No comfort for the duke

Giuffre’s claim goes ahead — but where will it end?

Prince Andrew and his lawyers will be disappointed by the ruling delivered in New York today by Judge Lewis Kaplan. But they are not likely to be very surprised.

The Duke of York wanted the judge to dismiss a civil claim brought against him by Virginia Giuffre before it went to trial. Giuffre’s claim is based on two torts, or civil wrongs: battery — which may mean no more than touching — and intentional infliction of emotional distress.

Summing Giuffre’s claims up, the judge said “she alleges that the late Jeffrey Epstein and others trafficked her to Prince Andrew who took advantage of the situation by sexually abusing her when she was under the age of 18”.

Prince Andrew with Virgina Giuffre (then Roberts) in 2001. Ghislaine Maxwell is behind them

The duke denies Giuffe’s allegations and attacks both her credibility and her motives, Kaplan added. “He asserts that she was complicit in Epstein’s unlawful activities.”

But Kaplan was not being asked to decide at the hearing last week whether Giuffre’s allegations were true. This was simply a claim by the duke’s lawyers that her complaint was “legally insufficient”. For reasons he gave in a 46-page judgment, the judge dismissed that claim in its entirety.

As he explained:

The fact that the defendant has brought the matter before the court on a motion to dismiss the complaint as legally insufficient is of central importance. As is well known to lawyers but perhaps not to the lay public, the defendant — by making this motion — placed on the court the unyielding duty to assume — for the purpose of this motion only — the truth of all [Giuffre’s] allegations and to draw in [her] favour all inferences that reasonably may be drawn from those allegations.

In consequence, the law prohibits the court from considering at this stage of the proceedings [Prince Andrew’s] efforts to cast doubt on the truth of Ms Giuffre’s allegations, even though his efforts would be permissible at a trial.

In similar vein and for similar reasons, it is not open to the court now to decide, as a matter of a fact, just what the parties to the… 2009 settlement… actually meant.

The Giuffre/Epstein deal

Kaplan was referring to a deal signed by Giuffre and Epstein. Prince Andrew claimed he could take advantage of it as a third-party beneficiary. That raised two questions: did the wording unambiguously refer to Prince Andrew and was he entitled to make use of the settlement?

But, said the judge, the agreement was:

far from a model of clear and precise drafting. Both sides agree that Epstein and Ms Giuffre agreed to its language. It must have meant something to them. But Ms Giuffre and the defendant in this case disagree emphatically as to what it means with respect to both issues.

It was not Kaplan’s job at this stage to decide what the agreement meant. All the court had to do was to decide whether there were two or more reasonable interpretations of it. Because there were, a decision on its correct interpretation had to wait for further proceedings.

Was Andrew a third-party beneficiary?

Even if Prince Andrew was covered by the deal, he might still not be able to take advantage of it. Whatever it was intended to mean, said the judge, it was “riddled with drafting problems and ambiguities”. The agreement was made under the laws of Florida. But the law of that state did not allow the judge to “rewrite the 2009 agreement to give the defendant rights where the agreement does not clearly manifest an intent to create them”.

Other grounds for dismissal

Prince Andrew’s lawyer argued that the court should dismiss Giuffre’s claims for battery and intentional infliction of emotional distress on the ground that she had not alleged, adequately, any violation of the New York penal code.

That seems strange, at first sight. What has the criminal law got to do with civil claims?

The duke argued that Giuffre’s claims would have been time-barred — brought too late — if it had not been for the New York Child Victims Act. And that legislation had revived child sex abuse claims that were “tied to an alleged violation of New York criminal law”.

But, said Kaplan, the Child Victims Act did not create a cause of action — grounds for a civil claim. All Giuffre had to do at this stage was to put forward facts sufficient to allege battery and inflicting distress. And she had done so:

The allegation that [she] was forced to sit on Prince Andrew’s lap while he touched her is sufficient to state a battery claim under New York law, regardless of which part(s) of her body [he] ultimately is alleged to have touched…

[Giuffre] has alleged severe emotional distress. She alleges that it was a “direct and proximate result of Prince Andrew’s criminal acts”.

He could still argue at a future hearing that her claims were brought too late. But the hurdles set by the Child Victim Act were not relevant to a claim for dismissal at this stage.

The duke’s lawyers also argued that the claim for emotional distress simply duplicated the battery claim. It did not, Kaplan decided. If she proved both claims, a reasonable jury could “return a damages award on emotional distress that is over and above what it might award on battery”.

The duke’s next ground was that the Child Victims Act’s extension of time limits for civil claims was unconstitutional. But, said the judge, he was “not the first litigant to advance this argument”. It had been “rejected by every New York State and federal court to have encountered it… With or without a global pandemic, New York’s modest two-year revival window was a reasonable measure for remedying injustice to victims without treading on the state constitution’s due process clause.”

As another judge had said of another case, the duke’s argument on constitutionality was creative but without merit. So was his last argument: that Giuffre’s allegations, as currently put, were too vague.

Kaplan dismissed the duke’s request “in all respects”. But, he added:

Given the court’s limited task of ruling on this motion, nothing in this opinion or previously in these proceedings properly may be construed as indicating a view with respect to the truth of the charges or countercharges or as to the intention of the parties in entering into the 2009 agreement.

What next?

In one sense, there is all to play for. Prince Andrew’s lawyers can still rely on the 2009 agreement at a full hearing expected in September. But, given all the flaws picked up by the judge, they may think this argument is not going to get off the ground.

And, of course, the case may never get that far. A civil claim can be settled by agreement at any time: all it needs is money. I have always thought that this was the most likely outcome.

The chances are, though, that a deal will not be agreed until after the discovery process, when both sides have to provide written evidence to each other. Prince Andrew’s team will want proof that Giuffre, who lives in Australia, is entitled to sue in New York. Her team will want evidence to back up the claims made by the duke in his notorious Newsnight interview — that he was at the Woking Pizza Express when he was said to have been dancing with Giuffre at a nightclub and that he had a medical condition which prevented him sweating. Disclosure of evidence should give the two sides an idea of each other’s strengths and weaknesses.

Next would be the depositions stage, where witnesses give recorded oral evidence to lawyers. And finally there would be a hearing in New York, at which the duke would need to give live evidence if he was to have any hope of persuading a jury.

That’s something Andrew would presumably give a great deal to avoid. Quite how much remains to be seen.