Never Mind the Facts...

As well as having no connection to the parties, I have, as far as I know, no connection to any members of their families or to their current employees, or to anyone who gave evidence in the case, except that I was present at a meeting with Michael Scholefield in 1988, and had some very brief interaction with him then. I am personally acquainted with many members of the legal teams for both sides, and with the Inspector, but have never discussed the case with any of them.

There is a lot of quite fair and balanced reportage in today's "Irish Times" on the Jim Flavin story on which I posted yesterday. This makes all the more astonishing the line taken by the paper's leader writer, who clearly needs to revisit the undisputed facts of the case, and to get advice on what the law is.

The Irish media consensus view of the Fyffes/DCC case is as follows

Greedy evil bastbusinessman Jim Flavin (GEBJF) sees a set of Fyffes internal accounts and realises that the share price is headed for a fall

GEBJF decides to sell his shares to some sad innocent dupes (SIDs)

GEBJF finds SIDs and persuades them to buy the shares

The share price duly falls.

The outraged SIDs demand justice

GEBJF is prosecuted for the crime of insider trading

GEBJF pulls every trick that he can think of, and nearly gets away but is found guilty and ordered to pay the investors back

The Supreme Court describes GEBJF's behaviour as a fraud on the market

It also says that GEBJF is guilty of a CRIMINAL OFFENCE (no less)

I pause here to try to remember if destruction of evidence is also a CRIMINAL OFFENCE.

"The authorities" don't have the bottle to punish GEBJF properly but...

... the cool,clean hero a.k.a. Paul Appleby does what he can, only to be thwarted by a smarmy barrister...

...who hasn't read the script astoundingly gets it all wrong.

A major problem with this narrative is that it does not fit the facts available at all (but note that I am not - could not possibly be - certifying Mr Flavin as the "poster-boy" for all that is true, good and wholesome, never mind the epitome, as "The Irish Times" would have it, of corporate probity).

For one example, the High Court found as a fact that

the evidence is not open to the interpretation that Mr. Flavin used the [price-sensitive information to decide to sell]...On any view of the evidence, that information simply had no bearing on the Share Sales

There was no appeal against that finding, and the Supreme Court did not question it. That being so, the "Irish Times" leader-writer may wish to consider how a moral issue could possibly arise, at least in respect of Mr Flavin's behaviour.

For a further example, while Fennelly J. did use the phrase " a fraud on the market", he did so in an introductory paragraph, and he did not characterise Mr Flavin's conduct in that way. Nor did he - or any other judge - so much as even suggest that Mr Flavin was guilty of any criminal offence. The only issue for the Supreme Court to decide was the "technical" one of whether the information Mr Flavin had was "price-sensitive", and while they emphatically, and unanimously, decided that it was, it does not necessarily follow either that they were unquestionably correct or that those who differed from that conclusion were morally impaired.

Putting on my own moral hat, given that the courts have decided that no profit was made from use of inside information, I wonder how justice or morality - as distinct from the law - have been served by compelling DCC to hand over tens of hard-earned millions of euro to parties whom I cannot see as being deserving of any of it.