Chapter 3: The Legal Machine

If you ask an ordinary businessman what happens when a much larger company does him wrong, he may give you the official answer: you sue. If you ask the same man again after he has actually tried it, the answer grows less tidy.

During one Shell annual general meeting, my father Alfred put the point publicly in almost those terms. Whenever smaller businesses had problems with Shell, he said, the answer seemed to be: if you do not like our solution, sue us. That may sound perfectly reasonable to people who have never had to finance litigation against a multinational. In practice it is often another way of saying: here is a door you are free to open, provided you are wealthy enough to survive what lies behind it.

Sir John Jennings, to his credit, answered in a way that sounded humane. He said disputes ought to be resolved in a sensible, balanced and objective way, and not in a way that simply reflected the relative size of the two disputants. That was well said. It was the sort of sentence a decent person would hope to hear from the chairman of a great company. It also captured, perhaps without intending to, the central problem. Everything in my experience suggested that relative size was precisely the point.

This was not some obscure local grievance buried in a legal drawer. By 28 April 1997, Shell's General Counsel and Company Secretary, Richard Wiseman, was already writing that Dr Jennings, Dr Fay, and Mr Herkstroter had passed my letters to him. Then, on 14 May 1997, he referred again to my letters to Herkstroter and Dr Jennings, to what had been discussed at the AGM, and said he was personally keeping both Shell U.K. and Shell Transport directors informed of progress in the case. The matter had plainly travelled upward. It was being watched at senior level.

Once my relationship with Shell broke down, the matter did not proceed like an elegant disagreement between honourable parties. It hardened. It spread. It became legal. And once that happened, the atmosphere changed completely. A commercial dispute still leaves room for practical sense, embarrassment, improvisation, perhaps even decency. A legal dispute brings a different climate: letters written as weapons, meanings narrowed to suit the occasion, memory turning selective, strength measured not by who is right but by who can keep paying.

By March 1995 the trade press was already catching the flavour of it. Marketing Week reported that Shell was seeking GBP62,000 security for costs from Don. That detail has stayed with me because it captured the broader reality better than any speech about fairness. Shell was not merely defending itself. It was leaning on the oldest lever available to a larger party: money.

I will spare the reader every writ, pleading and counterclaim. I lived through them; that is enough. But the scale matters. As I remember the tally, there were four High Court actions for breach of contract and breach of confidence, two more for libel, a county court claim, Shell counterclaims, and settlements in which Shell paid the legal costs. This all took years. What had begun as an issue of confidence and fairness became a system, and systems have appetites.

The paperwork itself had a deadening grandeur. There were funding arrangements, writs, defence and counterclaim papers, witness statements, document reports, confidential correspondence, later complaints about how aspects of the case had been handled, and the sort of transcript trail that makes an ordinary businessman feel he has accidentally acquired a second profession in paper. That accumulation matters because it shows the dispute was never just a sulk or a publicity stunt. It was documented combat.

By April 1998 the same trade paper was reporting the High Court writ over the Smart Card loyalty scheme and Shell's public line that it intended to defend vigorously. Dry words on a trade-press page, perhaps. But that is how these battles often look from the outside while they are chewing up the people inside them.

By November 1998, we can see that the legal machine was operating internally as well. A surviving Shell FUEL FOR THOUGHT page headed DEFENDING THE COMPANY'S GOOD NAME AND REPUTATION, together with a staff factsheet called DON MARKETING: THE FACTS, shows Shell presenting me to staff as a man making unpleasant allegations, insisting it was vigorously defending the Smart writ, saying earlier cases had been settled for good economic reasons, and even acknowledging the risk that I could present myself as a 'David' fighting a 'Goliath'. It also defended AJL directly and said Shell was satisfied he had done nothing wrong. That showed the dispute was not confined to court bundles and solicitor's letters. Shell was also shaping the internal narrative about it.

One of the most important things about litigation is that it colonises more than the diary. It colonises the imagination. It becomes the thing around which the family must plan. It changes conversations over breakfast. It changes what money is for. Houses stop being homes and become reserves. Time stops being life and becomes preparation, waiting, cost, delay, response, next move. When people speak casually of going to law, they usually imagine a route to justice. What I discovered was a machine for attrition.

That machine was especially brutal because the imbalance was obvious from the start. I knew we were outgunned. Any sensible man would have known it. Shell had the money, the lawyers, the institutional stamina, and the corporate habit of treating prolonged dispute as a manageable business cost. We had conviction, documents, creativity, and the willingness to keep going far longer than most people would have thought prudent. That sounds romantic in retrospect. At the time it was merely expensive.

I sold two houses to help fund the litigation. My parents sold theirs to pay lawyers. When the money finally ran out, we applied for legal aid and were granted it. Then, as I understand it, Shell intervened with information that led to the legal aid being withdrawn. We sought judicial review, but the Smart case came on in the High Court in June 1999 before the judicial review could be heard, which placed us under still greater pressure. This is the sort of detail that rarely appears in a corporate account of a dispute. Companies prefer the clean outline of principle. The human story is messier: the sale of homes, the exhaustion of means, the sense that one is being required to finance the privilege of resisting a wrong.

