Has Andrew been failed by his lawyers?
Palace source speaks of “growing disquiet” over advice given to Duke of York
Royal courtiers fear that the Duke of York is being failed by the response of his London-based lawyers to the civil claim brought against him in the US by Virginia Giuffre, today’s Telegraph reports.
A royal source told newspaper:
There is growing disquiet over the advice being given to the duke by his London legal team in the face of this potentially highly damaging lawsuit which also has wider reputational implications for the institution of the monarchy.
The legal team’s wall of silence and policy of evasion only adds to the impression [that] the duke has something to hide and there is widespread concern that things have been allowed to get to this point.
This apparently well-sourced story should be taken very seriously indeed. If it’s true that “Buckingham Palace has been largely kept in the dark” about Prince Andrew’s legal strategy, then we should not be surprised if the Queen’s senior advisers have made this very public attempt to get through to him.
Giuffre claims she was forced to have sex with the duke three times when she was 17. He denies all the claims and says he has “no recollection” of meeting her.
The criminal investigation
The duke is represented by Gary Bloxsome, a solicitor-advocate and partner at the law firm Blackfords, which is based in central London with offices in Cardiff and two London suburbs. Blackfords specialises in dispute resolution and Bloxsome is a highly experienced criminal specialist who has acted in a number of international investigations.
The Telegraph disclosed last year that Bloxsome has retained Clare Montgomery QC, whom it accurately described as the leading expert on extradition law and “the most formidable member of the bar”.
The lawyers were instructed after the FBI began investigating Prince Andrew’s friendship with the convicted paedophile Jeffrey Epstein. Bloxsome’s approach, initially at least, was to provide “zero co-operation” with the US criminal investigation. Even though the duke had said in his ill-judged BBC interview that he was “willing to help any appropriate law enforcement agency”, nobody can fault Bloxsome if he advised his client not to volunteer information that could be used against him in a criminal prosecution.
The civil claim
The civil claim filed in the US district court for the southern district of New York on 9 August is very different. Virginia L Giuffre is the “plaintiff”, or complainant — “claimant” is the term used in England and Wales. Prince Andrew, Duke of York, is the defendant.
Two “causes of action” — legal grounds — are listed in Giuffre’s 15-page complaint:
intentional infliction of emotional distress.
It’s alleged that:
Prince Andrew committed sexual assault and battery upon plaintiff when she was 17 years old. As such, Prince Andrew is responsible for battery and intentional infliction of emotional distress pursuant to New York common law. The damage to plaintiff has been severe and lasting.
Giuffre is seeking “compensatory, consequential, exemplary, and punitive damages” — and costs, of course.
The document I am quoting from — the claim form or particulars of claim, as we would describe it — was widely published online almost as soon as it was filed. And yet the duke’s lawyers are still arguing about whether it has been properly “served” on him.
Newspaper readers have been bemused by references to the Queen’s Remembrancer (a senior judicial officer of the High Court whose post was established in 1154) and the Hague service convention (the convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters).
But it’s really very simple:
If somebody brings a civil claim against you, the court will ask you to confirm that you have received the documents that summarise the claim.
If you ignore that request, the claimant will have to satisfy the court that the claim documents have reached you. There are various ways in which that can be done.
Once the court is satisfied that you have received the documents, the case can proceed.
If you continue to ignore the claim, the court may conclude that you have no defence and decide the case against you without further notice.
What legal advice might you receive if someone is seeking to serve a civil claim on you? There are two options:
Your lawyers tell the claimant that they have instructions to accept service. The documents are then sent direct to the lawyers. Nobody has to knock on your door or leave an envelope with your security team. There’s no publicity and no money has to be spent on what is normally just a formality — money that the eventual loser will probably have to pay.
Your lawyers put up a fight. Even though they may have seen the court papers, they maintain that the documents have not been properly served on you, the defendant. Litigation lawyers, though perfectly charming in real life, can be staggeringly aggressive in these circumstances. By making things as difficult as possible for the other side, they are fighting the first round in a battle to ensure that any settlement will be as favourable as possible for their client.
Readers will recognise that the duke’s lawyers have chosen the second option. That might have been the right advice until last Monday. But the judge managing the claim saw through it immediately:
The duke was represented at the short hearing by Andrew Brettler, a Los Angeles-based attorney known for representing Hollywood luminaries accused of sexual misconduct. He was brought in at the last moment, presumably by Bloxsome.
“Regardless of whether your client has been served effectively to date,” District Judge Lewis Kaplan told Brettler, “you have a pretty high degree of certainty that he can be served sooner than later.”
Again, it’s very simple. If a defendant is not represented at a hearing, the judge cannot be sure whether that person has received the court papers. But if the defendant has sent a lawyer, then the court is likely to be satisfied that the papers have been effectively served on the defendant once they have been delivered to that lawyer.
If the parties are still arguing about service by the time of the next hearing in October, the federal judge is likely to rule that the papers have been served. Kaplan can do so regardless of any proceedings in the courts of England and Wales.
Brettler may well have decided that he does not want to show any sign of weakness to David Boies, Guiffre’s lawyer. That may play well in the US. But it does not look good in the UK. Hence the concern at Buckingham Palace.
There is no doubt that the duke will have to settle Giuffre’s claim at some point in the future. He cannot risk travelling to New York and giving evidence in his defence. That evidence could presumably assist the FBI in their criminal investigations. Visiting the US might even expose the duke to the risk of arrest once he has completed his evidence.
Nor can he defend the case adequately if he does not take the stand, as they say in the US. Giuffre has asked for a jury trial. Giving evidence remotely or on video would not look good, even if the judge allowed it. Relying on a written defence would be even less likely to persuade a jury.
Settlement of the claim will involve payment of damages, plus costs. No doubt Giuffre will want the duke to make a public apology.
And that, of course, is where the interests of Giuffre and Buckingham Palace coincide. As the palace source says, what’s happened over the past few weeks “adds to impression [that] the duke has something to hide”. In the absence of any plausible explanation for the photograph I have republished or for the duke’s admitted friendship with Epstein, public opinion is against Prince Andrew. Little wonder that the palace is worried about reputational damage.
The way forward is clear. Bloxsome and Brettler should stop arguing about service of proceedings and start negotiating a deal. If that’s not their style, the duke should replace either or both of them with lawyers who can bring this episode quickly to a close.
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Great analysis, as always. I've got into the habit of trying to figure these matters out for myself, and then reading what the reality might be. I did OK on this particular one!
Is it possible that, despite the information in the public domain, there could be settlement negotiations in the background hidden from public view? And the Duke would be well advised to include a non disclosure clause in the settlement. It’s reasonable to presume all that is in progress, because we all know that it’s cheaper to settle, and the risk of fighting and losing is substantial, despite the truth. If it’s not in progress, then something could be amiss.