The High Court has ordered the chief executive of Development Capital Corporation (DCC), Mr Jim Flavin, to give a fuller answer to questions about a taped phone call which is alleged to record him as "actively negotiating" controversial share dealings in the major fruit distributor Fyffes plc.
The answer already provided by Mr Flavin, which a solicitor for Fyffes yesterday described as "extraordinary", was not sufficient, Ms Justice Laffoy ruled yesterday.
Mr Flavin had been asked to confirm whether a transcript of a phone conversation which allegedly took place on February 3rd, 2000 between Mr Flavin and Mr Ronan Godfrey, head of the Equity Desk at Davy Stockbrokers, is accurate.
Fyffes claims the transcript presents Mr Flavin as actively negotiating the terms on which shares were to be sold.
In his reply to the question, delivered last August, Mr Flavin said he could not confirm the transcript was accurate. He said that, due to the absence of context, the passage of time and since he had not heard the recording itself, he was unable to swear on oath that it was a true or substantially true record of the conversation.
Mr Flavin added that he had had a number of telephone conversations with Mr Godfrey on February 3rd, 2000, one of which, he said, did relate to matters covered in the questions put to him.
A copy of the tape recording of the phone call was given to Mr Flavin last month but Fyffes claimed he had still failed to confirm whether the transcript of the recording was accurate.
Solicitors for DCC and Mr Flavin had replied on November 16th last that, since Mr Flavin answered the questions in August, they had themselves obtained a copy of the relevant tape.
The solicitors said that, as the call occurred some four and a half years ago, their clients were not in a position to confirm the accuracy of the transcript of that call. They added that Mr Flavin would give evidence about the telephone call during the hearing of legal proceedings related to the share dealings, which are due to open next Thursday, December 2nd.
After hearing submissions on behalf of Fyffes and Mr Flavin yesterday, Ms Justice Laffoy said matters had moved on since Mr Flavin had given that reply last August.
Mr Flavin had since been given the tape of the phone conversation.
She said the answer given by Mr Flavin did not really answer the question posed to him. In her view, his reply was not sufficient and she would direct that Mr Flavin give a further reply. She said she was finding the question had not been sufficiently answered and it should be.
The answers are being sought by Fyffes for the purpose of a major legal action, due to open next week, relating to the sale and purchase of shares in Fyffes plc. Fyffes has brought the proceedings against DCC plc, S and L investments, of DCC House, Stillorgan, Co Dublin, Mr Flavin, of Shankill, Co Dublin, and Lotus Green Ltd, of Fitzwilton House, Wilton Place,Dublin. The latter is described as a subsidiary of DCC which owned 10 per cent of Fyffes.
The proceedings arise from a series of transactions occurring between February 3rd and 14th, 2002 when shares in Fyffes, of which DCC plc and S and L Investments Limited were the registered owners, were sold.
A central issue in the proceedings relates to whether Mr Flavin, in connection with those transactions, "dealt" in shares of Fyffes in a manner prohibited by Section 108 of the Companies Act.
Fyffes claims Mr Flavin had taken advantage of financial information he allegedly obtained as non-executive director of Fyffes to procure the sale of DCC's stake in the fruit distributor in February 2000 at a profit of €85 million.
Mr Flavin has denied the claims and denied that he was in possession of price-sensitive information or that he passed on any such information to Lotus Green. Mr Flavin is not a director of Lotus Green. DCC has also denied allegations of insider trading.
In the course of discovery for the legal proceedings, Fyffes secured a copy of a transcript of a number of phone conversations, including between Mr Flavin and Mr Godfrey of Davy Stockbrokers on February 3rd 2000. Davy Stockbrokers was the company to whom a tranche of Fyffes shares was sold on that day.
In an affidavit, Mr Conor McDonnell, solicitor for Fyffes, said it was fair to say the transcript presented Mr Flavin as actively negotiating the terms on which the shares were to be sold.
This was of considerable importance not just because of Mr Flavin's denial that he dealt in the shares but also because all four defendants had contended the person who dealt in the shares was Lotus Green Limited, which was alleged to be the beneficial owner of the shares.
Mr McDonnell said Mr Tom Diepenhorst was a director of Lotus Green and part of the transcript referred to "Jim" stating: "It may, Ronan, it may be that you get a call not from me but from a guy from ING Bank in Holland, Tom Diepenhorst and if it's not him you can take it that they have authority to give an instruction."
Mr McDonnell said the conversation proceeded with Mr Flavin stating: "I have no authority on the matter" and then saying: "Yeah, I know, if you get a call from ING Bank, they'll know all about it. You can take instructions from them instead of me."
Mr McDonnell said Mr Flavin proceeds: "In fact you know doing it won't be with us at all. It will be entirely between here and Holland, I wouldn't want any trail of paper between here and..."
Mr McDonnell said a court order last July required Mr Flavin to confirm that the transcript attached to the order was a true or substantially true record of what was said during the telephone call of February 3rd, 2000.
Mr Flavin had indicated in his replies last August that he was unable to recall whether these were in fact the conversations as they occurred, without hearing the tapes.
Mr Flavin had then been given copies of the tape recordings. He had listened to them and had not asserted the voice recorded in the transcript as being other than his voice.
It was, to say the least, surprising that Mr Flavin was not in a position to confirm that the words uttered by the person on the tape with a voice attributed to Mr Flavin were not Mr Flavin's words, Mr McDonnell said. Mr Flavin's position was "extraordinary".
