5th January 2022
A happy new year to all the readers of this law and policy blog, and welcome back.
Today’s post is about civil law – that is the law which (broadly) deals with the legal obligations we owe to each other, as opposed to criminal law which (broadly) deals with the obligations we have to the state.
In essence: in civil law you can sue or be sued, and in criminal law you can be prosecuted or not prosecuted.
Civil law – especially contract law – is fascinating, and this post takes a topical legal agreement as the basis for explaining about civil law generally and contract law in particular.
*
The topical legal agreement is the recently disclosed settlement agreement between Virginia Giuffre and the now dead Jeffrey Epstein, on which (Prince) Andrew is currently seeking to rely in American litigation.
I have chosen this as a topic because it is rare for the substance of any legal agreement to be newsworthy – and legal commentators have to take our examples as we find them.
I have no view on the underlying litigation as I do not know the facts – and I have no particular view on Andrew other than a general preference for republican government and a disdain for inherited titles.
My sole purpose in this post is to use a topical legal agreement for promoting the public understanding of law.
(By way of background, I am not an American lawyer, but an English lawyer with experience of contracts and civil litigation who has spent part of their career dealing with American contracts and civil litigation, and this post draws on principles I believe are common to English and American contract law.)
*
Let’s start by looking at the agreement – click and open tab here.
It is, in essence, a seven-page agreement – and so pages 2 to 8 of the pdf are the ones to focus on.
*
A preliminary question is how seriously we should take the agreement as something agreed to by both Epstein and Giuffre – was it a one-sided imposition, or something freely negotiated with both sides getting legal advice?
Clause 9(c) tells us ‘This Settlement Agreement was negotiated and entered into by the Parties with the advice and assistance of respective counsel.’
This means that it is not, say, a standard form contract – but one which has been negotiated by lawyers with each party having legal advice (and the lawyers are even listed at the end of the document).
This in turn means a court will take seriously what was agreed, and it will seek to give effect to what was agreed between the legally advised parties.
This is reinforced by clause 9(a), which provides that the parties ‘confirm and acknowledge that this Settlement Agreement is being entered into without any duress or undue influence, and that they have had a full and complete opportunity to discuss the terms of the Settlement Agreement with their own attorneys.’
Of course, such a provision can – in principle – be disapplied if it is factually untrue and there was actual duress.
On the face of it, this was not an agreement imposed by one party on the other, but one which was negotiated by both parties with the benefit of legal advice.
So, again on the face of it, this is an agreement by which both Epstein and Giuffre intended to be bound.
*
With that preliminary question addressed, we come to the first big question.
What was the purpose of the agreement?
This is what can be called a question of construction – putting together the agreement as a whole so that we can then, as the next stage, interpret any constituent part.
With any legal instrument, and especially contracts, construction precedes interpretation.
Here there is a clue to the purpose in the title: Settlement Agreement and General Release.
This title indicates the agreement is doing two things – and you will see that these two things are, in turn, set out respectively in clauses 1 and 2.
But before we get to clauses 1 and 2 we can also see, almost as a recital, that the parties Giuffre and Epstein both entered the agreement so as to ‘resolve the pending litigation’ between them.
This litigation is then set out in clause 1: the parties agree to dismiss a civil claim brought by Giuffre against Epstein in the Florida courts.
But clause 1 only covers part of what was agreed.
For clause 2 then sets out the General Release.
This further provision sets out a more general release than ending one particular case.
Here Giuffre accepts a substantial sum (US$500,000) – as opposed to say a nominal sum – in return for the release.
In respect of Epstein the release provides that Giuffre shall ‘remise, release, acquit, satisfy, and forever discharge [Epstein][…] from all, and all manner of, action and actions of [Guiffre] , including State or Federal, cause and causes of action (common law or statutory), suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever in law or in equity for compensatory or punitive damages that [Giuffre] ever had or now have, or that any personal representative, successor, heir, or assign of [Giuffre] hereafter can, shall, or may have, against Jeffrey Epstein […] for, upon, or by reason of any matter, cause, or thing whatsoever (whether known or unknown), from the beginning of the world to the day of this release.’
This is a comprehensive list of things for which Giuffre agrees she cannot now sue Epstein.
Epstein was not only released from the current case but other cases, State and Federal.
If Giuffre was ever to litigate against Epstein again, then Epstein’s lawyers would have sought to rely on this release and have the case thrown out.
*
But.
The release is not just in respect of Epstein, but also for other persons.
