# High Court Inspector exonerates Jim Flavin



## Brendan Burgess (20 Jan 2010)

The report's [broken link removed]go to 84 pages on their own. Here is the key bit about Jim Flavin



> *Mr. Flavin - Deliberate Wrongdoing or Dishonesty?*
> 
> 11.3.86 I have concluded, on the basis of all the evidence which I have heard from all of the witnesses and from Mr. Flavin himself, that there was no deliberate wrongdoing or dishonesty on his part.
> 
> ...



[broken link removed]


Another interesting extract from the report 



> “No finding of mine can repair the reputational damage to both DCC and Jim Flavin. At least, however, the suggestion that the dealing was intentionally wrongful, or that it was evidence of dishonesty on the part of Jim Flavin and of a culture of disrespect for the companies code in DCC, can be dispelled.”



The damage done to Jim Flavin has been immense. The shareholders have lost out as well, by losing such a good guy from the company, even though the company has done well without him.

Good analysis on Irish-Lawyer.com 

I was a shareholder in Fyffes at the time. The fundamental trading figures were simply not an issue for determining the share price. It was all aobut the WorldofFruit.com and how many zillions that was going to earn from the company. In common with most dot com stocks, trading losses or even reduced profits were just not a concern. 

Statement of interest: I was a shareholder in DCC at the time and still am.


----------



## roland (20 Jan 2010)

It might be the case that he was taking advantage of the dot.com bull run, but if he did have insider information that could have influenced the price then was he not duty bound by law to not transact in those shares?  I don't believe there is room here for nuance.  

Also, the absurd and persistent suggestion made by Mr Flavin that the sale of the Fyffes shares was not instructed by him (but by a Dutch entity acting independently) ranked for me as a new low.  I think the ease at which he seemed able to make this claim and the clear assumption on his part that he would get away with it suggested that he might not be alone in Irish business in acting like this.  That perhaps is the real painful reading here.

It is genuinely difficult to read this report as being independent when its conclusions seem to be stuffed with 'opinions' from other insiders who make a living out of exactly what happened in this case - lawyers, tax consultants, Flavin's stockbrokers etc.


----------



## onq (20 Jan 2010)

There seems to be a distinction drawn here between 

(i) having the knowledge and 
(ii) engaging in dealing based on the knowledge

There is no doubt that he had the knowledge.
There is some doubt that he engaged in dealing based on the knowledge.

Other parties approached him to sell the shares we are told.
Should he not sell the shares merely because this knowledge was available to him?

My understanding is that he couldn't disclose the knowledge without incurring a breach of trust.
I also understand that releasing this knowledge would have devalued the shares owned by DCC.
In other words he was twice damned if he revealed what he knew.

He was also bound to act in the best interest of his company.
He was in receipt of a fair offer for the shares and to refuse to sell them might have been seen to act against his company by not taking a profit.
If that had ocurred and the shareholders found this out they might have referred him to Paul Appleby and he might have been answering complaints by them.

If my assumptions are correct then he was required to sell the shares and say nothing.

Only if it was the case that there were other,compellign reasons for him not to sell the shares could he have credibly retained them without censure of his own shareholders.
The fact that neither purchaser claims grievance in this regard and both made the approach to him first suggests the report is fair and balanced.

No direct connection to either company although I know one person who works for DCC - not yer maun.

FWIW

ONQ.


----------



## Bronte (21 Jan 2010)

My understanding is that the Supreme Court thinks there was insider dealing but the High Court Inspector disagrees.  Naturally so, we in Ireland don't have such things as insider dealing or any white collar crime for that matter.  Everybody is far too honest.  And nobody will ever go to jail for any white coller crime whatsoever.


----------



## Brendan Burgess (21 Jan 2010)

I understand this differently.

The Supreme Court found as a matter of fact that there was insider dealing. 

The High Court Inspector found that it was not deliberate wrongdoing or intentional dishonesty. 

He also found that Jim Flavin understands and adheres to the highest standards of corporate governance. 

The fact that a lot of business leaders have behaved badly, does not mean that all our top executives are corrupt.


----------



## onq (21 Jan 2010)

I was discussing this today with a client with bank connections [who raised it] and he was more inclined to the negative view so we tossed it back and forth.

We agreed that the issue centred on whether or not there was a history of approaches to sell shares previously which were rebuffed.

