Supreme Court dismisses appeal where privilege over legal advice documents is waived by disclosure to Stock Exchange.

THE SUPREME COURT

497/2004

Geoghegan J

Fennelly J

McCracken J

Between:

Fyffes Plc

Plaintiff/ Appellant

AND

DCC Plc, S&L Investments Ltd, James Flavin and Lotus Greene Ltd

Defendants/ Respondents

Judgment of Mr Justice McCracken delivered the 27th day of January 2005

General Background

1. This is an appeal from a decision of the High Court (Smyth J) given on 19th November 2004 refusing an application, pursuant to

Order 31 Rule 18 of the Rules of the Superior Courts, for the production for inspection by the Appellant (hereinafter called “Fyffes”) of

certain documents the existence of which had been disclosed by the Respondents to Fyffes in an affidavit of discovery, but in

respect of which privilege was claimed by the Respondents. In the substantive proceedings, which in fact are at present at hearing

before the High Court, Fyffes claims that the third named Respondent was in possession of price sensitive and confidential information

in relation to the affairs of Fyffes, which information had been obtained by him in his position as the Director of Fyffes. It is claimed

that he allowed this information to be disclosed to the other Respondents leading to the sale by them of shares in Fyffes at a price

over and above their full value and that this constituted the use of insider information by the Respondents contrary to the provisions

of Part V of the Companies Act 1990. In the course of preparing for this litigation the Respondents obtained expert advice from a

number of persons, and it is common case before this Court that the various reports and documents containing such advice would in

the normal course of events be entitled to privilege. The issue in this case is whether under certain circumstances which will be

detailed below, that privilege has been lost or waived. It is not suggested that there was a deliberate waiver of privilege on the part

of the Respondents, but rather that such waiver out to be imputed due to the particular facts of the case.

The Relevant Legislation

2. Part V of the Companies Act 1990 relates to insider dealing. The relevant sections under that part of the Act are:-

S.108. “(1) It shall not be lawful for a person who is, or at any time in the preceding 6 months has been, connected with a

company to deal in any securities of that company if by reason of his so being, or having been, connected with that company

he is in possession of information that is not generally available, but, if it were, would be likely materially to affect the price of

those securities.”

S.109. “(1) Where a person deals in or causes or procures another person to deal in securities in a manner declared unlawful

by section 108 or communicates information in any such manner, that person shall, without prejudice to any other cause of

action which may lie against him, be liable:-

(a) to compensate any other party to the transaction who was not in possession of the relevant information for any loss

sustained by that party by reason of any difference between the price at which the securities were dealt in that

transaction and the price at which they would have been likely to have been dealt in such a transaction at the time

when the first-mentioned transaction took place if that information had been generally available; and

(b) to account to the company that issued or made available those securities for any profit accruing to the first-

mentioned person from dealing in those securities.”

S.111. “A person who deals in securities in a manner declared unlawful by section 108 shall be guilty of an offence.”

S.115. “(1) If it appears to a relevant authority of a recognised stock exchange that any person has committed an offence

under this Part, such authority shall forthwith report the matter to the Director of Public Prosecutions and shall furnish to the

Director of Public Prosecutions such information and give to him such access to and facilities for inspecting and taking copies

of any documents, being information or documents in the possession or under the control of such authority and relating to the

matter in question, as the Director of Public Prosecutions may require.”

Stock Exchange Investigation

3. On 1st September 2000 the Stock Exchange wrote to the first named Respondents (hereinafter called “DCC”) stating that they

were investigating dealings in shares of Fyffes and asking certain questions in relation thereto. On 8th September 2000 DCC replied to

the Stock Exchange and furnished certain documentation, which is not the subject of this motion. It appears that shortly afterwards,

and without any further communications with DCC, the Stock Exchange, in accordance with s.115 of the 1990 Act, reported the

matter to the Director of Public Prosecutions and presumably furnished him with a copy of DCC’s letter of 8th September 2000 and the

enclosures which were with it. It should be noted that the documents now in dispute were not in fact in existence at that time. As

far as DCC was concerned nothing further happened for over a year, and there was no communication to it from either the Stock

Exchange or the Director of Public Prosecutions. At the end of November 2001 reports appeared in the press that the matter had

been referred to the Director of Public Prosecutions by the Stock Exchange, and on 5th December 2001 DCC wrote to the Stock

Exchange inquiring about this and further stating that they wished to notify the Stock Exchange that they did not have any price

sensitive information at the relevant time. At some stage during the year 2002 the expert reports and advice which are now in issue

were obtained by DCC.