I will now quote the provision again but with what I had omitted now in bold:
Giuffre shall ‘remise, release, acquit, satisfy, and forever discharge [Epstein] and any other person or entity who could have been included as a potential defendant (“Other Potential Defendants”) from all, and all manner of, action and actions of [Guiffre] , including State or Federal, cause and causes of action (common law or statutory), suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever in law or in equity for compensatory or punitive damages that [Giuffre] ever had or now have, or that any personal representative, successor, heir, or assign of [Giuffre] hereafter can, shall, or may have, against Jeffrey Epstein, or Other Potential Defendants for, upon, or by reason of any matter, cause, or thing whatsoever (whether known or unknown), from the beginning of the world to the day of this release.’
These provisions in bold purport to extend the General Release granted to Epstein to other persons or entities – to give them exactly the same protection from further state and federal lawsuits as Epstein.
The term in bold, however, is not clearly drafted.
One reading is that the Other Potential Defendants are those who, on the facts alleged in the Florida litigation, could have been added as defendants to that litigation.
This would perhaps make sense as a matter of construction, as this agreement settles the case in respect of civil wrongs – torts – alleged to have happened in respect of which the Florida court had or has jurisdiction.
This reading is reinforced by the provision in clause 1 that the Court will be asked to retain jurisdiction to enforce the terms of this settlement agreement.
Clause 7 expressly provides that the parties envisaged this matter also capable of being litigated in federal courts (bold added):
‘In the event of litigation arising out of a dispute over the interpretation of this Settlement Agreement, the prevailing party shall be entitled to recover its cost of litigation, including attorneys’ fees and other reasonable costs of litigation. Should the federal court not retain jurisdiction, the Parties (and any third party) agree that the courts of the 15™ Judicial Circuit of Palm Beach County shall have exclusive jurisdiction over the subject matter and shall have personal jurisdiction over the Parties (and third parties).’
What the agreement does not seem to envisage, however, is the matter being litigated in another state, other than Florida.
*
In my view, the General Release probably should be constructed as providing protection to Other Potential Defendants in respect of the issues raised in the Florida proceedings.
(This narrow construction would be notwithstanding the General Release is in more general terms than the dismissal in clause 1.)
So, if Andrew – by reasons of residence/jurisdiction, or the facts alleged by Giuffre in the Florida case – was not capable of being a defendant to the Florida proceedings then – as a matter of construction – then it is difficult for me to see how he can take the benefit of the General Release.
The agreement would not have been for him.
In essence: if Andrew could not have been jointly or separately liable for the tort claim within the Florida jurisdiction then the General Release may not apply.
That said: a judge could take a wider view of what the General Release covers, and that it covers not just the Florida allegations.
*
There is, however, a possible problem here for Giuffre’s lawyers – for the term Other Potential Defendants must mean something.
The term Other Potential Defendants cannot mean nothing – for this is a negotiated and formal agreement, and the presumption is against surplusage.
If Giuffre’s lawyers contend that the General Release does not extend to Andrew, they must be able to explain who actually was to be covered by by the term Other Potential Defendants.
What Giuffre’s lawyers need to be able to do is to show who would be in the class of Other Potential Defendants – if not Andrew.
And if they can give a plausible meaning to that phrase without it including Andrew then they will address this problem.
*
Now we turn to interpretation, as opposed to construction.
Some commentators, with little or no background in contract law, have gone straight to the term Other Potential Defendants and speculated what that phrase could mean.
But a clause is not a legal instrument, and still less a selected quote from a clause.
Yes, Andrew – like you reading this – is a potential defendant: indeed everyone other than Giuffre is.
But a settlement and a General Release in respect of a Florida case is unlikely to create a legal basis of releasing all potential defendants everywhere in the world in respect of any claim brought by Giuffre about anything – not least because the Florida court would not have jurisdiction to enforce such a general release.
In whatever way Other Potential Defendants is to be interpreted as including and not including, it is not an exercise in anything goes.
Other Potential Defendants cannot be interpreted as including Andrew if, as a matter of construction, the agreement would not apply to him.
On the other hand, if Andrew could plausibly have been added as a defendant to the original Florida case, then the phrase can be interpreted so as to include him.
*
But.
Even if the agreement can be constructed so as to cover Andrew and the phrase Other Potential Defendant interpreted as including him, there are two further problems for his lawyers.
The first is that, whatever is said on the face of the agreement, there can be rules of law and public policy that may preclude reliance on such an agreement by a defendant in another case in another state.
The essence of Andrew’s objection is that Giuffre should not be allowed to sue him for alleged civil wrongs – that she should not even have access to a court for a determination of her case.
No court will simply nod-along with such a contention – it is a serious matter to remove a person’s right of access to a court.