If there was, but this time [with the insider knowledge] Flavin sold, then it seemed that a case could be made that he did so with the benefit of that knowledge.

That's not to say he couldn't have decided to sell if he hadn't the knowledge, but without it that would be happenstance if the shares later fell.

ONQ.


----------



## onq (21 Jan 2010)

Brendan said:


> I understand this differently.
> 
> 1. The Supreme Court found as a matter of fact that there was insider dealing.
> 
> ...



<numbers added for brevity>

Names and personalities aside, on reflection this dosn't seem to make any sense, although I accept your summary is accurate.

If 1. is true and it is an offence then 2. cannot be , 3. falls and 4. is a non-sequitur.

Murder and manslaughter are separated by premeditation and intent.

Is it being suggested by this Report that the shares were sold accidentally, or that such a huge transfer of assets was done "in the heat of the moment"?

ONQ.


----------



## canicemcavoy (21 Jan 2010)

Just curious - has anyone in Ireland been jailed for insider dealing?


----------



## Brendan Burgess (21 Jan 2010)

> 1. The Supreme Court found as a matter of fact that there was insider dealing.
> 
> 2. The High Court Inspector found that it was not deliberate wrongdoing or intentional dishonesty.
> 
> ...



Why not? 

He decided to sell the shares. He did not consider it to be insider dealing. Therefore he was not doing wrong deliberately and he was not being intentionally dishonest. 

He knew the law very well. He was trying to adhere to the law. 

Let's be absolutely clear, the High Court judge agreed that it was not insider dealing.  This is not a black and white legal issue - it is a matter of opinion. The Supreme Court judges found that it was insider dealing and this will inform people in possession of such information in future. 

He made an error of judgment.


----------



## onq (21 Jan 2010)

Don't get me wrong Brendan,

I'm not trying to be moralistic on this one.

I am trying to understand the hierarchy of decisions and legal implications.

The Supreme Court judges decision cannot be subverted by a High Court ruling

Thus, I fail to see how lesser institutions can issue this Report which says this now.

ONQ.


----------



## Brendan Burgess (21 Jan 2010)

There is no difference between the two rulings. 

Both accept that there was insider trading. 

The Supreme Court did not rule on the motivation behind it.

The High Court Inspector did.

Read again a barrister's explanation on Irish Lawyer.com. He explains the technical nature of the offence.

http://www.irish-lawyer.com/journal/2010/1/19/jim-flavin-gets-some-justice.html

Brendan


----------



## roland (21 Jan 2010)

Brendan, I'm struggling with your view that this is a simple case of an error of judgement.  I think Flavin deserves a bit more credit than that...

The law is quite simple, and for good reason, that you can't transact in shares when you have insider information.  To suggest that Flavin did not know he had insider information is a moot point I think.  Parsing this into the degree of influence this had on share prices seems to me to ignore the the law.  Approaches by other parties made to a party who has insider information should not exonerate the latter from his duties under law.

You haven't commented on DCC's (Flavin's) tax avoidance scheme in Holland, which patently could never have worked.  The fact that tax consultants and lawyers concocted and aided such nonsense gives me little confidence in the views of such 'experts' given in Shipseys report.  The fact that Flavin clearly knew it was a nonsense gives me little confidence in him.


----------



## Complainer (21 Jan 2010)

I don't accept the 'damned if you do, damned if you don't' explanation. If this was the case, it was entirely predictable as a result of the position he had entered. He should therefore (given all the expert advice available to him) made sure he wasn't put into this position.

Some interesting comments from today's Irish TImes letters page are worth sharing;


> Madam, – Who is Bill Shipsey to tell us that Jim Flavin has no case to answer? (“Flavin deal an ‘error of judgment’, Fyffes inquiry concludes”, January 20th).
> Surely it is a matter for the Director of Public Prosecutions to prosecute Mr Flavin and let a jury decide if he has done something illegal. Justice would be seen to be done. At present it appears that Mr Flavin has got away with thumbing his nose at the Supreme Court. – Yours, etc,
> CJ ROBINSON,
> Pinewood Crescent,
> ...


----------



## Brendan Burgess (21 Jan 2010)

roland said:


> You haven't commented on DCC's (Flavin's) tax avoidance scheme in Holland, which patently could never have worked.  The fact that tax consultants and lawyers concocted and aided such nonsense gives me little confidence in the views of such 'experts' given in Shipseys report.  The fact that Flavin clearly knew it was a nonsense gives me little confidence in him.