4. Understandably the Respondents were very concerned at the possibility of a prosecution being taken against them, or some of

them, in relation to insider trading. On 24th September 2002 they held a meeting with their accountants and solicitors to discuss the

matter and to determine whether any action could be taken to prevent such a prosecution. The Appellant places considerable reliance

on a memorandum prepared after that meeting which stated, inter alia:-

“While there may not be a legal or procedural way in which the stock exchange can withdraw their file from the DPP (Alvin

Price’s point), we would win a tactical and strategic battle against the DPP if the stock exchange conveyed to the DPP that,

with the benefit of information that has come to light subsequent to their original referral, they were unlikely to be helpful

prosecution witnesses. In order for them to come to this view, it is likely that they would have to reanalyse the price

sensitivity issue, probably by engaging (and properly briefing) another expert witness as discussed above. Coupled with the

mens rea issue, the undermining of Fyffes as a credible witness for the DPP and the likely inadequacy of whatever expert

opinion the stock exchange have procured, the undermining of the stock exchange themselves as a helpful witness would be a

further reason why the DPP would have difficulty prosecuting.”

5. Following this, a meeting was held with Tom Healy, Chief Executive of the Stock Exchange, on 30th October 2002. It was disclosed

to him that expert advice had been obtained by DCC to the effect that any information in the possession of the third Respondent at

the relevant time was not price sensitive. In a memorandum relating to that meeting made by DCC’s accountants, which again is

strongly relied upon by Fyffes, it is recorded:-

“Another issue that was raised, by Tom (Healy) on a number of occasions during the meeting and in a subsequent telephone

with me on the morning of Thursday 31st October was with regard to the confidentiality of the information that is provided to

the stock exchange. Tom’s advice was that the information should be made available to them on a confidential basis and DCC

should require that this information be returned with copying. He made this point because he said he recognised if the stock

exchange’s conclusion was not positive from the company’s perspective they would not want information to be circulated

widely as it meant that they would be playing their hand in advance. However, he said that if they were giving a positive

recommendation to the DPP that the information was not price sensitive, it is thought likely, as mentioned earlier, that the DPP

would want to see the documentation which gave rise to the stock exchange’s change of view.

In his telephone call to me on the morning of 31st October, Tom noted that he felt that once they received any information, if

they received a formal request from say the DPP he thought it likely they would have to provide it. Notwithstanding this, he

thought that if information was made available to them that the company should try to make it available on as restrictive a

basis as possible.”

6. On 1st November 2002 DCC’s accountants wrote to Tom Healy referring to the meeting of 30th October and stated:-

“Having considered the matter, we have recommended to DCC Group that it make available for review by the Exchange new

and relevant information and documentation in its possession relating to the above sales of shares. We believe that such

information may not have been available to the Exchange at the time of making its report under the Companies Act.

Much of the information to be made available has been obtained and compiled for the purposes of defending a civil claim and

therefore, as discussed at our meeting and subsequent telephone conversation, the information would have to be provided on

a confidential and restrictive basis. We have proposed to DCC Group that the information and documentation be made

available in a confidential data room located in our offices. …”

7. Enclosed with that letter was a draft confidentiality undertaking. By letter of 26th November 2002 Tom Healy of the Stock

Exchange replied that he felt the terms of the proposed confidentiality undertaking were too restrictive and said:-

“On a more substantive note, we are uncomfortable with the blanket nature of the confidentiality undertaking. We fully accept

that we would not copy or take away any documentation, and also that we would not retain any notes of the content of this

documentation. We are also happy to commit to keeping all information which we would obtain exclusively from this

documentation confidential from all third parties, with the exception of the DPP. Our relationship with the DPP is such that we

believe we should disclose the fact that we conducted such a review, and the broad conclusions which we would draw from

that review.”