And so even if Andrew can be brought within the terms of the General Release, a judge may find as a matter of policy that the claim brought by Giuffre should be heard anyway.
A court, of course, would not be likely to do this if the claim was brought against Epstein (or his estate), as he was full square within the terms of the General Release.
But Andrew is at least one step away.
The second further problem is that, even if the agreement can be constructed as to cover Andrew and the phrase Other Potential Defendant interpreted as including him, it may not be legally open to Andrew directly to enforce the provision.
Andrew was not privy – that is, a party – to the original agreement (and, indeed, he is not even named).
This legal principle of privity of contract prevents a stranger to a contract either taking the benefit or bearing the burden of an agreement to which they are not a party.
In essence: it would have been for Epstein (or his estate?) to enforce the term protecting Other Potential Defendants, and not Andrew or another potential defendant directly.
*
For completeness, you will see the agreement also provides the following:
‘It is further agreed that this Settlement Agreement represents a final resolution of a disputed claim and is intended to avoid litigation. This Settlement Agreement shall not be construed to be an admission of liability or fault by any party. Additionally, as a material consideration in settling, First Parties and Second Parties agree that the terms of this Settlement Agreement are not intended to be used by any other person nor be admissible in any proceeding or case against or involving Jeffrey Epstein, either civil or criminal.’
Some commentators have leapt on this provision, but I do not think it takes us in any direction very far (though the judge may disagree).
It is not Giuffre who is seeking to rely on the settlement agreement – but a third party.
And the terms are not being relied on by Andrew as admissible evidence of liability or otherwise, but on a question of law in respect of jurisdiction.
*
As I aver above, I am not an American lawyer, but an English lawyer with experience of contracts and civil litigation who has spent part of their career dealing with American contracts and civil litigation.
But even if this agreement were under English law, I could not confidently predict what a judge would do.
This is because the agreement – while clear in its primary aim of protecting Epstein from further suit – is not clear about third parties, and this is no doubt because that the position of third parties was not the main purpose of the agreement.
The agreement has been taken from its primary context of protecting Epstein and into a context which the parties perhaps did not envisage.
And so it is not a surprise that the agreement is less clear in this context.
Had the lawyers for the parties in this agreement expected this contract to be used by third parties, then the provisions in respect of third parties would be set out more clearly – but they did not, and so they are not.
*
We are currently awaiting the judge’s decision on whether Andrew can rely on this agreement.
In my view, Andrew’s lawyers have the far harder task.
They have to show that, as a matter of construction and interpretation, the General Release covers him when he is not named and is not a party to the agreement; that no rule of law and policy means he loses that protection; and that he can enforce the protection regardless of the lack of privity.
All this, so as to extinguish Giuffre’s right of access to the court, which no court will do lightly in any case.
Giuffre, in turn, only has to succeed on one of these points – though her lawyers will need to explain what Other Potential Defendants means if not the likes of Andrew.
And even if Andrew succeeds on this technical defense, Giuffre may still win on appeal.
In summary and in conclusion: Andrew’s lawyers should be prepared to defend the substantial claim, rather than to rely on this technical defense.
*****
Thank you for reading – and now please help this daily law and policy blog survive.
It needs your help to continue for another year – for the benefit of you and other readers – there is no paid subscription model.
Each free-to-read post takes time and opportunity cost.
This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.
If you value this free-to-read and independent legal and policy commentary – both for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.
*****
You can also have each post sent by email by filling in the box above (on an internet browser) or on a pulldown list (on mobile).
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
The best summary I have seen so far; thank you.
Two questions (from a position of ignorance re. American jurisprudence):
First, do you think the fact that Giuffre accepted a substantial payment rather than a nominal sum makes a difference in American Law? To any contract, not just this one – I had thought that consideration was still enough in America (i.e., the quantum is irrelevant) but perhaps it’s different there.
Secondly, do you know if there is a different interpretation of privity of contracts in America? There have been suggestions that Andrew has more third party rights there than he would have here, although, of course, those suggestions may have been from his lawyers.
Thank you again, for a brilliant post.
Very interesting. Of course, in England, privity was somewhat relaxed by the 1999 Act which followed on from a Law Comm. Report. In its consultation paper (No.121) the Law Comm. referred to the US relaxation of privity in favour of third parties dating back to a NY decision in the case of, I kid you not, Lawrence v Fox (1859).
Thank you for, as always, an interesting blog post.
One question I had while reading your analysis is, how were Andrew and his lawyers aware of the details of the settlement agreement? Is there a mechanism other than Epstein sharing the information with third parties (e.g. back when the settlement was agreed)? I assume that if they were only aware of the existence of the settlement agreement, asking for it to be unsealed would have been a huge risk.
