Analysis: Ten weeks after the hearing opened, the last witness for the plaintiffs finished giving evidence in the Fyffes/DCC insider dealing case yesterday.
The closing of the line of Fyffes' witnesses means it believes it has now presented to Ms Justice Mary Laffoy enough evidence to allow her rule, on the balance of probabilities, on two matters.
These are: whether confidential information in DCC chief executive Jim Flavin's possession in February 2000 would have been likely to cause a material change to the Fyffes share price if it had become known to the market; and whether Mr Flavin and DCC actually traded in February 2000. The Fyffes shares sold that month were legally held by a Dutch resident DCC subsidiary, Lotus Green.
A huge amount of the time so far spent in court has focused on the former issue. A much smaller amount of time has been spent on the latter.
The evidence presented in relation to the Lotus Green issue includes tapes made by Davy stockbrokers. These include conversations between Mr Flavin and Ronan Godfrey of Davy on the day of the first share sale on February 3rd, 2000.
Mr Flavin can be heard discussing aspects of the deal and then telling Mr Godfrey that he, Mr Flavin, does not have the authority to trade, and that Mr Godfrey will be getting a call from a man in Holland, Tom Diepenhorst. Mr Flavin can be heard laugh at the point where he says he has no authority.
The first sale was on February 3rd and involved Davy and Goodbody stockbrokers. The subsequent two sales on February 8th and 14th, were handled by Goodbody alone.
Bruce Ashmore, the man directly involved for Goodbody, gave evidence that on the second and third sales, he was instructed to call Mr Diepenhorst regarding deals involving certain numbers of shares at a certain price, and that on each occasion Mr Diepenhorst simply confirmed the deal.
Mr Ashmore said he took his instructions from his boss, Mr Roy Barrett, whom, he said, he believed was in contact with Mr Flavin. Mr Barrett was not called to give evidence.
The court has also heard evidence from former liquidator, Mr John Donnelly, to the effect that the way DCC treated Lotus Green in its accounts meant it believed it had control over that company's assets. The structure involving Lotus Green was a tax scheme requiring that Lotus Green be controlled from Holland. The DCC stake in Fyffes constituted 14 per cent of DCC's net assets. The court has seen documents from Fyffes' files that question whether it is credible that DCC and Mr Flavin, would have transferred control over a key asset to directors in Holland.
As to the issue of the price sensitivity of the information available to Mr Flavin, lots of evidence has been heard but the number of primary facts are small.
The claim from Fyffes is that two documents of a few pages each contained the allegedly price-sensitive information. The trading statements for November and December 1999 were circulated to Fyffes' directors in January 2000, the third month of Fyffes financial year 2000.
The results for 1999, a profit of €83 million, were announced on December 14th, 1999. The following few weeks saw an increase in the Fyffes share price. Around the same period and through January and February 2000, interest grew in Fyffes worldoffruit.com project and the share price doubled.
Fyffes was budgeting for a profit of €84 million in 2000. By the end of January 2000 the trading statements that Mr Flavin and the other Fyffes directors had in their possession indicated the company was €14 million behind its previous year's figure at that point. In terms of the actual contribution to the targeted profit for the year, the company would be down €2.7 million at the end of January, as per documents available to Mr Flavin at the time of sales.
The defendants are arguing that this assessment by Fyffes would not have influenced Fyffes' share price if it had become generally known, because of the circumstances of the time. The circumstances include the dotcom bubble and knowledge generally available concerning trading. Mr Flavin is the first of the witnesses for the defence, and enters the witness box today.