8. Following this exchange of correspondence, a confidentiality agreement in the form of a letter dated 2nd December 2002 was

signed by Tom Healy. Its terms were more or less in accordance with his letter of 26th November and should be quoted in full. It

read:-

“Dear Sirs,

We understand that it is proposed that further information and documentation in regard to certain share sales (“the

information”) will be made available for review by Tom Healy, Brian Healy and Ailish Byrne on behalf of the Irish Stock

Exchange.

In that regard, we agree that:-

(A) The information will be kept secret and strictly confidential by us and will not (save with your prior written consent)

be passed to any third party;

(B) The information will not be used by us or any of our servants or agents for any purpose other than the review

referred to above;

(C) No copies of any of the information which is in written or other permanent form will be made by us (save with your

prior written consent);

(D) When we have completed our review (which will be by not later than 31 December 2002) any notes made will be

promptly destroyed.

Our agreement at (A) above will not, however, apply to:-

(I) Any information which, notwithstanding our above undertaking, we are obliged to disclose by law or by order of a

court of competent jurisdiction (in which event we will advise you immediately);

(II) any information which comes into the public domain otherwise than through breach of the foregoing commitments.

Notwithstanding the foregoing, we will be entitled, following our review of the information, to inform the Director of Public

Prosecutions of the fact of that review having been carried out and of the broad conclusions drawn by us from the review.”

9. Subsequent to this undertaking, the documentation in issue was inspected by officials of the Stock Exchange at the premises of

DCC’s accountants. There was further correspondence and meetings between the advisors of DCC and the Stock Exchange and

ultimately by a letter dated 3rd July 2003 the documents in issue, which included reports of five independent experts, were sent by

DCC to the Stock Exchange with the request that they be transmitted by the Stock Exchange to the Director of Public Prosecutions,

which was done in due course.

The Appellant’s Argument

10. Fyffes argue that there was a deliberate decision by the Respondents to influence possible witnesses from the Sock Exchange in

criminal proceedings by furnishing these documents, and in turn in the hope that the Stock Exchange would influence the Director of

Public Prosecutions not to proceed against the Respondents. They argued that the way this was done is very relevant, in that the

documents were not furnished directly to the Director of Public Prosecutions to influence his decision in relation to a prosecution, but

were furnished to the Stock Exchange, and it is further suggested that this was a pointless exercise in one sense, in that the Stock

Exchange were functus officio once they had reported to the Director of Public Prosecutions. I do not see any great relevance in the

argument that they were functus officio, but in any event I think that is incorrect. Under s.115 the Stock Exchange had an ongoing

obligation to the director of Public Prosecutions to furnish all documentation in their possession which he might require, and therefore

there still remained a function to be performed by the Stock Exchange. Fyffes main objection to this procedure appears to be that in

effect they were giving the information and documents to the Stock Exchange on the basis that the information would be passed on

to the Director of Public Prosecutions if the news was good, but not if the news was bad. It was suggested that the reality was that

the various reports were being vetted by the Stock Exchange.

11. This may well have been the original intention of DCC, although it does appear from the memorandum of the meeting of 30th

October that the whole question of confidentiality was a suggestion of Tom Healy of the Stock Exchange. However, whatever may

have been the original intention, it is quite clear that this was not achieved by the terms of the confidentiality agreement, and indeed

in the letter of the 26th November from Tom Healy it was made quite clear that the Stock Exchange would not be prepared to keep

the information confidential from the Director of Public Prosecutions. Furthermore, under the terms of s.115, the Stock Exchange

would of course be bound to furnish all documentation to the Director of Public Prosecutions if required. The confidentiality agreement

itself is expressed not to apply to any information which the Stock Exchange would be obliged to disclose by law, and furthermore

reserves the right of the Stock Exchange in any event to inform the Director of Public Prosecutions of the fact of a review being

carried out and of the conclusions from that review. Clearly, therefore, when the documents were ultimately furnished, the

undertaking as to confidentiality did not apply to information to be given to the Director of Public Prosecutions, whatever may have

been the outcome of the review.