It would appear they did not know of this before the current claim
For privity US law, see
https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4291&context=clr
That’s really helpful; thank you.
“The cat is absolved of drinking the milk, and so to the dog (who may or may not have also done so”)
Any agreement, which is ambiguous, imprecise and indistinct (essentially using ‘catch-all’ phraseology), cannot be considered ‘legal’.
The very fact that it needs interpretation is indicative that it was all that and more.
‘Words’, in any arrangement, can do anything. The ‘law’ should exist to ensure the words do the ‘right’ thing.
Laws call for precision. Otherwise, why bother to make any.
It will ultimately rest with the judge’s interpretation (and/or any subsequent contrary appeal). There will be dissenters, whichever way it falls.
Whatever the outcome, the final decision will set a precedent and become enshrined in law in principle for everyone (until the next time it is challenged or used in litigation).
For me, the agreement is too ‘all encompassing’ and too remote from Andrew to absolve him of being scrutinized for his own conduct; the case was about Epstein. The agreement and settlement should of been also.
On a wider note: For God’s sake, has the World got nothing better to do than waste its time on this matter?
So what if Andrew is guilty? What jot of difference does it matter to decent people struggling to get by in life, and battling their own, much more significant and relevant injustices!?
Thank you very much DAG. Happy New Year, and it is good to be able to read you again.
One thought. In order for Andrew Windsor to have been a “potential defendant”, does there need to be an admission that there would be substantive grounds for him to have been in that position? In other words, is his legal team effectively having to admit liability but declare that notwithstanding him having committed a tort, he is covered by the settlement agreed by his chum, and hence Guiffre has already had her payment in lieu of damages?
That is certainly how any such “victory” for Windsor will appear.
Does this whole case not typify the fact that those with money can simply ‘buy off’ their wrong-doing?
And those who haven’t the funds can’t?
Is this not a much bigger and important debate that any decent society should be focused on (ie inequality)?
For John Brick – Your being appalled is justified and fully shared. Yet, the brute facts confirm – as no doubt you are aware – that all humans are equal but some are more equal than others.
This care is about money: Giuffre is suing Andrew for monetary damages. So it doesn’t seem outrageous that she could have given up the right to sue him in exchange for a large sum of money.
Indeed. As DAG says at the start, this is a civil case, not a criminal case. Epstein didn’t ‘get off’ or ‘get away with it’ — he paid a sum of money, just as anyone who settles a civil dispute or who loses in Court must do.
A civil lawsuit such as this is not so unusual where pursuing criminal charges is difficult or impossible due to, for example, a statute of limitations or geography-related legal constraints. I suspect Ms Giuffre, in common with most other victims, would far prefer to see all such abusers behind bars for a very long time.
It seems to me that this is a risk for the Prince. He is (almost) saying ‘hey, look at me, I did stuff like that with her so I am a potential defendant too!’. Surely in order to be a potential defendant he has to have put himself, before the date of the agreement, in such a position. So it makes not sense for him to claim this privilege of immunity if there not any truth in the underlying accusation.
Admitting that one is a “potential defendant” – or indeed even an actual defendant – surely cannot be construed as admitting liability. Otherwise there would be no point to the courts – we’d effectively be in a “guilty until proven innocent” situation.
I would imagine that the legal approach here would be to say, “Virginia Guiffre is attempting to sue our client for actions which he strenuously denies. By doing so, she (not he) has placed him into the category of ‘potential defendant’, which therefore means that he is covered by the earlier settlement”.
I agree entirely that this is not how this will be perceived should his legal approach succeed.
What about the context of the original 2011 Florida civil case (Jane Doe 102 vs Epstein IIRC) in which the allegations being settled included that:
“In addition to being continually exploited to satisfy the defendant’s every sexual whim, Plaintiff was also required to be sexually exploited by defendant’s adult male peers, including royalty, politicians, academicians, businessmen and/or other professional and personal acquaintances.”
That would seem to me to identify the ‘potential defendants’ being referred to in the settlement agreement?
Now, whether Andrew was the member of royalty being referred to in those original allegations (for which she accepted the settlement agreement and terms) may be a question of fact – but unless they can identify someone else then there must be at least an inference that the Florida case settlement did indeed refer to the abuse she claims to have suffered from being (and I wish I could think of a better phrase) ‘lent out’ by Epstein?
I wondered about this also but because the settlement appears to refer to Ms Roberts / Guiffre having been trafficked (by Epstein et al) which is not what Andrew is accused of in the current lawsuit.
