DCC plc Board Affidavit

DCC PLC
13 November 2007




                   Affidavit on behalf of the Board of DCC plc
 

The Board of DCC plc notes the application to the Irish Supreme Court by the 
Director of Corporate Enforcement ('DCE') in Ireland, made on notice to Fyffes 
plc and DCC plc, to be joined as a party in the civil proceedings between Fyffes
plc and DCC plc and others for the purpose of alerting the Courts to their 
statutory powers to disqualify a person from acting as a company director or 
officer where a Court sees fit in the course of any proceedings. 

The Supreme Court today dismissed the DCE's application saying that this was a 
matter for the High Court. 

The Board of DCC and the other respondents vigorously challenged the grounds on 
which the DCE based his application, as set out in the attached affidavit by 
Michael Buckley, DCC's senior independent director, on behalf of the entire 
DCC plc Board. 


For Reference:

Gerard Whyte
Company Secretary
DCC plc
Tel:  [phone]

Jim Milton
Murray Consultants
Tel:  [phone]
      [phone]

                                                                          


--------------------------------------------------------------------------------



                                                                          144/06


                                THE SUPREME COURT
                                -----------------


BETWEEN:


                                   FYFFES PLC

                                                             Plaintiff/Appellant



                                    - and -



                 DCC PLC, S&L INVESTMENTS LIMITED, JAMES FLAVIN
                            AND LOTUS GREEN LIMITED
                                        

                                                          Defendants/Respondents





                          AFFIDAVIT OF MICHAEL BUCKLEY
                          ----------------------------





                                  WILLIAM FRY
                                   Solicitors
                                Fitzwilton House
                                  Wilton Place
                                    Dublin 2


                               002439.021.OOS/GPS



--------------------------------------------------------------------------------


                                                               Record No. 144/06


                                THE SUPREME COURT
                                -----------------


BETWEEN:


                                   FYFFES PLC

                                                             Plaintiff/Appellant


                                    - and -


                 DCC PLC, S&L INVESTMENTS LIMITED, JAMES FLAVIN
                            AND LOTUS GREEN LIMITED


                                                          Defendants/Respondents


                                        
                          AFFIDAVIT OF MICHAEL BUCKLEY
                          ----------------------------


I, Michael Buckley, of DCC House, Brewery Road, Stillorgan, Co Dublin, aged
eighteen years and upwards, Make Oath and say as follows:-


1.  I am the senior independent director of DCC Plc and I make this Affidavit on
    behalf of all of the Respondents with their authority and consent from facts
    within my own knowledge save where otherwise appears and whereso appearing 
    I believe the same to be true.

2.  I swear this Affidavit in respect of the application issued by the Office of
    the Director of Corporate Enforcement dated 5 November 2007, and in reply to
    the Affidavit sworn by the Director of Corporate Enforcement (hereinafter 
    referred to as 'the Director') on 2 November 2007.

3.  The Director's application seeks an Order from the Supreme Court
    joining him to the proceedings herein as a notice party for the purpose of
    adverting to the power, both of the High Court and the Supreme Court, of 
    their own motion, to make disqualification orders pursuant to Section 160(2)
    Companies Act 1990. As was stated in the letter sent to the Director by the 
    Respondents' solicitors on 26 October 2007 (Exhibit 'PA2' of the Director's 
    Affidavit), the Respondents believe that the jurisdiction of both courts 
    under Section 160(2) would not and could not be ousted by any order of the 
    Supreme Court remitting these proceedings to the High Court.

4.  The Respondents wish to draw to the attention of the Court serious factual 
    inaccuracies and mis-characterisations of conclusions of the High and 
    Supreme Courts that are contained within the Affidavit of the Director, 
    which, in part, reflect public comments that have been made since the 
    Supreme Court Judgment and which are unfairly damaging to the Respondents. 
    In a number of paragraphs in his grounding affidavit, the Director 
    characterises the Respondents' actions as constituting insider dealing which
    involved the Respondents using or exploiting inside information for their 
    own profitable benefit. This is a mis-characterisation of what was found by 
    the Courts. It is fair to say that insider dealing in a general context is 
    understood to involve the exploitation of inside information to gain an 
    undeserved profit and indeed in paragraph 16 of his Affidavit the Director 
    describes insider dealing in those terms. Nothing of that nature occurred in
    the share dealings to which these proceedings relate. As was recognised by 
    the High Court in a finding that was unaffected by this Honourable Court, 
    there was absolutely no evidence that the price sensitive information was 
    used by any of the Respondents or had any bearing on the Respondents in 
    effecting the three share sales. The High Court noted that 'on any view of 
    the evidence that information simply had no bearing on the share sales'.