12. Fyffes also contend that it would be quite unfair and unjust that the Respondents could have the benefit of influencing the Stock

Exchange by the furnishing of these documents, while in what is basically the same dispute or issue, Fyffes would have to contest

the issue without the benefit of the documents. While they acknowledge that the Respondents intended to preserve confidentiality

and could not be said in any way to have deliberately waived privilege, nevertheless a waiver should be imputed by reason of these

matters.

The Respondents’ Case

13. The Respondents fully acknowledge that the whole purpose of the exercise was to persuade the Stock Exchange to try to

influence the Director of Public Prosecutions against proceeding with any prosecution. They say they were perfectly entitled to do

this as it was a matter of grave importance commercially to DCC in particular. A prosecution for insider trading, even if unsuccessful,

could have a very serious effect on DCC’s commercial activities and on its share price. They argue that the directors of DCC had not

only a right to take this course, but had a duty to protect their shareholders. They believe that the Stock Exchange made the

decision under s.115 to report the matter to the Director of Public Prosecutions without knowing all the facts, and they were entitled

to bring to the attention of the Stock Exchange information which had not been before them, and which could have influenced their

decision.

14. They further say that it was quite clear at all times that they were wishing to preserve their confidentiality, and that on the

authorities referred to below, a disclosure of confidential or privileged documents for a limited purpose did not involve a loss of the

privilege which attached to those documents.

The Authorities

15. There do not appear to be any authorities in this jurisdiction dealing directly with the issue. The Respondents rely on a number of

English decisions, including a decision of the Privy Council in a New Zealand case and a Northern Ireland decision, while Fyffes relies

primarily on an authority of the High Court of Australia.

16. In British Coal Corporation v. Dennis Rye Ltd & Anor [1988] 3 All ER 816 the plaintiff sued the defendants, inter alia, for damages

for fraudulent or negligent misrepresentation and conspiracy to defraud. A police investigation took place into the allegations, and the

plaintiff furnished to the police certain documents which had been created for the purpose of the civil action, in order to assist the

police in their investigations. In due course criminal charges were brought, and these documents were disclosed by the prosecution to

the defendants. The defendants were acquitted in the criminal proceedings, and in the civil proceedings, the plaintiff applied for a

return of all documents and an injunction restraining the defendants from using the documents or any information obtained in them in

the civil action. The defendants alleged that by reason of the plaintiff’s actions any privilege attached to the documents had been

lost. In the Court of Appeal Neill L.J. in the course of his judgment posed the question “Has anything happened which has caused that

privilege to be waived or otherwise lost?”. He then stated at page 821:-

“In my judgment the answer to this question is plainly no. Let it be assumed that all the documents have come into the

possession of the defendants with the implied consent of the plaintiff and that it could be established that it would have

supplied the category B documents even without an order of the court. Nevertheless, it is clear that the plaintiff made the

documents available for a limited purpose only, namely to assist in the conduct first of a criminal investigation and then of a

criminal trial. This action by the plaintiff, looked at objectively as it must be, cannot be construed as a waiver of any rights

available to it in the present civil action for the purpose of which the privilege exists.”

17. He then commented on page 822:-

“In my judgment the action of the plaintiff in making documents available for the purpose of the criminal trial did not

constitute a waiver or a privilege to which it was entitled in the civil proceedings. Its action in regard to both the category A

and the category B documents was in accordance with its duty to assist in the conduct of the criminal proceedings, and could

not properly be construed as an express or implied waiver of its rights in its own civil litigation. Indeed, it would in my view be

contrary to public policy if the plaintiff’s action in making the documents available in the criminal proceedings had the effect of

automatically removing the cloak of privilege which would otherwise be available to them in the civil litigation for which the

cloak was designed.”