Really? Line one of the factual allegations in her complaint is “ Epstein’s Sex Trafficking Enterprise” and the allegations against Andrew include:
43. Prince Andrew engaged in each of the aforementioned sexual acts with Plaintiff at Epstein and Maxwell’s invitation, knowing that she was a sex-trafficking victim being forced to engage in sexual acts with him.
So it seems impossible to say that the allegations against Andrew are not tied in with the trafficking she alleges by Epstein & Maxwell
Thanks – great summary.
Not a legal point, but I wonder how much Andrew winning this case would really help him in the long term.
True, the case would be dismissed, but he will be left as a person who dodged an accusation of sexually assaulting a trafficked child on the basis of a technicality. He would be benefiting from the wealth and litigiousness of a convicted paedophile (Epstein). Hardly an edifying prospect.
If the substantive case against Andrew is as weak as he contends, would he be better to have it out in court?
If he wins, there is no way back for him – the stink will endure for the rest of his life.
This is true. But the photo of him with his hand on the waist of a 17 year old Roberts and Ghislaine Maxwell has already done this in the court of public opinion.
This was an excellent post, if that needs to be said.
It would help Andrew in the negative sense that it would stop further damaging revelations arising from this particular case.
I suggest that the “other potential defendants” were intended to be Ghislaine Maxwell plus any of the girls who, having been groomed, sought out further underage victims for Epstein’s pleasure. I can’t see how they would include friends of Epstein who would have assumed that the activities were consensual.
As per a comment I posted above – her complaint against Andrew stipulates belief that:
43. Prince Andrew engaged in each of the aforementioned sexual acts with Plaintiff at Epstein and Maxwell’s invitation, knowing that she was a sex-trafficking victim being forced to engage in sexual acts with him.
You make a good point. But what if Andrew wasn’t a potential defendant back then because she had insufficient evidence about his knowledge of the trafficking? And since then, more evidence including evidence from Maxwell’s trial, has perhaps strengthened the case against him? Maybe it depends on how you define the woolly phrase “potential defendant”. If you slip on dog poo in the street, you might regard all dog owners in the neighbourhood as potential defendants. But you would be rash to sue them all.
Epstein paid some money to avoid litigation.
On receiving money, the accuser agreed that it was not an admission of guilt, to get the money. It clearly was or why pay-up.
Maxwell (Epstein’s accomplice? The lesser of two evils?) didn’t pay any money, so faced the courts and was found guilty. Accordingly, Epstein would have been found guilty.
So too likely anyone else associated with the conduct of (knowingly) advantaging themselves as a result of the wrongdoing.
The accuser seemingly agreed to excuse anyone else of their wrongdoing, to get the money.
So money buys off wrong-doing.
I thought child trafficking (and essentially underage prostitution) was illegal. So where are the police in all this?
Or is it, as appears, that those in positions of power and wealth (same thing) can be exempt from the law if have deep enough pockets? (Remember the phrase: “No-one is beyond the law” (except those who are powerful enough to be exempt))
The truth is that this is how the (corrupt) world is run. And guess who pays for it all really – those who can’t afford to.
And just to show I have no vested interest in this matter either way, why is Ms Roberts seeking the action against Andrew Windsor?
Because he has money, position, and power (hereditary) and she got a wad off Epstein, so why not have another go with someone else.
And if she secures a pay-out (by agreeing to anything in a settlement agreement to get it, and which is then hidden from public view), so what and who next. (You know who will ultimately make Andrew Windsor payout, don’t you?)
It appears that Epstein was the likely ‘supplier’ for several wealthy and powerful – possibly including high-flying judges and politicians. There is doubtless much more juice in this particular orange for those who want to squeeze it.
The world is run by the few for the benefit of the few.
Semblances of justice are merely ‘token gestures’ to keep a cap on it, so the public doesn’t revolt too much, not that there is anything they can do about it if they did, and most won’t – they are too tied up in mortgages and providing for their families and, often, fighting against financial constraints and strangleholds. That is how the system is controlled.
I have suffered severe injustice, facing £1/3m costs for trying to prevent fraud as executor in my late uncle’s estate and in a case riddled with Freemasonry and corruption.
But I am not royalty, not wealthy or in a position of power so no-one is interested in what has happened to me, and which could happen to anyone in similar position.
Frankly, I think the ‘Windsor case’ outcome will depend on whether the judge thinks a ‘disadvantaged’ position will arise to the ‘great and the good’, who may subsequently be implicated if he judges Andrew should face litigation.