I have not seen this mentioned in the report which did surprise me. 

The way it was portrayed in the media made it appear like tax evasion. 
This happened some years ago.
The Revenue would have conducted an audit.
I had expected them to be named in the Tax Defaulters list.

However, the legislation was changed very shortly after the DCC transaction, so maybe the Revenue also felt that it was a technical offence, if indeed there was any offence. 



> Brendan, I'm struggling with your view that this is a simple case of an error of judgement.



that was the conclusion of Shipsey who spent months investigating it.


----------



## Bronte (22 Jan 2010)

The Supreme Court has ruled that there was insider trading. This is illegal. I don't care whether Flavin didn't or did know it was wrong, what he did was illegal.  A person with such a position has a responsiblity to ensure that they don't insider deal and have the resources to seek good advice in order not to do so even in error.

Take these two scenarios

a) If I buy a car in the North and bring it South and don't pay VRT because I don't know that's illegal and I didn't do it deliberately to avoid the law then now is that a defence? Tell that to customs and excise.

b) If I in error don't declare all my income on my tax return, say I received 1K for a job and forgot about it (genuinely forgot to put it in the return when doing the calculations which can easily happen) revenue are in no circumstance not going to penalise me. It's not a defence. 

But maybe now that we have this new defence from the High Court we can all benefit from it. But of course this new defence doesn't apply to the little people.


----------



## Bronte (22 Jan 2010)

Complainer said:


> I don't accept the 'damned if you do, damned if you don't' explanation. If this was the case, it was entirely predictable as a result of the position he had entered. He should therefore (given all the expert advice available to him) made sure he wasn't put into this position.
> 
> Some interesting comments from today's Irish TImes letters page are worth sharing;


 
Absolutly right complainer, they sum it up very nicely.


----------



## Brendan Burgess (22 Jan 2010)

Bronte said:


> Take these two scenarios
> 
> a) If I buy a car in the North and bring it South and don't pay VRT because I don't know that's illegal and I didn't do it deliberately to avoid the law then now is that a defence? Tell that to customs and excise.
> 
> ...



I am not sure that I understand your point here.  Both examples you give are criminal offences for which you could go to jail. You will not be prosecuted for either. In fact, I would guess that in case b) you won't be penalised either because of the size of it.

It is popular to say that there are two laws - one for the big people and one for the small people. The reality is that there is a criminal law for serious criminal offences and many small offences such as the oversight you mentioned are not prosecuted at all.

But perhaps you would like to see our jails filled up with everyone who made an error of judgment? 

Brendan


----------



## Bronte (22 Jan 2010)

I see two laws, I see wrong doing by politicians and bankers in particular (people in powerful positions) but I never see any of them going to jail for anything. It never happens, but I do know that plenty of small time debtors have gone to jail in the last year so yes I think there is one law for the rich and one for the poor. 

If I'm incorrect prove me wrong rather than asking me to prove it the other way round. 

In Ireland it seems to me that those in positions of power can subvert planning laws, receive expenses without receipts, hire consultants on amazing salaries, appoint friends and political allies to boards and quangos, run billion euro bodies (FAS) that are completely incompetent, get loans from banks without any paperwork, have regulators dining with bankers and when the going gets tough a fall guy is found who rides off into the sunset with a bribe for silence of a lump sum addition to pension,  none of this is illegal. We have bankers moving money around willy nilly and loaning vast sums of money to developers on a phone call fueling the property bubble and then those same bankers giving outrageous loans to borrowers to purchase houses built on these same sites so the borrowers will be mortgaged for life to pay the builders who in turn pay the bank. And very soon now we'll have the banks turning the screws on those same mortgage holders with higher interest rates to pay back NAMA.

We have had two ex taoishigi have bank loans written off when in financial difficulty and I wonder how many current politicians have the same situation currently.

The powerful circle in Ireland of which Flavin is a member are too cosy, be that politicans, bankers, developers, directors & judiciary. It leads to complete corruption. That is what we have in Ireland complete and utter corruption.

Here now in this case the Supreme court has found wrongdoing but once again somehow it's ok because sure it was an error of judgement.

If the Supreme court has found that someone was doing insider dealing, and that is an offense under the law and the person should get punishment for that.

We now finally have one clear case of white coller crime and once again nothing so it makes me angry.