18. This case was expressly approved by a different Court of Appeal in Goldman v. Hesper [1988] 1 WLR 1238. This case concerned

the disclosure of privileged documents in the course of taxation of costs. The Court of Appeal cited the British Coal Corporation case

with approval and stated at page 1245:-

“By the same token voluntary waiver or disclosure by a taxing officer on a taxation would not in my view prevent the owner of

the document from reasserting his privilege in any subsequent context.”

19. The situation was considered more recently by the Privy Council on appeal from the Court of Appeal in New Zealand. In B & Ors v.

Auckland District Law Society & Anor [2004] 4 All ER 269 there was a situation where a complaint was made to the Law Society

against the plaintiffs who, in the course of answering the complaint, disclosed certain privileged and confidential documents to

counsel appointed by the Law Society. The documents were furnished on the express basis that, by furnishing the documents,

privilege was not waived. Subsequently, the plaintiff sought the return of the documents from the Law Society on the basis that that

they were privileged, but the Law Society refused to acknowledge the privilege or return the documents on that basis and maintained

that any privilege which may have existed had been waived. They also argued that privilege could not be waived for a limited purpose

only. In the course of the judgment of the Board at page 285 Lord Millet said:-

“The Society’s argument, put colloquially, is that privilege entitles one to refuse to let the cat out of the bag; once it is out of

the bag, however, privilege cannot help to put it back. Their Lordships observe that this arises from the nature of privilege; it

is nothing to do with waiver. It does not follow that privilege is waived generally because a privileged document has been

disclosed for a limited purpose only: see British Coal Corporation v. Dennis Rye Ltd (No. 2) [1988] 3 All ER 816 and Bourns Inc

v. Raychem Corporation [1999] 3 All ER 154. The question is not whether privilege has been waived, but whether it has been

lost. It would be unfortunate if it were. It must often be in the interest of the administration of justice that a partial or limited

waiver of privilege should be made by a party who would not contemplate anything which might cause privilege to be lost, and

it would be most undesirable if the law could not accommodate it.”

20. It should also be mentioned that the British Coal Corporation case has been expressly approved of in Northern Ireland in the case

of Downey v. Murray [1988] NI 600. In that case, the plaintiff in proceedings for damages arising out of a motor accident had made a

written statement to her solicitors. The solicitors forwarded a copy of the statement to the police subject to a condition that it

should not be communicated to any other person. The police did not in fact prosecute the defendant and it was held that the

statement was privileged and that the privilege had not been lost or waived by the disclosure of the statement to the police. Carswell

J, after citing both the British Coal Corporation case and the Goldberg case said at page 605:-

“I respectfully agree with the reasoning of the court in the two cases which I have just cited and propose to follow. When one

applies it to the present case, the conclusion follows that the plaintiff’s solicitors were entitled to impose the condition upon

their use of the copy statement which is expressed in Mr Hasson’s affidavit. The waiver of privilege was limited to the

purposes specified by them, and when the police decided not to prosecute the defendant the privilege remained intact.”

21. These are the cases primarily relied upon by the Respondents, and was the approach preferred by the learned High Court Judge.

However, Fyffes urged that the Court should follow the reasoning of the Court of Appeal of the Supreme Court of New South Wales

and the High Court of Australia in Goldberg & Anor v. Ng & Ors. In that case proceedings were brought against a solicitor and his wife

by former clients, who also lodged a formal complaint to the Law Society of New South Wales. The Law Society received certain

documents from the solicitor on condition that privilege would be maintained, and dismissed the complaint. The clients, who were

plaintiffs in the civil action, sought to recover the documents from the Law Society, and the solicitor sought a declaration that the

documents produced to the Society were subject to legal professional privilege. The decision of the Supreme Court is reported at

[1994] 33 NSWLR 639. In the course of his judgment Clarke JA expressly disagreed with the British Coal Corporation case and said at

page 677:-

“There can be no question of express waiver in this case. Goldberg was at pains to ensure that confidentiality in the material

he had prepared for submission for legal advice was maintained. The only question which does arise is whether the law should

impute a waiver in all the circumstances. Put another way; do considerations of fairness require that the disclosure of the

material to the Law Society be treated in law as a waiver of the privilege in favour of the respondent?

