Transcripts of Flavin's calls must be treated with caution - DCC

Counsel for DCC has urged the High Court to "treat with caution" transcripts of telephone calls between DCC chief executive Jim Flavin and stockbrokers made at the time of the €106 million sale of the DCC stake in Fyffes plc in early 2000.

Michael Cush SC said the "in-depth scrutiny" of "particular words and phrases" used in the course of telephone conversations "can be apt to mislead".

Counsel said Mr Flavin had had conversations with Kyran McLaughlin and Ronán Godfrey of Davy Stockbrokers and with Roy Barrett of Goodbody Stockbrokers. Of those three, the court had only heard evidence from Mr Barrett.

He said DCC would say Mr Barrett was an independent witness who knew both Mr Flavin and the Fyffes personnel.

Mr Barrett, DCC would suggest, had come to court as "perhaps the only independent witness in relation to the question of dealing" and he had had an involvement in all three share transactions on dates in February, 2000.

Mr Cush said Mr Barrett had said the stocks which were really performing on the market in February 2000 were technology stocks or stocks with some technology exposure.

Mr Barrett had also said his recollection was that he had been in contact with Mr Flavin some days prior to the first share deal of February 3rd, 2000, and that it was he who had contacted Mr Flavin, saying Goodbody's clients had a lot of interest in Fyffes shares.

This made clear that the initiative for the share sales came from brokers and was driven by their perception of significant market demand and that the DCC holding of the Fyffes shares was anomalous, counsel said.

So far as the price for the shares was concerned, there was no recollection by Mr Barrett of any conversation with Mr Flavin on price, and his best recall or best speculation was that the price - for the first tranche of shares sold on February 3rd, 2000 - emerged from discussions between Mr Barrett himself and Mr McLaughlin. In relation to the second share sale on February 8th, 2000, Mr Barrett had also said that Mr Flavin had told him that he, Mr Flavin, had "no authority" in the matter and that Mr Barrett should contact Lotus Green Limited - a Dutch-registered DCC subsidiary which, DCC claims, organised the share sales - counsel said.

Mr Barrett had also said Mr Flavin had referred him to Lotus Green in relation to the third share sale of February 14th, 2000.

This evidence from Mr Barrett should not, counsel submitted, be "submerged in the intense scrutiny of little passages of transcripts of telephone conversations and the like".

On the contrary, Mr Barrett's evidence "should inform the court's assessment of those details".

Mr Cush was making legal submissions on behalf of DCC on the 84th day of the legal action by Fyffes alleging "insider dealing" in connection with the three share sales of February, 2000.

The action is against DCC plc, Mr Flavin and two DCC subsidiaries, S&L Investments Limited and Lotus Green Limited.

The defendants deny the claims and plead that the share sales were properly organised by Lotus to which beneficial ownership of the Fyffes shares was transferred in 1995 by DCC and S&L for tax reasons.

In earlier submissions yesterday, Mr Cush said DCC rejected the claim that Lotus Green had caused or procured DCC and S&L to deal in the Fyffes shares.

It also rejected the argument that, even if Lotus was not itself precluded from dealing, then - if Mr Flavin was in possession of price-sensitive information - DCC, Mr Flavin and S&L were so precluded.

He said the only dealing done by DCC and S&L was in the context of their disposal of the legal interest in the Fyffes shares, which was done through the delivery of share certificates on February 4th, 2000. The instruction in relation to the certificates preceded that dealing.

The hearing continues today before Ms Justice Mary Laffoy.