The definition of profit is likely to be the focus of the Fyffes/DCC damages hearing to be heard in the High Court next year, writes Colm Keena, Public Affairs Correspondent.
Expert and legal argument are expected to dominate the hearing.
However, the court will also be asked to consider a request from the Director of Corporate Enforcement, Paul Appleby, that it should decide if the issuing of disqualification orders against DCC's executive chairman, Jim Flavin, and others, would be justified and appropriate.
It is not considered likely that any senior executives from the two plcs will be called to give evidence on the main issue - the damages that DCC should pay given the Supreme Court's ruling that trading information Mr Flavin had in his possession at the time he dealt in Fyffes shares, was price sensitive.
Mr Flavin, at the time a non-executive director of Fyffes, dealt on behalf of DCC in Fyffes shares worth €106.7 million in February 2000.
The profit over the purchase cost of the shares, 20 years earlier, was €86 million and that represents the upper limit of what the court could decide to award.
In an affidavit to the Supreme Court, DCC aired its view that the damages awarded against it should be limited to the difference between what DCC got for the shares and what the court estimates it would have received if the information which was in Mr Flavin's possession, had been generally available.
It said that if the effect of the information would have been a 10 per cent drop in value, then Fyffes should get €10.7 million. If 15 per cent, then it should get €16 million.
It also said the court would be entitled to hold that the entities who bought the shares from DCC would be compensated out of the damages.
There are four counter parties to the case, representing 20 per cent of of the shares purchased, according to DCC. The rest of the purchasers were notified at the time Fyffes initiated proceedings, did not make applications and are now statute barred.
The purchasers would be entitled to the difference between the purchase price and what the court decides the shares would have cost if the trading information had been made public.
The estimate might have to take into account a "placement discount", that is the discount DCC might have had to allow in order to offload such a large shareholding at a time when information leading to a share price fall, had entered the market.
DCC has made provision for a damages ruling with an upper limit of €25 million.
In mid-October, Mr Appleby's office wrote to the solicitors acting for Fyffes and DCC, respectively Conor McDonnell of Arthur Cox and Owen O'Sullivan of William Fry.
He informed them that he had been keeping a watching brief on the proceedings and was seeking their consent to his intended application to the Supreme Court.
His office pointed out that a provision of the Companies Act 1990 provided that any court may, of its own motion, make a disqualification order against a person for such period as it deemed fit in circumstances where it was satisfied in any proceedings that certain matters were established.
Mr Appleby was concerned that the Supreme Court would send the case back to the High Court for the sole purpose of deciding on the amount of damages, thereby restricting the court from considering making a disqualification order of its own motion.
The solicitors replied to Mr Appleby saying they believed his action would be unnecessary, as the power of the High Court to consider the matter would be unaffected by the Supreme Court order. The Supreme Court said it was a matter for the High Court and Mr Appleby, in a statement afterwards, said he had achieved his primary objective.
Mr Appleby told the Supreme Court it would be more efficient, and in the public interest, for the courts to consider the matter than for him to bring separate proceedings, if that were possible.