----------



## Complainer (22 Jan 2010)

Regardless of the detail of Shipsey's report, at the end of the day, it comes down to Shipsey's opinion and interpretation of the facts.

If this happened in the USA, he would be coming to the end of his time in jail about now.


----------



## Bronte (22 Jan 2010)

Complainer said:


> If this happened in the USA, he would be coming to the end of his time in jail about now.


 
That's right.  Once again excellent point ( we don't get on very often  but I'm fully in agreement with you. )


----------



## roland (22 Jan 2010)

Bronte said:


> I see two laws, I see wrong doing by politicians and bankers in particular (people in powerful positions) but I never see any of them going to jail for anything. It never happens, but I do know that plenty of small time debtors have gone to jail in the last year so yes I think there is one law for the rich and one for the poor.
> 
> If I'm incorrect prove me wrong rather than asking me to prove it the other way round.
> 
> ...



I agree with all of this.  What is most galling in this case for me is not so much that Flavin broke the law (on insider trading and in relation to the farce of a tax scheme he set up), but that he did so with such contempt and arrogance.  It seems quite clear to me that there is an echelon in Irish business who assume they can and will get away with all sorts of things.  Shipsey's reliance on the same echelon of people for opinions about Flavin is simply beyond belief.

History is littered with powerful people who, when they are called to account, are seemingly 'amazed' that what they were doing was unlawful.  Shipsey seems to have been bought in by Flavin's amazement and indeed the opinions of people who rely on the likes of Flavin for their income.  The cosy conclusion that it was all an error of judgement is a real kick in the teeth for Ireland as we try to make some positive progress out of the mire we are in.


----------



## Brendan Burgess (22 Jan 2010)

So Bronte and Complainer - your argument is as follows: 

All rich business people are corrupt. 

Therefore Jim Flavin is corrupt. 

Ignore the findings of the High Court Inspector that Jim Flavin adheres to the highest standards of governance. The High Court Inspector is obviously wrong, because we all know that everyone in authority is corrupt. 

Everything in America is good. 

There was no need for a criminal trial or anything as we all know he was guilty of a criminal offence. 

Therefore Jim Flavin should have gone to jail. 

Or put it another way, we have civil liberties, e.g. the right to presumed innocenct only for the little guys. If they are big guys, they are so obviously guilty that they don't have any rights. 

Everything in America is good, so let's bring back the death penalty while we are at it. But keep it for people earning over €1m a year.


----------



## canicemcavoy (22 Jan 2010)

Well, actually Brendan, I think the argument is that ignorance of the law is usually no excuse, and it seems odd that it should apply here.


----------



## Complainer (22 Jan 2010)

Brendan said:


> So Bronte and Complainer - your argument is as follows:
> 
> All rich business people are corrupt.
> 
> ...



Boy, you're on form today Brendan. Neither of us said anything nearing this. When you've calmed down, you might want to rewrite your post, but this time, don't leave out the Supreme Court judgement, which ruled that as a matter of law, Flavin did indeed do some insider trading. Does Shipsey get to overrule the Supreme Court?


----------



## canicemcavoy (22 Jan 2010)

Brendan said:


> So Bronte and Complainer - your argument is as follows:
> 
> All rich business people are corrupt.
> 
> Therefore Jim Flavin is corrupt.


 
Brendan, presumably you think this is also the argument of the Supreme Court?


----------



## Brendan Burgess (22 Jan 2010)

Complainer said:


> Boy, you're on form today Brendan. Neither of us said anything nearing this. When you've calmed down, you might want to rewrite your post, but this time, don't leave out the Supreme Court judgement, which ruled that as a matter of law, Flavin did indeed do some insider trading. Does Shipsey get to overrule the Supreme Court?



Bronte


> I see two laws, I see wrong doing by politicians and bankers in particular (people in powerful positions) but I never see any of them going to jail for anything. It never happens, but I do know that plenty of small time debtors have gone to jail in the last year so yes I think there is one law for the rich and one for the poor.



Complainer that is exactly what you said




> If this happened in the USA, he would be coming to the end of his time in jail about now.



I presume that you meant Flavin by "he". 

So you are sending someone to jail without being charged, never mind being found guilty of any crime? 

The Supreme Court found, in a civil case between Fyffes and DCC that there was insider trading. This was a civil case and not a criminal case.


----------



## onq (22 Jan 2010)

Brendan said:


> There is no difference between the two rulings.
> 
> Both accept that there was insider trading.
> 
> ...



