Davy Stockbrokers chairman Kyran McLaughlin and DCC chairman Alec Spain are among four "witnesses of fact" who will not testify in DCC's High Court action with Fyffes.

Before evidence resumed before Ms Justice Laffoy yesterday, counsel for Fyffes, Paul Gallagher SC, said that on Friday evening they received a letter from DCC that it had been decided that four "witnesses of fact" would not be called.

Apart from Mr Spain and Mr McLaughlin, DCC had decided not to call Patrick Gallagher, a non-executive director of DCC, and Gerard Vennebor, a director of the Dutch company, Lotus Green, a subsidiary of DCC.

Mr Gallagher said the significance of DCC not calling these witnesses was not a matter that it was appropriate to address at this juncture. There was, he said, the unsatisfactory timing of the notification. Fyffes got the notification last Friday, so that meant DCC knew at sometime on Friday, if not earlier, when Tom Diepenhorst, a director of Lotus Green, was giving evidence that he was going to be the only Dutch director to do so.

Mr Gallagher said this was of some relevance in terms of issues that Mr Diepenhorst might have been cross-examined on. Kevin Feeney SC for DCC said that if Mr Gallagher identified any unfairness then Mr Diepenhorst could be made available. It is believed that about six "expert" witnesses remain to be called by DCC before evidence ends.

One of the country's top businessmen, Tony Barry, who is also a non-executive member of the DCC board, told the court yesterday that when he joined DCC in late 1994 he was fully satisfied that DCC's 10.5 per cent shareholding in Fyffes no longer made any sense to DCC as it was focused on full ownership and management of its operating business units.

Mr Barry, who has been chairman of CRH and Greencore and a director of the Bank of Ireland, told Ms Justice Laffoy that he understood from the time he joined DCC and from discussions with Jim Flavin that it was the DCC board's intention to dispose of its Fyffes shares in an appropriate manner and at an appropriate time. He assumed that was accepted by the board when he joined and nothing he heard subsequently changed that view.

Mr Barry was giving evidence on the 68th day of a claim brought by Fyffes against DCC regarding the sale of DCC shares in Fyffes for €106 million on three dates in February 2000.

Fyffes claims the share deals, which yielded a profit of €85 million to DCC, were organised by DCC and Mr Flavin in breach of "insider dealing" provisions of the Companies Acts. DCC denies the claims and pleads the share sales were properly conducted by Lotus Green.

Fyffes has also brought proceedings against S and L Investments of DCC House, Stillorgan, Dublin, and Lotus Green, with registered offices at Wilton Place, Dublin, the DCC subsidiary which owned the 10 per cent shareholding in Fyffes.

Fyffes claims the defendants had price-sensitive and confidential information regarding Fyffes' trading performance at the time of the share deals on dates from February 3rd to 14th, 2000.

The defendants deny the claims; plead that Lotus Green dealt in the shares and that Mr Flavin had no involvement other than passing on to Lotus Green unsolicited bids for the shares.

Mr Barry (69) said it had been his experience as a DCC non-executive director that the company had always been particularly conscious of compliance with legal obligations and that Mr Flavin was meticulous in ensuring proper procedures were followed and independent advice taken where necessary.

In DCC board strategy reviews from 1996 to 1999, it had been re-affirmed by the board that DCC's continued shareholding in Fyffes was no longer a correct strategic position for the DCC group.

Mr Barry said the first he learned of the sale by Lotus Green of part of its Fyffes investment was on or about February 4th, 2000, when Mr Flavin advised him that DCC had earlier issued a stock exchange announcement that part of its Fyffes shareholding had been sold.

Neither he nor the DCC board had any advance knowledge of the sale nor any involvement in the decision to sell.

Although DCC's normal procedures at that time required any disposal in excess of £3 million (€4.4 million) to be approved by the board, he did not seek any explanation as to why no DCC board meeting had been held (nor, he believed, did any of his colleagues) as they were well aware that authority in relation to a disposal of the Fyffes shares had been delegated in 1995 by the board to Lotus Green.

Mr Barry in his statement also said the transfer of the Fyffes shares to Lotus Green was part of a wider commercial reorganisation of the DCC group which would also result in exemption from capital grains tax in the event of a profitable sale of the Fyffes shareholding.