Supreme Court decision

The Supreme Court has referred the Fyffes/DCC case back to the High Court so it can decide on the level of damages that should be paid by DCC.

Both parties are expected to argue that the court should not consider the issue of disqualification orders as suggested by the director of corporate enforcement, Paul Appleby.

In the Supreme Court, Mr Appleby said that if he had to bring "separate proceedings to address any question of disqualification that might arise, assuming that such were possible, this would lead to unnecessary time, complexity, evidential difficulties and cost".

Having regard to the "clear findings" that had been made by the court, it would be "more appropriate, more efficient and in the public interest" for the Supreme Court or the High Court to determine whether the "established facts and conduct merit disqualification".

The law says that Fyffes is entitled to all the €85 million profits DCC made on the share sale, though sources indicate few involved believe that will occur. DCC has set aside a maximum of €25 million to cover any damages that might be awarded.

Ms Justice Laffoy, in her judgment, referred to the "inherent incongruity in reason and common sense" between Fyffes saying DCC executive chairman Jim Flavin had insider information when he dealt, and the fact that it had not even considered at the time whether it had an obligation to made a statement to the market.

Her ruling that the information Mr Flavin had was not price-sensitive, she said, "obviates the necessity to confront the fundamental incongruity in [ Fyffes] position, which I have highlighted earlier. However, it is difficult to see how a statute outlawing and providing a remedy for insider dealing could accommodate such a fundamental incongruity. That it could, would seem to be at variance with fairness and justice."