I'm not a legal eagle, but here are my thoughts on the matter and bear in mind I am acting as devil's advocate here.

Motivation and provocation are certainly taken into consideration when considering criminal offences, particularly serious ones.

A man kills another man - has he committed murder?

If he's attacked by the other man with a deady weapon and is in fear of his life he has acted in self defense - it is not considered murder.

If there is an assault where there is intent to harm but not kill, and if there is no premeditation in relation to the fatal blow, then it may be considered manslughter, not murder.

If there is premeditation, malice aforethought and an assault with a deadly weapon with intent to commit murder, then murder has been committed.

Now there are many shades and degrees of offence depending on the particular circumstance, the degree of provocation, whether drink or drugs were taken, the mental state of the perpetrator and victim, the competence of each and their ages, but these three above give a reasonably broad overview.

Apply this to Flavin's case and it seems to me that motivation is a moot point. Shades of grey don't arise when the case is clear cut and an offense has been committed. In the present case we can neither prove nor disprove his motivation and suggesting he didn't know what he was doing - a guy whose strict adherence to company practice was made much of in the report - is, frankly, disengenuous.

He either knew what he was doing or he didn't.

He cannot be both competent and clueless.

That equation seems totally out of balance.

ONQ.


----------



## onq (22 Jan 2010)

Brendan said:


> There is no difference between the two rulings.
> 
> Both accept that there was insider trading.
> 
> ...



I'm not a legal eagle, but here are my thoughts on the matter and bear in mind I am acting as devil's advocate here.

Motivation and provocation are certainly taken into consideration when considering criminal offences, particularly serious ones.

A man kills another man - has he committed murder?

If he's attacked by the other man with a deady weapon and is in fear of his life he has acted in self defense - it is not considered murder.

If there is an assault where there is intent to harm but not kill, and if there is no premeditation in relation to the fatal blow, then it may be considered manslughter, not murder.

If there is premeditation, malice aforethought and an assault with a deadly weapon with intent to commit murder, then murder has been committed.

Now there are many shades and degrees of offence depending on the particular circumstance, the degree of provocation, whether drink or drugs were taken, the mental state of the perpetrator and victim, the competence of each and their ages, but these three above give a reasonably broad overview.

Apply this to Flavin's case and it seems to me that motivation is a moot point. Shades of grey don't arise when the case is clear cut and an offense has been committed. In the present case we can neither prove nor disprove his motivation and suggesting he didn't know what he was doing - a guy whose strict adherence to company practice was made much of in the report - is, frankly, disengenuous.

He either knew what he was doing or he didn't.

He cannot be both competent and clueless.

That equation seems totally out of balance.

ONQ.


----------



## Brendan Burgess (22 Jan 2010)

> He cannot be both competent and clueless.


The same presumably applies to the High Court judge who found that it was not insider trading?  She judged that it was not insider trading. The Supreme Court judges found that it was. 

Jim Flavin did not have the 5 Supreme Court judges to consult with before doing the transaction. 

It is a grey area. It is not comparable to murder where the Gardai find me with a smoking gun and a dead man on the ground.

I know it takes a lot of work, but read through the conclusions of the High Court Inspector's report. It is a more systematic setting out of the arguments. Or check out the summary on Irish-Lawyer.com

In case you won't even do that, here is a quote from that



> The Supreme Court decision was a more than normally "technical" decision, a consideration which by and in itself should have restrained the nature of the commentary upon it. Briefly, the Supreme Court's decision was that the definition of "price-sensitive information" in the [broken link removed] was such that insider-dealing had occurred. This was so even though, at the time of the dealing, all parties (even, it seems, the eventual complainants) agreed, some after taking legal advice, that such dealing was not involved (an opinion that the High Court shared).
> Several commentators did not shrink from stating as a fact that the Supreme Court had found Mr Flavin guilty of the criminal offence of insider-trading, proving thereby that they had not looked at the judgments to which they were so anxious to attribute an excessive significance.


