The Fyffes/DCC insider dealing judgment is being appealed by Fyffes to the Supreme Court, writes Colm Keena, Public Affairs Correspondent
DCC yesterday expressed its "incredulity" at the decision, which it said it would contest vigorously. It is likely to be more than a year before the Supreme Court rules on the appeal, which will involve millions of euro in legal fees.
"The board's decision to appeal follows a detailed analysis of the judgement by the directors and by the company's counsel," Fyffes said yesterday.
The 87-day High Court case is believed to have run up legal costs of approximately €20 million and the court ruled recently that Fyffes would have to pay its own costs and 80 per cent of those of DCC.
Ms Justice Mary Laffoy, in her judgement delivered in December, found that DCC chief executive Jim Flavin was not in possession of price-sensitive information at the time he and DCC dealt in Fyffes shares.
The sales occurred on three dates in February 2000 and one month before Fyffes issued a profit warning. DCC sold shares worth €106 million. Mr Flavin was a non-executive director of Fyffes up to and around the time of the share sales.
Ms Justice Laffoy's judgement was a ground-breaking judgement in a civil insider-dealing case in the Republic and ran to more than 350 pages. A report on the judgement was drawn up by Fyffes' legal team and submitted to a special sub-committee of the Fyffes board, which in turn reported to the Fyffes board.
Appeals to the Supreme Court can only concern points of law and interpretations of the law. Fyffes will now make a written submission to the court, DCC will make a written response, and a hearing will then occur. It is likely to be at least a year before the hearing occurs, according to one source. The judges may then reserve their decision.
In her judgement Ms Justice Laffoy also addressed a second issue in the case. DCC had argued that neither it or Mr Flavin had dealt in the Fyffes shares and that the dealing was done by a Dutch-resident subsidiary of DCC, Lotus Green. However, Ms Justice Laffoy did not accept this argument and it was for this reason that DCC had to shoulder 20 per cent of its own costs.
In its statement yesterday, DCC said its board "viewed Fyffes' original decision to commence proceedings in January 2002 with incredulity" and at the time expressed "its clear view to the market that the action by Fyffes was wholly unjustified, totally inconsistent with Fyffes' own statements and conduct at the relevant time and utterly without merit.
"The board of DCC is even more surprised at Fyffes' decision to further pursue this matter by lodging an appeal to the Supreme Court against the High Court judgment. The appeal will be challenged vigorously and comprehensively.
"DCC is confident that there are no good grounds of appeal and that the detailed and considered decision of the High Court will be upheld."
During the High Court hearing both sides used three senior counsel. On the Fyffes side were: Paul Gallagher; Paul Sreenan; and Brian Murray. On the DCC side were: Kevin Feeney; Michael Cush; and Michael Ashe. The solicitor for Fyffes was Conor McDonnell of Arthur Cox, while Owen O'Sullivan of William Fry acted for DCC. Mr Feeney has since been appointed to the High Court.