I do not regard the answer to this question as simple. On the one hand there is no suggestion that the respondents’ conduct

of the present litigation has itself been influenced or prejudiced by the disclosure of the material to the Society. The

respondents do not know the contents of the documents and, obviously enough, have not acted to their prejudice as a

consequence of any knowledge of those contents. On the other hand, Goldberg had used the privileged material to his

advantage and to the disadvantage of the respondents. The Law Society resolved, as a consequence of the information

contained in the privileged material, to dismiss the complaint which had been brought by the respondents and to advise the

respondents to take proceedings in court.

…

For my part I have concluded that it would be unfair to permit Goldberg to maintain his privilege in the material. In saying this

I am taking account of the fact that in the normal course he would have provided the Law Society with statements in

response to the complaints, which were not privileged, and these would have been discoverable. … He should not be permitted

to enjoy the benefits derived from the submission of the material to the Law Society without being subjected to the normal

consequences of the submission of his own arguments to it. In other words his voluntary decision to use privileged, rather

than non-privileged, material to provide his answer to Ng’s complaint should not enable him to keep the contents of his answer

from Ng.”

22. On appeal the High Court of Australia upheld the decision. The judgment is reported in 137 ALR 57 where the general principle was

set out at page 66 as follows:-

“It follows that the critical question in the present case is whether Mr Goldberg’s disclosure of the privileged documents to the

Law Society gave rise to a situation where ordinary notions of fairness required that he be precluded from asserting that

those documents were protected from production for inspection by the Ng’s in their related equity proceedings between the

Ng’s and the Goldberg’s.”

23. It should be said that neither of these were unanimous decisions, the Supreme Court of New South Wales being divided two to

one and the High Court of Australia being divided three to two.

24. Accordingly, it is argued on behalf of Fyffes that the true test is a test of fairness, and that in the present case it would be unfair

to Fyffes to allow the Respondents to use the documents in an attempt to prevent a prosecution, while still not disclosing them to

Fyffes.

Assessment of Authorities

25. Insofar as there is conflict between the Goldberg decision and the British Coal Corporation case and those which followed it, I

prefer the reasoning in the British Coal Corporation case. The principle of privilege arising in the preparation or conduct of a case is

based on the proper administration of justice. This requires that a litigant must be in a position to communicate freely with his or her

legal advisors, and further must be entitled to obtain expert evidence from third parties to assist, not only in the preparation of the

case, but in the assessment as to whether there is any case to be made. While there is not now any issue in this case as to whether

the documents in question were privileged prior to their disclosure to the Stock Exchange, nevertheless in considering the question of

waiver it is important to remember at all times that privilege does not exist merely for the protection of a party, but also exists to

ensure the proper administration of justice.

26. There may be many situations in which it is desirable, or even mandatory, that privileged documents be disclosed to a third party

for a limited purpose. Both the British Coal Corporation case and the Downey case related to disclosing documents to police

authorities where a prosecution was in contemplation. Both the B case and the Goldberg case related to disclosing the documents to

the relevant law society which was the regulating body of the party who made the disclosure. An example of mandatory disclosure

actually arises in the present case, where under s.115 of the 1990 Act the Stock Exchange must disclose all documents in its

possession to the Director of Public Prosecutions if requested to do so. If such disclosures are to be governed solely or primarily by a

concept of fairness, as is suggested in the Goldberg case, each case is going to be looked at subjectively according to its own

particular facts without any particular regard to a general rule. In my view this is highly undesirable. While one cannot lay down

absolute rules in matters such as this, it is essential that there should be as great a degree of certainty as possible, so that parties

can reasonably foresee the result of actions of disclosure taken by them. Were that not so, it is possible that serious injustices could

occur because a party might fail to make a disclosure due to the fear that they might lose the benefit of a legal privilege to which

they were entitled.