At times my family and I felt bombarded with threats. That belongs in the story too. The legal machine does not work only through formal filings. It works through atmosphere. It makes itself felt in the house, at the table, in the nerves, in the sense that ordinary life is being steadily occupied by something colder and larger than itself.

Litigation did not merely cost money. It changed how I saw things. At first one still thinks in the old language: facts, confidence, fairness, resolution. But once lawyers are involved long enough, another language takes over. One begins to hear a company's version of events not as mistaken but as strategic. One notices how often the strongest party's idea of proportion happens to coincide with its own convenience. One sees how quickly a matter that felt morally plain becomes clouded in carefully drafted ambiguity.

One exchange from 1997 has stayed with me more than most. By then Shell's side was no longer arguing only about legal exposure. It was making a much broader claim. In a letter dated 20 May 1997, Richard Wiseman, Shell's General Counsel and Company Secretary, wrote that the moral obligation previously referred to had arisen out of the termination of the long-standing relationship, not out of any particular claim, and that the slate therefore remained wiped clean. He went further: in Shell's view, no further obligation arose from the latest claim, legal, moral or otherwise.

I have never forgotten the phrase "wiped clean." It sounds tidy. Almost biblical, or perhaps hygienic. What it meant in practice was that Shell had arrived at a theory of moral finality convenient to itself. Whatever had happened, whatever remained disputed, whatever further claim or misconduct might emerge, the company could say the moral account had already been settled. In effect, Shell was not merely defending itself. It was declaring history closed.

I rejected that at once, and I still reject it. My response was simple. If Shell management did not know, at the time of mediation, about later matters or further claims, how could any moral obligation arising from those matters have been discharged in advance? A settlement cannot morally cleanse what it never addressed. At least, not in any world I recognise. Shell's argument seemed to reduce morality to administrative convenience. Mine was that morality required the wrong itself to be confronted, not merely filed away.

That difference is one of the deepest fissures in the whole story. Shell's position, as I understood it, was that the relationship had ended, money had changed hands, letters had been exchanged, therefore the slate was wiped clean. My position was that if later or hidden wrongdoing emerged, then the slate had not been wiped clean at all. It had been covered over.

I am not tidying this up with hindsight. The argument was there in the correspondence at the time. I wrote in May 1997 that Sir John Jennings had indicated he had been under the impression the matter had been fully resolved the previous year, but that the March 1997 promotion gave rise to a new claim. I also made the practical point that if Shell management had been unaware of the potential further claim during the mediation, any moral obligations arising from later misdeeds could not possibly have been taken into account. Then, on 21 May 1997, I rejected outright the idea that the settlement was some kind of severance payment or blanket absolution. With respect, I said, that entire line of argument could not be right.

That sentence, too, has stayed with me. It was not grand or literary. It was the practical objection of a man being told, in effect, that his moral account had been closed for him by the very people whose conduct he was still disputing.

The legal machine does not like that kind of objection. It prefers categories. Settled. Unsettled. Confidential. Waived. Defended vigorously. That phrase appeared too. Shell's letters became increasingly crisp in the way only corporate legal letters can be: cool, assured, faintly weary, as if the real impropriety lay not in what had been done but in one's refusal to accept the official view of it. There were warnings about confidentiality. There were reminders that proceedings would be defended vigorously. There were lines drawn around what could be circulated and to whom. There was, in other words, the familiar combination of moral denial and legal containment.

None of this meant that Shell never showed a human face. Sir John Jennings plainly did at moments. There were interventions. There were letters. There was an apology from Chris Fay, which I will come to. But that, too, is part of what makes the story difficult and, I hope, interesting. The company was not a cartoon villain with one expression. It was a machine made of people, some decent, some evasive, some helpful, some ruthless, some perhaps simply doing what large institutions teach their people to do: protect the company first, interpret fairness later.

By the late 1990s, I understood something that has never really left me. A smaller party in litigation does not merely have to prove a case. He has to survive his own case. He has to endure it financially, emotionally and domestically long enough to keep it alive. The stronger party knows that. Whether it admits it or not is another matter.

The reader may wonder why I did not simply give up, take the least awful settlement on offer, and move on. The answer is that in one sense I did take settlements; in another I never could move on, because each time Shell seemed to be treating settlement not as honest reckoning but as erasure. What the company wanted, or so it often appeared to me, was not merely peace. It wanted closure on terms it alone could define. It wanted the slate wiped clean because it had said so.

That is not how justice feels from the losing end of unequal power. That is how power describes justice when it has run out of patience.

By 1999 the matter was heading toward the Smart trial in London, with all the pressure, cost and expectation that implies. The legal machine had done its work. It had consumed money, widened the moral breach, and made even apparent moments of progress feel unstable. The next chapter is about one of the strangest features of the whole saga: apology on the one hand, escalation on the other, and the sensation that even the biggest formal moments never truly ended anything at all.