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Giuffre v Prince Andrew: What happens next?

Insights / / London

Press coverage and speculation about Prince Andrew and Virginia Giuffre continues unabated, with the focus now on the Court proceedings. Whilst all eyes are on that process, Prince Andrew’s legal team’s approach to date, of avoidance rather than total engagement, has begun to solidify the public’s often-kept opinion that there is “no smoke without fire”. Rightly or wrongly, the judgment of Prince Andrew’s alleged behaviour, even without the trial having been heard, appears to be sealed.

Having been served on Monday 13 September under the provisions of an order made by Judge Kaplan of the New York Federal Court, the Prince had 21 days from service to respond to the allegations of battery, assault and sexual abuse of Virginia Giuffre when she was under the age of 18 in 2000-2002.

Ms Giuffre’s claim was issued within 5 days of the Limitation period expiring under the provisions of the New York Federal Child Victims Act 2019.

Since being served, the parties have agreed an extension of time. Prince Andrew, therefore, must file a response (if any) in the United States District Court for Southern New York, by 29 October (unless the parties agree a further extension of time).

There are at least five potential ways that this could play out:

  1. The Prince could fight and defend the claim by submitting to the jurisdiction of the New York court. This appears to be unlikely given his and his legal team’s lack of engagement with the proceedings thus far. Inevitably, this leads to trial (following months of preparation), and has the unintended and undesirable consequence of drip feeding the press and perpetuating the media-storm.
     
  2. Secondly, a settlement could be negotiated between the parties, the terms of which are likely to be confidential with provision for both parties to make agreed statements to the press (including a standard clause of no admission of liability reflecting Prince Andrew’s denial of the claims). However, this is unlikely to stop the ongoing press coverage or indeed to satisfy the public’s appetite for scandal. The perception is that Virginia Giuffre wants a public apology from her alleged assailant not least, as she has been deprived of the same from disgraced financier Jeffrey Epstein.
     
  3. Thirdly, there has been chatter of diplomatic or ‘sovereign’ immunity. The application of this in a modern context, however, is yet to be seen and is believed to only truly apply to the Queen herself, not extending to her children.
     
  4. Fourth, Prince Andrew may decide to challenge the New York court’s jurisdiction over him and make a limited appearance in the New York proceedings for that purpose without submitting to the jurisdiction. He was not present within the jurisdiction at the time proceedings were issued or served, and it appears he has not submitted to the jurisdiction to date, for example by fully participating in hearings. Nevertheless, challenging jurisdiction is, perhaps, a futile route for Prince Andrew to pursue, with the added consequence that it is likely to deepen public disaffection.
     
  5. Fifth, and perhaps most interestingly, Prince Andrew could continue to avoid committing himself to an overseas civil litigation process and, in effect, ignore the claim. Such an approach would likely only intensify a negative view of the Prince in the public eye.  “No smoke without fire and the Prince continues to be evasive”.

If Prince Andrew nonetheless chooses the fifth option, Virginia Giuffre would then have two potential routes:

  1. To apply for a judgment in default; or
     
  2. To seek a direction for a full trial, notwithstanding the absence of Prince Andrew and to seek to gather evidence for that trial. This could well invoke the Evidence (Proceedings in Other Jurisdictions) Act 1975.

A judgment in default may be a pyrrhic victory for Ms Giuffre, and somewhat problematic in terms of enforcement. There are no automatic reciprocal enforcement arrangements between the US and UK, and so to enforce a judgment within England, Ms Giuffre would have to, essentially, start new court proceedings in the English jurisdiction.

There are several defences that Prince Andrew could then employ to render a foreign judgment unenforceable within England and Wales, of note are two:

  1. That the New York court has no jurisdiction over him, this is the strongest defence in the Prince’s arsenal given his lack of connection to the US (either residential or domiciliary); and/or
     
  2. Public policy defence regarding either (or both) punitive damages or the application of the Child Victims Act 2019. Punitive damages are a settled principle of US law, however they are only granted by the English courts in exceptional circumstances. Moreover, the Child Victims Act 2019 extends limitation periods, of which there is no equivalent rule in English law. As such, both could be considered alien to English law principles, and may well be regarded as contrary to public policy.

Alternatively, if Ms Giuffre wants to achieve some closure, recompense for the alleged wrongs and to feel vindicated in the Court of public opinion, she can ask the New York Court to request the English High Court to invoke the Evidence (Proceedings in Other Jurisdictions) Act 1975. If invoked successfully this would compel Prince Andrew to attend the High Court in London to be examined, with his evidence standing in the New York court at trial, irrespective of his submission to the New York jurisdiction. There is uncertainty surrounding the scope of such a relatively obscure piece of legislation and so its applicability potentially contentious in itself.

It is hard to predict how Prince Andrew will now deal with the issued proceedings against him, particularly given the evident PR disaster that his approach to the civil litigation to date has already created. Looking forward, it would be advisable to try to extinguish media fires instead of stoking the flames of public outrage. It is difficult to see how ignoring the proceedings now will aid Prince Andrew’s cause.

In this commentator’s view of the options identified above, Prince Andrew would be well advised to pursue a settlement. Having one’s life closely examined by the Court and so many people all over the world watching the proceedings is not something to engage in lightly. It is an unfortunate reality that it is usually the allegations that are remembered, not the vindication nor acquittal of a Court. Compromise is easier said than done, but certainly something to consider wholeheartedly, especially when the stakes are so high.

Nick Goldstone

Nick Goldstone Head of Dispute Resolution

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