----------



## Brendan Burgess (22 Jan 2010)

Actually Irish-Lawyer updates the story here in the light of the Irish Times editorial 

Never mind the facts 

It deals more eloquently with the criminal vs. civil issues


----------



## roland (24 Jan 2010)

Brendan said:


> Actually Irish-Lawyer updates the story here in the light of the Irish Times editorial
> 
> Never mind the facts
> 
> It deals more eloquently with the criminal vs. civil issues



It is difficult to read to read this piece from irish-lawyer as a completely unbiased piece, given it is written in relation to a report by a law library buddy.  The basic fact remains that Flavin had insider information and used it to transact in the market at a time when the law said he shouldn't.  No amount of technical analysis will change that fact.  I don't believe it is a grey area.  The nuances of whether he knew the law, or knew he was breaking it, or had other reasons for doing what he did, or whether the purchasers in the transaction felt duped etc. etc. are not really relevant. 

I note the piece in irish-lawyer does not make any reference to the farce of a tax scheme that Flavin put together.  If that wasn't a fraud on the taxpayer I don't know what was.  How many other frauds like this have been put together by Irish companies?


----------



## Brendan Burgess (24 Jan 2010)

roland said:


> It is difficult to read to read this piece from irish-lawyer as a completely unbiased piece, given it is written in relation to a report by a law library buddy.



Right, I see your point. So the only people who can comment on this issue are people without any legal training. That's fair enough. 

Did the Shipsey report refer to the tax scheme? I don't think it did, but I am open to correction. 

As I said in an earlier post, the Revenue will have investigated this transaction by now and must have decided it was not a fraud or else the company would have appeared in the tax defaulters list. 

It is funny, when big multinational companies relocate to Ireland to take advantage of our low taxes, they are welcomed with open arms. In fact, they are given grants to locate here. But when an Irish person or company arranges their affairs to take advantage of lower tax rate abroad, it's characterized as fraud or unpatriotic.


----------



## onq (24 Jan 2010)

Brendan said:


> The same presumably applies to the High Court judge who found that it was not insider trading?  She judged that it was not insider trading. The Supreme Court judges found that it was.
> 
> Jim Flavin did not have the 5 Supreme Court judges to consult with before doing the transaction.
> 
> ...




Brendan,

You know me too well. 

Let's keep this on ground I'm comfortable with and keep it simple.

How does what a High Court Judge or an inspector end up undermining the decision of the Supreme Court?

ONQ.


----------



## canicemcavoy (24 Jan 2010)

http://www.tribune.ie/news/editoria...l-clifford-if-you-occupy-the-dizzy-heights-o/



> The paragon of corporate Ireland, with 40 years of experience in trading shares, had satisfied himself that he was not in possession of price sensitive information when he traded. That his company managed to reap €80m in profit as a result of his ignorance was, we must conclude, just, well, lucky.
> 
> 
> 
> ...


----------



## canicemcavoy (24 Jan 2010)

Is this Bill Shipsey the same one who urged the courts to protect Liam Carroll for the "public interest", and nothing to do with poor Liam himself?

http://www.irisheconomy.ie/index.php/2009/09/07/dutch-courage/



> Urging the court to appoint Ray Jackson examiner, Bill Shipsey SC said the interests of the wider community had never been “so much to the fore” in any application for court protection although there was no one arguing the public interest in this case except the companies themselves.


Also, I'm still curious to know how 1 man has to power to overrule the Supreme Court's judgement. What am I missing here?


----------



## Bronte (25 Jan 2010)

I never said rich people are corrupt nor do I think it.

But I do think that in Ireland and Dublin in particular amongst a certain set of people there is a mindset that you are all in a club together and one protects the other. 

As another poster said can we go back to the basics (I can't read the report it's more than 800 pages long) 

The Supreme Court has ruled there was insider trading.

The High Court Inspector says that it was not because Flaving acted in honesty or ignorance.

To me the High Court Inspector is overruling the Supreme court judgement. How can this be?

Also if the report in the Tribune is correct we are to believe that a man dealing in shares for 40 years, who according to the Supreme court was insider dealing, did a share sale whereby he made massive profits but because he didn't do it on purpose the High Court Inspector says he didn't do anything wrong. That smells rotten to me.

For the sake of transparency does anyone commenting on here know Flavin?


----------



## Bronte (25 Jan 2010)

roland said:


> . Shipsey's reliance on the same echelon of people for opinions about Flavin is simply beyond belief.
> 
> Shipsey seems to have been bought in by Flavin's amazement and indeed the opinions of people who rely on the likes of Flavin for their income. .


 
Is this true?  That the people Shipsey consulted with are linked to Flavin, are business colleagues of Flavin and rely on Flaving for some of their income?


