Linklaters’ litigation partner Diana Good has been criticised in the Court of Appeal for seeking to “over-persuade” a key witness to “give evidence that he could not properly give”.
Good’s professional conduct and “reliability” were questioned in a judgment handed down by Lord Justices Nourse, Brooke and Buxton when they ruled that a key witness had committed perjury during a long-running dispute between insurance company Odyssey Re (previously Sphere Drake Insurance) and OIC Run-Off (formerly Orion Insurance Company).
In the High Court, Mr Justice Langley had cleared Good “of conscious impropriety”.
In the Court of Appeal, Jonathan Sumption QC, lead counsel for Odyssey, did not challenge this ruling.
But two of the three Appeal Court judges drew attention to Good’s conduct in handling key witnesses – especially Leslie Sage, a former general manager and an executive director of Orion, who the judges said had committed perjury.
The criticisms focused on a letter written by Good to Sage on 27 July, 1989, in which she drew his attention to a phrase he used in an agreement between Orion and Sphere at a meeting in April 1975 that would be “vital” to their case.
The judges accepted Sumption’s argument that Sage had offered no clear recollection of what was said at this meeting before receiving the letter from Good.
In his judgment, Lord Justice Nourse found it difficult to “reconcile” some of Good’s evidence, that had been accepted by Langley without qualification.
Lord Justice Brooke said: “I am bound to say, viewing the matter objectively, that I find the terms of her letter to these three witnesses very surprising.
“She knew that all their memories of this far distant meeting were rocky, to say the least, but here she was, in a letter whose express purpose was to assist them in preparing their draft statements, telling them it was ‘vital’ to ‘our’ case that ‘we’ establish that what was agreed on 23 April, 1975 was a goodwill agreement only.”
Of Langley’s exoneration of Good, Lord Justice Brooke said: “He appears not to have appreciated the way in which, no doubt through inexperience, she was engaged in drawing them much too much into the centre of the
litigation team, and failed to realise she must not consciously or unconsciously pressurise witnesses into adopting a particular me-mory of long-ago events by telling them that it was critical to their side’s success in the litigation
that they should do so”.
In a statement, Linklaters pointed out that Sphere Drake had not challenged Mr Justice Langley’s ruling concerning Good.
“The letter written in July 1989, of which one member of the court was critical, was considered in detail by Mr Justice Langley, who entirely rejected Sphere Drake’s arguments in relation to it and said that he had no doubt whatever that Mrs Good gave the court a wholly honest, frank and reliable account of events.
“As Lord Justice Buxton pointed out, the letter was fully consistent with the evidence Mr Sage had already provided to us.”
Clifford Chance acted for Odyssey and Lovells acted for OIC.