27. In saying this, I am not ruling out the fact that there may be cases in which the question of fairness arises, and the general rule

that a disclosure for a limited purpose does not amount to a waiver may have to give way where a serious injustice might result. With

the greatest respect to the Australian Courts, I do not believe that such a serious injustice arose in the Goldberg case.

Conclusion

28. Under s.115 of the Companies Act 1990 the Stock Exchange, or more accurately a relevant authority of the Stock Exchange, has

a statutory obligation to report certain matters to the Director of Public Prosecutions. The Stock Exchange is also, in general terms,

the regulatory body governing a number of matters connected with the conduct of the affairs of quoted companies and of the

directors and shareholders of such companies. It is very much in the public interest that a quoted company, and the shareholders and

directors of a quoted company, should cooperate fully and openly with the Stock Exchange to ensure that it can properly exercise its

regulatory function. In the present case, the Stock Exchange, pursuant to its functions under s.115, made a determination to refer

the matter to the Director of Public Prosecutions in reliance on certain limited information furnished to it by DCC, and presumably in

reliance on other information in its possession. DCC made the somewhat justified complaint that there was no further communication

with them, and no further information was requested from them by the Director of Public Prosecutions. In any event, when further

information was available to DCC, through the reports of experts which were subsequently obtained, it seems to me only proper that

such information should be given to the Stock Exchange. While, of course, once the reference to the Director of Public Prosecutions

has been made, the decision as to what future action to take is for him and not for the Stock Exchange, nevertheless I see nothing

improper in DCC giving further information to the Stock Exchange and asking that it be sent to the Director of Public Prosecutions for

consideration by him, if the Stock Exchange should think this was proper. It is of course in the interests of DCC that there should be

no prosecution, but equally it is in the public interest that a decision as to whether there should be a prosecution should be taken by

the Director of Public Prosecutions in the full knowledge of all the facts, not only those which were originally communicated to him.

29. I do not accept the argument put forward on behalf of Fyffes that DCC acted improperly in furnishing the documents to the Stock

Exchange rather than directly to the Director of Public Prosecutions. While there may originally have been some suggestion, oddly

enough emanating from the Stock Exchange rather than from DCC, that there should be some form of vetting process, and further

information should only be given to the Director of Public Prosecutions if it would benefit DCC at the end of the day this was not the

basis on which the documents were furnished to the Stock Exchange. The confidentiality agreement makes it quite clear, firstly that

the Stock Exchange were at liberty to make a report to the Director of Public Prosecutions on its views in the light of the documents,

whether such report be in favour of or against DCC, and secondly, that the Stock Exchange, being aware of its obligations under

s.115, expressly reserved the right to disclose the documents if there was a legal requirement for them to do so.

30. On the question of fairness or unfairness, it is of course obvious that there was an advantage, or potential advantage, to DCC in

disclosing these documents in the limited fashion in which it did so. However, I cannot see how it can be said that Fyffes were placed

at any disadvantage through the disclosure of the documents. There is an important distinction to be drawn between the facts of the

present case and the Goldberg case, in that in the latter both the civil action and the inquiry by the regulatory authority were

instigated by the Ng’s, while in the present case there is no suggestion that Fyffes were in any way responsible for the actions of or

investigation by the Stock Exchange. While it may be argued that there is a peripheral advantage to DCC, in that a prosecution might

damage them in the civil action, this does not come remotely near the serious consequences which would have to exist were the

general rule to be set aside on the basis of unfairness.

31. It is not necessary for the purposes of the present case to determine the limitations which may exist as to the reasons for a

limited disclosure. Clearly there are circumstances in which a limited disclosure may not be protected, as for example, if it were made

to an interested party solely for the purpose of embarrassing or prejudicing the other party in civil proceedings. It is sufficient to say

that the basic rule applies where there is a nexus between the disclosing party and the party to whom the documents are disclosed.

Whether there are circumstances in which privilege may be preserved where there is no such nexus is beyond the scope of this

decision.

32. Accordingly I would dismiss this appeal.