The conclusion may therefore be obvious, with just a public ‘play-out’ in an open arena, to pretend that justice has been done. (I was a victim of the same in the UK)
I tend to agree with this analysis and share the view that at the same time it is difficult to predict with confidence the way a judge may go. It seems to me that the key bit is possibly this:
“In my view, the General Release probably should be constructed as providing protection to Other Potential Defendants in respect of the issues raised in the Florida proceedings.”
It seems unlikely to me that the parties to the agreement intended that this arrangement should release unilaterally all potential defendants (including those unaware of the agreement) in all possible cases with a link to Epstein pursued anywhere in the world. That would seem too much of a stretch and implies an attitude to extra-territorriality at which even the US courts might baulk. So the release must be narrower than that and, once you start to think what makes for a sensible narrower release, you quickly run into the likely purpose of the release from Epstein’s perspective – to ensure that he will not get drawn in to other people’s litigation. Epstein would use the agreement to resist being joined in other actions and not so as to stop those actions commencing per se. He would be protecting what was left of his reputation – possibly threatening to disrupt those actions but mostly wishing to keep himself distant from them. Prince Andrew needs the release to be wide; much wider than this construction allows.
Of course, the Epstein agreement was a sham and insult to justice generally, and thereby the public.
What Epstein did was criminal (as Maxwell subsequent case has shown, as affording assistance in his crime)
But, for money, his accuser agreed to essentially ‘write off’ any criminal conduct by anyone and, seemingly, everyone else who could have also been guilty of any associated crimes (unnamed potential defendants).
The agreement was then ‘sealed’ ie hidden from the public. It has only come to light because of the latest allegations against Andrew Windsor – otherwise, no one would have known about this crooked deal.
Where were the alleged authorities, that taxpayers pay for in all this, to ensure that the standard of the law was upheld?
The answer is obvious. They didn’t give a damn about doing the job they are paid to do. This is the reality. This is about immorality, not just by Epstein, and his legal representatives, but by the courts themselves.
No matter what the outcome – and debate about legal niceties are irrelevant – it will only serve to perpetuate the hidden truth; corruption in almost all positions of power and authority is a fact of life, and there ain’t a damn thing anyone can do about it.
Thanks for this. I have a question about the issue of privity.
Suppose the Giuffre legal team accepts that Andrew is one of the “potential defendants”. Suppose also that they accept that suing him is also indeed a breach of the agreement between Giuffre and Epstein (perhaps in the assumption that the agreement is annulled given Epstein’s death). Does that breach necessarily have sufficient legal force as to invalidate the case against Andrew?
In other words, if I promise you that I won’t sue my neighbour, and then I break that promise and sue them anyway, that certainly affects our promise and I might expect retribution from you, but I don’t understand why (legally) it kills the case against my neighbour.
Great legal summary – many thanks. I’m looking at this as if I were advising Andrew. Devil’s advocate/spinner and all that.
It’s a serious tactical error to have tried relying on half a million dollars of Epstein’s money to prevent this case coming to court. If Andrew wins this case the combination of that endlessly published photo plus blocking Guiffre’s court action purely on a legal technicality means he’s utterly finished.
Andrew needs to shut this down right now by paying Guiffre whatever she wants (It’s only UK public money after all). A seven figure £ sum should do it. No admission of liability, no comment from either side on the facts of the case and an explanation along the lines of “the only reason I’m doing this is to protect the reputation of the monarchy yada yada.” Then disappear into a well funded, quiet retirement. The alternative – night after night of top story on the BBC Ten and damning front pages and the horrific prospect of losing the case isn’t worth contemplating.
I have no idea if the allegations are true. But if he had a credible defence to the claim with alibis and witnesses – and he has a well resourced PR machine, expensive lawyers and sympathetic papers to hand – we would have heard it by now rather than that Newsnight farce. Time to pay your Highness.
I think you are right, commercially and rationally (though, as you know, not morally)
Damage limitation to Andrew and the ‘Firm’, would be the priority – not extensive cash sum payouts, as may constrain you or me (for the reasons you state – it’s going to be our dosh anyhow (I can be quite generous with other people’s money))
I suspect this will be Plan B if the technicality get-out fails.
At the moment, trying to save face, but I think even the process is backfiring, as to public opinion.
However, any deal will be sealed, and no one will know what it says or how much agreed or what for.
Technically, this will be a stain that Andrew will always have but, living in opulence with all the money he needs, associating with his own kind, will likely soften the blow.
But many establishment figures wallow in undeserved congratulatory praise to serve as ego-boosters (whether or not just the smug satisfaction that they have conned the masses)
Accordingly, in the circles that AW populates however, I doubt it matters much what he has done, or got away with doing (apart from the Firm, who want to portray sweetness and light to a naive public, irrespective of what it is like in reality).
