Supreme Court rejects Fyffes appeal over expert reports

The Supreme Court has rejected an appeal by Fyffes against a High Court decision refusing the company the right to inspect five expert reports submitted by DCC plc to the Irish Stock Exchange (ISE), the Director of Public Prosecutions (DPP) and the Garda arising from Fyffes' claim of insider dealing by DCC in Fyffes shares in early 2000.

The reports had concluded that price sensitive information had not been used by DCC when it sold its shareholding in Fyffes in early February, 2000.

A criminal investigation, which is still ongoing, began when the stock exchange reported the sale of the shares to the DPP.

Fyffes had sought to inspect the DCC experts' reports in pursuit of its current High Court claim before Ms Justice Laffoy that there had been "insider trading" by DCC and its chief executive, Mr Jim Flavin, in relation to the timing of the sale of DCC shares.

Fyffes claims that the sale resulted in substantial profits being made by DCC, Mr Flavin and two other companies.

DCC had argued the experts' reports were privileged documents and that Fyffes was not entitled to inspect them. The High Court last November upheld DCC's claim. Fyffes had claimed that the privilege was lost when the documents were disclosed to the ISE, DPP and the Garda.

Fyffes alleged DCC deployed its experts' reports so that the DPP would decide not to prosecute it.

DCC admitted that while those reports were used by the company in an attempt to gain an advantage (the closing of a criminal investigation) they were not used to the disadvantage of Fyffes in the current High Court action.

The three-judge Supreme Court yesterday unanimously rejected Fyffes' appeal against last November's High Court finding that Fyffes was not entitled to see DCC's expert reports and other documentation.

Mr Justice Fennelly, in his judgment, said it was accepted the documents would normally be entitled to legal professional privilege but Fyffes claimed that DCC had waived that privilege (when handing over the documents to the stock exchange, DPP and the Garda).

The objective of DCC was that by influencing the stock exchange, the ISE would seek to persuade the DPP not to proceed with the criminal investigation. It was not part of the (Supreme) court's function to comment on the general desirability of such behaviour.

It was designed to obtain an advantage for DCC but it was not an advantage which placed or would have placed Fyffes at any corresponding or related disadvantage in the civil action.

In this case Fyffes had argued for the broad proposition that any disclosure to a third party led to loss of privilege. No legal authority had been cited in support of such "a far reaching principle."

In his view DCC did not commit any action amounting to an implied or imputed waiver of their privilege.

Mr Justice McCracken said that once reference was made (by ISE) to the DPP, the decision as to what future action he should take was a matter for the DPP and not the ISE.

Nevertheless, the judge said, he saw nothing improper in DCC giving further information to the stock exchange and for it to be sent to the DPP for his consideration if the exchange should think this was proper.

Mr Justice Geoghegan also dismissed the appeal.