Madam, - In response to Sara MacArthur's letter of July 31st, I would make the following comments. Although it cannot be said that Fyffes suffered any direct loss as a result of the actions of the defendants in this case, it has a statutory right to recover the alleged profits made on foot of the alleged insider dealing. Owing to the complicated settlement system for securities trading, it is extremely difficult for individual investors to prove a direct link between their losses and the actions of the insider traders. Companies such as Fyffes are best placed to render insider traders accountable in a civil action. Despite these facts, a number of private investors have, in fact, been joined as plaintiffs in the litigation.
Secondly, a private company is not entitled to bring criminal proceedings for insider trading. This was solely the remit of the DPP (and also now, under the 2005 regime, the Central Bank and Financial Services Authority of Ireland in the case of summary offences). Fyffes has brought a civil action against DCC, Jim Flavin and others, as is its prerogative under the Companies Act 1990.
The Irish Stock Exchange, as a private company itself, was charged with the functions of monitoring suspicious trading patterns, as the body best placed to do so, and reporting suspected insider trading to the relevant minister and the DPP. It is not possible to comment on the DPP's reasons for not prosecuting the alleged offenders in this instance. However, insider trading has been notoriously difficult to prove, with this landmark case being the first such civil action brought in the 15-year existence of Part V of the 1990 Act. The task of bringing a criminal case becomes even more daunting with the increased burden of proof being "beyond all reasonable doubt".
Despite the recent ruling of the Supreme Court in this matter, by no means should the actions of the defendants be seen as a "blatant case of insider trading". All that was established in the appeal was that Mr Flavin was in possession of price-sensitive information. It must still be proven that he caused or procured his co-defendant to deal in the securities. In this regard we await the forthcoming judgment of the High Court.
The judgment of the Supreme Court is to be welcomed by investors, brokers and regulator alike in clarifying the scope of "inside information". - Yours, etc,
GAVIN DRISCOLL, Solicitor, Wyckham Way, Dublin 16.
Madam, - The Supreme Court has unanimously held that the executive chairman of DCC held insider information when making a deal which made his company profits of €85 million. Following this event, your paper reports that the directors of the board of DCC have sought support from the investment community for Mr Flavin's continuance as executive chairman.
The Supreme Court found in 2004 that Ms Beverly Flynn TD had no reputation to defend. Following the recent general election she can look forward to possibly attaining a junior ministry in the lifetime of this Government.
This country really is a class act! - Yours, etc,
GARRETT MURRAY, The Tramyard, Dublin 8.