The public would never get a say on what he does or has, so frankly it doesn’t matter a jot what they think. (Just keep paying your taxes)
The queen has plenty of money of her own, wealthiest woman in the world I have heard her described. She can pay off this lady without even glancing at the public purse. It doesn’t wash that any payment will come out of the public purse. I understand she is paying all Andrews legal fees, as she should.
And where did the Queen get all her money and wealth from……..
Agree. (And applaud the clarity of DAG’s explication.) Only speculation, but from the US, as set out here there it appears there are simply too many inferences that must-strongly-align, and the failure of any one of them means this gambit fails. Thus, it feels rather more like what is known here as a “Hail Mary” tactic. Given the legal firepower the defendant had, it is at least reasonable to infer that had this Release meant anything akin to what is claimed, it would have been drafted rather more broadly. As a simple example, it would seem to me rather telling as against the purported construction that the Release’s language is “Other Potential Defendants” rather than, for an offhand example, “any person named, referenced or otherwise identified in this or any action arising out of the same or substantially similar acts anywhere at any time”. Note that as the party now seeking to invoke the Release as a bar had apparently been named in the action (though not as a defendant) it would cause no additional injury to refer to them in some such fashion. The greater speculative issue, to me, is what is the reasoning behind making a flimsy claim in such a self-damning manner?
“Andrew needs to shut this down right now by paying Guiffre whatever she wants (It’s only UK public money after all). A seven figure £ sum should do it.”
1) Andrew probably can’t outbid whatever Guiffre can earn via (or from) the media.
2) Guiffre’s team probably have other more valuable skittles lined up to aim at after Andrew, and they become easier to access after dealing with Andrew in court rather than in silence.
3) Other ladies may also have other actions, perhaps against other men, and again this may just be another of the opening shots in a wider campaign.
Looks like a payoff may be coming. I’ll send my bill for advice to the Palace. :-)
https://www.telegraph.co.uk/news/2022/01/06/prince-andrew-has-not-ruled-pay-off-virginia-roberts-giuffre/?li_source=LI&li_medium=liftigniter-rhr
An incredible amount of effort! Thanks, David.
Looking at (what I’m told is) the original claim (potentially dodgy link here https://www.yumpu.com/ro/document/view/17244579/complaint-jane-doe-102-v-jeffrey-epstein ), lawyers for Roberts stated Florida has jurisdiction because of 28 USC 1391 (b) (i.e Defendant’s domicile/ place where substantial part of acts occurred).. Maxwell and other “assistants” referenced might well fall into the definition of Other Potential Defendants, but Andrew Windsor might not.
I’d say the other potential pool mentioned is “adult male peers”. Jurisdiction issues aside, that’s a wide old pool, isn’t it!
Thanks again for all your work.
Thank you for the insightful post. Have you written about the potential obligation – or lack thereof – of the Metropolitan Police and/or Crown Prosecution Service to investigate this case? An allegation of a serious crime on UK soil has been made, yet the public discussion only revolves around this civil lawsuit.
A point similar to one I have made about this allegation.
Involvement in people trafficking/underage sex is surely a criminal offense.
A rational explanation as to what, if anything is/has been done about this by the UK Authorities would be useful.
Or is it just about how the ‘establishment’ operates, with some people being exempt from the usual process?
To a non-lawyer, that raises the question whether this “denial of justice” — which is not an argument about the merits of the case but the potential refusal of the relevant justice system to investigate the crime — can be construed as a reason for the US case to go ahead. Of course, the situation would be entirely different if the matter had been investigated and the allegations had been found to be without merit — which hasn’t happened to my knowledge.
And maybe that is why the UK ‘establishment’ did not investigate, in case there was merit for the allegation against Andrew Windsor.
Of course, we all know that the ‘powers that be’ in UK can falsify any findings of fact, and so I guess that could have been done, and may have brought, at least criminal action to an end, and which may have supported his case in any subsequent civil action.
The whole thing would undoubtedly be rotten to the core, but is that not the modus operandi of the UK that we now have all become used to expecting anyway in reality?
To cut through the whole malaise of this particular case, ignoring the law (and which I have become used to seeing, when ‘privileged and connected’ parties are involved), either the US judge will find AW protected by the previous Epstein agreement, with thus no case to answer or, if in the alternative, the UK tax payer (albeit indirectly) will fork out a large sum of money for Ms Roberts (which clearly is her aim)
In any event, neither ‘justice’, nor any moral standards, nor the ‘public’ will be advanced one jot.