----------



## Brendan Burgess (25 Jan 2010)

> (I can't read the report it's more than 800 pages long)
> 
> The Supreme Court has ruled there was insider trading.
> 
> ...



Did you read Irish Lawyer .com which summarises the issues very well. Of course, the Inspector did not overrule the Supreme Court.

I don't know Jim Flavin apart from watching his record over the years. As I have said earlier, I was a shareholder in both Fyffes and DCC at the time.


----------



## Brendan Burgess (25 Jan 2010)

I don't think that anyone questions the integrity or competence of the Director of Corporate Enforcement? 

He chose to appoint an Inspector. 

If we combine all the reasons mentioned for his unsuitablity and apply them to other people, the only person who would qualify as an inspector would be someone like Joe Higgins. 

The inspector can't be a barrister because all barristers have defended some clients who should not have been defended.
He can't have any contacts in business because someone he knows will know someone who knows Jim Flavin. 

The reality, of course, is that the Inspector has to be a top class Senior Counsel who knows commercial law. No one at the time of the appointment, questioned the integrity or suitability of Bill Shipsey. But because he did not produce a "hang em and flog em" finding, they are now unhappy.


----------



## Bronte (25 Jan 2010)

Yes I read the opinion of O'Rourke (whom I'm sure is a very emminent qualified person).  But the only way one could really understand anything is by reading the report itself.

He's mad into the word technically.  Well it seems perfectaly clear to me that the Supreme Court had ruled there was insider trading and I don't care how technically or not technically it is, it is a ruling of insider trading by the highest court in the land but the High Court Inspector seems to be implying that because it was not done intentionally than there is no offence.  This is the bit I get lost on. 

Incidentally I don't understand how a report on a single transaction needs to run to 800+ pages.  Designed so us mere plebs cannot figure it out no doubt.


----------



## Bronte (25 Jan 2010)

Brendan said:


> . But because he did not produce a "hang em and flog em" finding, they are now unhappy.


 
I wouldn't agree with you there, I find it odd, as do many others, that the Supreme Court says there was an offence and this report has set about to prove that the offence was an innocent mistake and so doesn't matter.

So it goes back to it was an offence under the law and should be punished.  Maybe this is too simplistic but that's the way I see it.  

It would be interesting to have the views of some of the legal eagles on AAM because I find it difficult to understand it maybe they could shed some light on it for the rest of us.  Thinks like how does the High court Inspector work as versus a Supreme court ruling.


----------



## Bronte (25 Jan 2010)

I've just thought of something else.  Are Shipsey and O'Rourke both barristers?


----------



## canicemcavoy (25 Jan 2010)

Why should I care that one guy - a guy who thinks that saving Liam Carroll was in the public interest, incidentally - disagrees with the Supreme Court? I'm still confused by this.


----------



## Complainer (25 Jan 2010)

Brendan said:


> Right, I see your point. So the only people who can comment on this issue are people without any legal training. That's fair enough.


For the record, that's not what he said, but you seem to be putting 2+2 together to make about 17 regularly on this thread. Exaggerating people's positions and then ridiculing the exaggerated version doesn't make for great discussion.


Brendan said:


> The same presumably applies to the High Court judge who found that it was not insider trading?  She judged that it was not insider trading. The Supreme Court judges found that it was.
> 
> Jim Flavin did not have the 5 Supreme Court judges to consult with before doing the transaction.


No - he did not have the 5 Supreme Court judges. But presumably, he had the best expert advice that money can buy available to him at the drop of a hat. So did he seek expert advice, and how good was the advice that he received?

I'm frequently bemused when 'legal advice' is blamed for a decision one way or other. Advice is just that - advice. It is up to the recipient to exercise appropriate judgement based on that advice. There is a real 'old boy's network' going on here. Have a look at at the current board ([broken link removed]) and current management team ([broken link removed]). You couldn't make this stuff up. One women on each (you wouldn't want anyone saying that they discriminate now), and the female manager taking the soft, fluffy HR role. If that was part of a movie plot, I'd be dissapointed with the stereotyping. Look at how many of the management team are KPMG alumni.

There was a lot of groupthink going on here. When a board consists of a group of people coming largely from the same background and environment, the independence is challenged. DCC sailed so close to the wind with their tax avoidance scheme that it was inevitable that they were going to crash at some stage.


----------



## Bronte (26 Jan 2010)

From my further reading on this matter it seems the inspectors report is based on interviews with 20 people.  These 20 people just happen to be the board and executive members, and also accountants who prepare the accounts or do the necessary corporate enforcement.  Have I misunderstood this?


