The Supreme Court has dismissed an appeal by Fyffes plc over access to expert reports that DCC plc, S&L Investments Ltd, James Flavin and Lotus Greene Ltd had shared with the Irish Stock Exchange. The Court held that the disclosure, made for a specific purpose under express confidentiality conditions, did not waive privilege in the civil action.
Fyffes’s High Court action sought damages under Part V of the Companies Act 1990, alleging insider dealing in February 2000. It alleged that DCC and S&L Investments sold Fyffes shares while Flavin, then a Fyffes director, possessed confidential, price-sensitive information, enabling DCC, S&L and Lotus Greene to make a substantial profit. Those allegations were the background to the discovery dispute; the Supreme Court appeal concerned access to documents, not whether insider dealing occurred.
The reports had been obtained in 2002 for the defence of the civil proceedings. After the Irish Stock Exchange referred the matter to the Director of Public Prosecutions, the respondents provided reports and other material to the Exchange as part of an effort to persuade it to reconsider its view and communicate a favourable assessment to the DPP. The Exchange reviewed material under agreed confidentiality conditions, including an arrangement for a confidential data room. The judgment records that the Exchange was not barred from communicating with the DPP in performing its statutory functions.
Fyffes argued that disclosure to a third party generally destroys confidentiality and privilege. It also submitted that fairness required access because the respondents had used the reports to seek an advantage. The respondents said they had shared them for a limited purpose while insisting on confidentiality.
The reports had been claimed as privileged in discovery ordered by the High Court. Smyth J refused Fyffes’s motion for inspection in unredacted form. On appeal, the Supreme Court said privilege is not lost simply because material is communicated to a third party. It may be waived where a party uses privileged material in the civil action through partial disclosure or by summarising its effect to gain an advantage over an opponent. The Court said express confidentiality conditions are a material factor in assessing waiver.
The Court found no relevant connection between the effort to influence the Exchange and DPP in the criminal process and the civil action. Any advantage sought in relation to the criminal investigation did not place Fyffes at a corresponding disadvantage in the civil proceedings. It concluded that the respondents had not impliedly or imputedly waived privilege and dismissed the appeal. It did not decide the underlying insider-dealing allegations.