5.  The breach of Part V of the Companies Act, 1990 contended for by the 
    Plaintiffs arose because the Third Named Respondent was in possession of 
    information which this Honourable Court has now determined was 
    price-sensitive at the time of the three share sales in February 2000. 
    I believe that everyone would agree that it would be a fraud on the market 
    for a person to exploit his access to inside information. However, I believe
    it is wholly inaccurate, and indeed unfair, of the Director to seek to 
    categorise the dealings of the Respondents as constituting insider dealing 
    involving the exploitation, as distinct from the possession, of price 
    sensitive information. In the High Court, Judge Laffoy made a number of 
    important findings of fact, which were uncontested before this Honourable 
    Court. In his Judgment in the Supreme Court Mr Justice Fennelly stated 
    that in that regard 'it is a tribute to the extraordinary patience and care 
    of the learned trial judge that none of her findings of primary fact are 
    challenged on this appeal. Nor does either party question her conclusions 
    on several major legal and factual issues.'

    Among Judge Laffoy's important findings of fact were the following:-

    ' In my view, in this case, the evidence is not open to the interpretation 
      that Mr. Flavin used the information contained in the November and 
      December Trading Reports which is alleged to have been confidential and 
      price sensitive, the negative information in relation to Fyffes' trading 
      and earnings performance in the first quarter of financial year 2000 so 
      as to enable the DCC Group to exit from Fyffes in a manner which would 
      avoid any share price impact which would ensue from the disclosure of 
      that information. In my view, on the evidence, it is clear that what 
      motivated Mr. Flavin in his involvement in the Share Sales and what 
      motivated the almost total exit of the DCC Group from Fyffes in
      February, 2000 was the opportunity to make a substantial profit because 
      of the increase of the share price on the back of wof.com. The plaintiff 
      has not established any evidential nexus between the profit which the 
      share sales generated for the DCC Group and the use by Mr. Flavin or 
      the use by any of the boards of the corporate defendants, of the 
      confidential information contained in the November and December 
      Trading Reports. On any view of the evidence, that information simply 
      had no bearing on the share sales.'

    ' I did not understand the plaintiff to assert dishonesty on the part 
      of any of the defendants. In any event, I find that dishonesty was 
      not established on the evidence.'

    ' .... the plaintiff has failed to establish a breach of fiduciary duty 
      on the part of Mr Flavin.'

    These findings, together with the fact that neither Mr. Flavin nor any other
    director or executive of Fyffes had any appreciation at the time of the 
    Share Sales that the information in the trading reports was price sensitive,
    demonstrate the unfairness and inaccuracy of the Director's 
    characterisations.

6.  I believe and all other members of the Board of the First Named
    Defendant/Respondent have informed me that they believe that the attempted
    characterisation by the Director of officers of the Respondent companies as
    persons whose actions in February 2000 may have damaged the market and may 
    have been contrary to the public interest is unfair and is an appraisal that
    is not founded in the judgments of the High or Supreme Courts. The Board of 
    Directors of the First Named Defendant/Respondent believes the Respondents 
    should not be subject to reputational damage by reason of unfair 
    representations of what the courts have found.

7.  In conclusion, I say that the Respondents do not believe that such an Order 
    as is sought by the Director is justified or necessary and that the making 
    or not making of such an Order would not affect the powers of the courts 
    in any way.



                            SWORN by MICHAEL BUCKLEY
                            this 9th day of November 2007
                            at Wilton Park House, Wilton Place
                            in the City of Dublin
                            before me a Commissioner for Oaths
                            and I know the Deponent
                            Peter C Hayes
                            Commissioner for Oaths



This Affidavit is filed on behalf of the Defendants/Respondents by WILLIAM FRY,
Solicitors, Fitzwilton House, Wilton Place, Dublin 2.

                       Filed this 9th day of November 2007










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