A Dutch director of the Dutch-registered DCC subsidiary Lotus Green Limited has told the High Court that the board of Lotus did not seek or receive any direction from DCC, or any other party, when deciding to sell its shareholding in Fyffes for €106 million in February 2000.

When making the decision to sell the Fyffes stake (beneficial ownership of which had been transferred by DCC to Lotus in 1995 for tax reasons), Tom Diepenhorst said neither he nor any of his co-directors on the Lotus board had any unpublished information on Fyffes.

He also said that he had never met DCC chief executive Jim Flavin, other than one very brief meeting in the summer of 2003 during a visit to DCC House in Dublin to meet with DCC chief financial officer Fergal O'Dwyer, who was an Irish director on the board of Lotus.

Mr Diepenhorst also said that, in the latter half of the 1990s, he was a director of some 30 companies, most of which were registered in the Netherlands in order to avail of the favourable tax regime there and for other reasons.

Until January last, when he had retired, he was a general manager of ING Trust in Amsterdam, which provides management services for Dutch companies that invest for tax reasons in countries related to the Netherlands, he said.

ING Trust was a director of DCC Holdings BV, DCC's Dutch subsidiary, from 1993, and he was therefore aware of and had formed a relationship with DCC as of 1993.

Mr Diepenhorst yesterday began his evidence on the 63rd day of proceedings 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 plc, Mr Flavin and two DCC subsidiaries - S&L Investments Limited and Lotus Green - who deny the claims and plead the sales were properly organised by Lotus.

In his direct evidence yesterday, Mr Diepenhorst told Mr Michael Ashe SC, for DCC, that he believed he was informed of Lotus Green after a DCC Holdings BV board meeting in 1995.

He recalled that Lotus Green was a company that was changing its place of residence from Ireland to the Netherlands and that its primary function was to hold and control the beneficial ownership of DCC's shareholding in Fyffes. He became a director of Lotus Green in 1995.

He was informed that the purpose of Lotus Green was to manage DCC's large investment in Fyffes, which was described, he believed by Mr O'Dwyer, as being "not for keeps".

He understood the purpose of transferring the shareholding was that it could be disposed of in a tax-efficient manner.

He understood that if Lotus Green became resident in the Netherlands, the proceeds of any sale of its Fyffes shares would not be subject to capital gains tax.

Mr Diepenhorst said he was also aware that it was the strategic intention of the DCC group to sell its shareholding in Fyffes at a suitable time in the future and he recognised that Lotus Green would sell the stake if a good price subsequently became available.

At a Lotus Green board meeting in Amsterdam early on the morning of February 3rd, 2000, the board was told by Mr O'Dwyer that there were parties interested in purchasing the stake in Fyffes and there was a strong possibility an offer for all or part of the shares would be made.

In July 1998, the board had resolved to accept offers of more than €2.54 per share.

The Fyffes share price had closed at €3.32 on February 2nd and the board decided on the 3rd that it would accept offers for all or part of its shareholding in Fyffes for €3 per share or higher.

Mr Diepenhorst said it was also agreed that he would be the person to act on behalf of Lotus in the transaction involving the sale of the shares.

He was phoned by Mr O'Dwyer later on the afternoon of February 3rd who said that stockbrokers had approached Mr Flavin seeking to purchase some 17.9 million ordinary shares in Fyffes at €3.20.

Mr O'Dwyer said that Mr Ronan Godfrey of Davy Stockbrokers was the person who was making the offer.

Mr Diepenhorst said he phoned Mr Godfrey about 6pm Dutch time on February 3rd.

During their conversation, he said he expected Mr Godfrey to make an offer to him, but his recollection was that there was silence at Mr Godfrey's end.

Consequently, Mr Diepenhorst said, he had told Mr Godfrey he confirmed the transaction.

Mr Diepenhorst said he had never dealt with a broker on such a large deal before and he was unsure whether Mr Godfrey was to make the offer to him or whether he, Mr Diepenhorst should mention what he had been informed was the offer.

Mr Diepenhorst said he had opted for the latter. He had accepted further offers for more of the Fyffes shares on February 8th and 14th, 2000.

In cross-examination by Mr Paul Sreenan SC, Mr Diepenhorst said that there was a division of tasks within the board of Lotus Green and the board relied on Mr O'Dwyer in relation to issues to do with Irish law.

He also assumed that if there was a compliance issue to be addressed regarding the share sales, it would have been brought to the board's attention.

The decision not to transfer the legal title of the shares never came before the Lotus Green board.

He was aware the non-transfer meant that there would be no public notice that Lotus Green was the beneficial owner of the shares.

The issue was not discussed by the Lotus Green board.

He also said the board had never received presentations from brokers or analysts in relation to the Fyffes shares over the years 1995 to 2000.

The board knew the attitude of DCC was in favour of selling the Fyffes shares when the price was right. It was up to Lotus Green to decide when the shares would be sold and at what price.

The case continues today before Ms Justice Laffoy.