----------



## Brendan Burgess (26 Jan 2010)

Complainer said



> For the record, that's not what he said, but you seem to be putting 2+2 together to make about 17 regularly on this thread. Exaggerating people's positions and then ridiculing the exaggerated version doesn't make for great discussion.



Bronte said



> I've just thought of something else.  Are Shipsey and O'Rourke both barristers?



I said



> So the only people who can comment on this issue are people without any legal training. That's fair enough.



Hi Complainer

I am exaggerating to make a point.  Bronte wants to undermine O'Rourke's views because he is a barrister and so is Shipsey.

I don't remember any criticism of Shipsey at the time he was appointed. 

He is a very highly regarded person. He has done an investigation. He makes a finding which people don't like, so now they attack him. He was told to investigate the transactioins. He was not told to "go out and find Jim Flavin guilty". 

Brendan


----------



## Bronte (26 Jan 2010)

I am pointing out the O'Rourke and Shipsey are both barristers, I think that is an important point because anyone who knows the legal profession in Ireland and barristers in particular will know that they, in general, all know each other very well. I do not know for a fact that either of them know each other well, but in a small country such as Ireland it is nearly always the case and it could be relevant to O' Rourke's reasoning.

O' Rourke's view may be perfectly correct, I don't know. My view too can be equally correct. I've not 100% made up my mind on it, and in any case I don't profess to be an expert.  All I'm doing is posting perfectly valid opinions and ideas.

Going back to the High court inspectors decision, which is where my main issue is,  I actually don't understand how it seems to be in direct opposition to the Supreme Court judgment.  I also think it is important to point out that the people consulted to make the report are Flavin's peers, I think that is relevant.  Maybe in the coming days and with other people's views, more expert in this area, we may actually understand the report.  But currently it looks like another whitewash.

Another question, if this reports decision is that Flavin did nothing wrong, then he should be reinstated and the fines paid repaid?


----------



## Brendan Burgess (26 Jan 2010)

Bronte



> Going back to the High court inspectors decision, which is where my main issue is, I actually don't understand how it seems to be in direct opposition to the Supreme Court judgment.



I know you don't like the fact that O'Rourke is a barrister, but read his website and it explains that it is not in opposition to the Supreme Court finding. 



> Another question, if this reports decision is that Flavin did nothing wrong, then he should be reinstated and the fines paid repaid?



To the best of my knowledge, there were no "fines" paid by anybody. Again,this is what most people are missing. The difference between a civil trial and a criminal trial. 

Brendan


----------



## Complainer (31 Jan 2010)

Interesting take from Matt Cooper on the dangerous precedent set by Shipsey in allowing ignorance as a defence;

http://www.timesonline.co.uk/tol/news/world/ireland/article6999711.ece


----------



## canicemcavoy (31 Jan 2010)

Good comment:


> "Ignorantia haud juris, neminem excusat" was what I was taught, in Legal Studies, almost 60 years ago. It would seem that the gurus in Henrietta Street have moved this to one side?


----------



## Romulan (31 Jan 2010)

"Ignorantia haud juris, neminem excusat"

Now this was exactly what I was thinking, although not in Latin!

If I was stopped for speeding on say the N7 and told the Guard that I had received legal advice and thought the speed limit was 120KPH.............

An honest mistake Guard, off you go there.......


----------



## Bronte (1 Feb 2010)

Can the High Court's Inspectors decision be appealed?

Also could someone explain to us what the difference is between the civil and criminal in this case as I'm finding it difficult to understand.


----------



## Brendan Burgess (1 Feb 2010)

I am not sure that the High Court Inspector made any decision as such. He investigated the matter and reported on it to the Director of Corporate Enforcement.  It would have been the Director who would have made any decisions. But these decisions would have been made on actually reading the report not on trying to please the mob or some preconceived idea that someone was guilty before he had even been charged with an offence.


----------



## Bronte (1 Feb 2010)

If the Director of Corporate Enforcement doesn't like the High Court Inspectors report can he do anything else?

How does this tie in with the Supreme Courts decision of an 'offence' of insider trading?


----------



## Brendan Burgess (1 Feb 2010)

Read the report or read Irish Lawyer.com 

I know you don't like the conclusions, but they will explain systematically all the issues involved.


----------

