Fyffes maintained yesterday in the High Court it was "not credible" to suggest that DCC chief executive Jim Flavin did not realise the significance of trading information available to him prior to the €106 million sale of the DCC stake in Fyffes in February 2000.
Mr Flavin was also aware of compliance procedures related to share dealings by directors and he had deliberately sought clearance under those procedures "based on incomplete and inaccurate information", Paul Sreenan SC, for Fyffes, submitted.
Mr Sreenan said Mr Flavin, when dealing with compliance issues, had failed twice to mention to DCC's compliance officer or DCC's solicitor matters related to Fyffes trading in the month of January 2000. To fail to do that once "might be an accident", to omit the month of January twice was "inexplicable", counsel said.
When Mr Flavin reported to his own board on March 27th 2000, he also did not say he had the January figures on Fyffes but instead told them he had information for the months of November and December 1999, he also submitted.
Mr Sreenan said Mr Flavin was a man who was acutely aware of the importance of specific trading figures of companies and of the importance of definite information as to the actual outturn in a trading period.
When Mr Flavin had received information in January 2000 about Fyffes' trading in November and December 1999 and a forecast for January 2000, this information was self-evidently at variance with the expectations of analysts and the stock market, Mr Sreenan said.
Mr Flavin was also a person who would have been well aware of the historical benchmarks within Fyffes and that the loss for the first quarter of the financial year 2000 (beginning November 1999) was the largest in 10 years, he added.
"These figures simply must have jumped off the page at him in terms of their seriousness." If anyone knew that you couldn't deal (in shares) with this type of information, it was Mr Flavin, Mr Sreenan argued.
Counsel was continuing legal submissions for Fyffes on the 80th day of the action by Fyffes alleging insider dealing in connection with the sale of the DCC stake in Fyffes over three days in February 2000.
The action is against DCC, Mr Flavin and two DCC subsidiaries - S&L Investments and Lotus Green - who deny the claims and plead the share sales were properly organised by Lotus to which beneficial ownership of the Fyffes shares was transferred in 1995 for tax reasons.
Mr Sreenan concluded his submissions yesterday and Brian Murray SC, also for Fyffes, then began submissions dealing with the issue of whether, if the court finds that Mr Flavin did have price sensitive information at the time of the share sales, any or all of the defendants are liable to Fyffes.
Those submissions centred on the proper construction of the relevant provisions of the Companies Act and addressed several issues including whether there is a requirement for Fyffes to establish that DCC knew the information was price sensitive.
The hearing continues today before Ms Justice Mary Laffoy.
