The Supreme Court dismissed an appeal by Fyffes Plc against a High Court decision refusing access to expert reports and related documents disclosed by DCC Plc and other defendants. The documents remained privileged for the purposes of Fyffes’ civil proceedings, the court held, despite their limited disclosure to the Irish Stock Exchange in connection with a possible prosecution referral.
The substantive case was still being heard in the High Court. Fyffes alleges that former director James Flavin possessed confidential, price-sensitive information and allowed it to be disclosed to the other defendants, who then sold Fyffes shares at an inflated price. The alleged conduct is said to breach Part V of the Companies Act 1990. These are allegations in the civil case; the Supreme Court appeal concerned access to documents, not whether insider dealing occurred.
The dispute arose after the Stock Exchange referred the matter to the Director of Public Prosecutions in 2000. DCC later obtained expert advice, and in 2002 arranged for Stock Exchange officials to review material under a confidentiality agreement. The agreement allowed the Exchange to tell the DPP that a review had taken place and to share its broad conclusions. It also preserved disclosure where required by law or court order. In July 2003, DCC sent the disputed documents, including reports by five independent experts, to the Exchange for onward transmission to the DPP.
Fyffes argued that DCC had used the reports to try to influence the Exchange and the DPP against prosecution, and that it would be unfair to withhold them from Fyffes in the civil case. DCC accepted that it hoped to dissuade the DPP from prosecuting, but said it had disclosed the material for a limited purpose while preserving privilege.
Delivering judgment on 27 January 2005, Mr Justice McCracken said the governing approach was that disclosure for a limited purpose does not generally waive privilege in separate litigation. He preferred that approach over the fairness test applied in a divided Australian decision. The court found that the confidentiality terms allowed the Exchange to report its conclusions to the DPP, whether favourable or not, and recognised its statutory disclosure obligations. It saw no serious injustice to Fyffes sufficient to displace the general rule.
The court did not decide the underlying insider-dealing allegations or any question of prosecution. It dismissed the appeal, leaving in place the High Court’s refusal to order inspection of the documents.