the accounting scandal that plagued it last year. Just after Shell unveiled the name of the new entity last October, Mr. Donovan -- who has had frequent legal battles with Shell -- snapped up the rights to the Web site." (ShellNews.net) 2 June 05
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