Just see if I’m not right about all this as things evolve to a conclusion.
Good point. Perhaps one to be saved for another post.
Thank you – would the outcome had been different if this had been brought prior to Epstein’s unveiling and conviction (whilst he was alive with reputation still in tact)?
Excellent article highlighting that the key factors appear to be Potential Defendants and Privity of Contract.
My twopence on the “Other potential defendants” issue:
The point of the contract is to end any legal entanglement between Ms Roberts and Epstein. My reading of “other potential defendants” in that context is other entities linked to or owned by Epstein. Being a dodgy billionaire, he’s likely to have complex financial arrangements, perhaps involving other legal entities like holding companies. I think the clause is intended to prevent her suing one of those entities (maybe in another jurisdiction) in the hope of another ‘bit of the cherry’…
The term “Potential Defendant” must be read to exclude any persons against whom a claim would have been time-barred at the time the settlement was signed in 2009. Since any claim against Prince Andrew would have been time-barred in 2009, he could not legally be included in any group of potential defendants. The subsequent amendment of the New York statute of limitations to permit Plaintiff’s action could not have been foreseen in 2009.
Hi, as you’re an English lawyer what do you think of this?
* In 2018 Stephen Borton and Justin Welby Archbishop of Canterbury issue a licence for Harry and Meghan’s wedding clearly stating that the law under which backyard royal weddings are legal applies. In 2005 Charlie Falconer acknowledged this to be the case.
* In 2021 Meghan reveals that Welby officiated at her backyard wedding. At the chapel three days later on 19 May 2018 Welby, knowing the ceremony to be a sham, did not ask for people to object or “forever hold your peace”. In March 2021 Borton and Welby accuse Harry and Meghan of not knowing the law and claim their backyard wedding was illegal. Welby’s signature on the certificate on 19 May was perjury. In November 2021 the Bishop of Chichester commences a cover-up investigation which is ongoing (the President of Tribunals, Dame Sarah Asplin, is informed in December). In May 2021 Boris Johnson says his wedding won’t be till next year. An illegal ceremony takes place on 29 May (it was private but the law requires it to be held “with open doors”). Amanda al-Salami, Registration and Ceremonies Officer at Westminster Register Office in Harrow Road refuses many requests for inspection of the notices of marriage filed by Boris and Caroline. The wedding was in Westminster Cathedral and is illegal if no superintendent registrar’s certificate is issued. This can only be issued following the filing of notice and it appears Amanda is covering up the fact that the couple didn’t bother to give notice. On 9 April 2005 Camilla and Charles go through an illegal register office marriage ceremony. It’s illegal because the law says civil marriage has not been extended to the royal family because there are ample alternative arrangements. Anonymous lawyers retained by Charles claim the Human Rights Court has overridden British law. Law professors publish papers saying this is nonsense. In 2020 the Court of Appeal rules the Human Rights Court cannot override British marriage law – it can only point out an inconsistency.
Welcome back and thank you for this very interesting analysis.
1. Take it to the International courts
namely the Hague because United Nations Declaration and Rights of the Child should be the statutes argued.
a) under said declaration, a minor has the right of the protection of both parents. Where were the parents they when Guiffre was aged 14-18?
Emphasis added, Emancipation might have already taken place in a court of law or implied, understood if Guiffre had separated from her parental obligations. Drag them into court for strict proof of their emancipation. In order to cross birder and immigration check points, a letter from the parents need to accompany the passport ( applied for by the parents of a minor) said documentation shows the strict proof of legal custody or emancipation
Acting older, and wanting to be older, seem older and lying outright saying they are older is typical of all teenager girls.
If Guiffre was emancipated from her parents, the strict proof evidence of id to enter disco bars at check point A, another checkpoint B for waitresses to request id to serve
alcohol to minors who bypassed dumb bouncers at entry….
That’s if she was there at all….
Preventative measures need to be put in place on menstruation products, it should be mandatory to explain about unwanted sexual advances, touching, speaking firmly about meaning what you say and certainly the age of consent should be increased to 25 years when prefrontal brain formation is complete and that there is no mistaking blurred boundaries.
most importantly, that when a man touches , kisses or has sex, he primitively thinks he is doing you a favour because he is assuming up to that point, you are interested.
So if a case is established, wouldn’t it be statutory rape rather than assault? If emancipated, does it establish consent?
As for jurisdiction, the plaintiff resides in Australia, and said motions should be filed in that jurisdiction only.
cross examination of guiffre’s parents need to be completed and need to be added as third parties to
the claim, emphasis added she was a minor but may very well establish emancipation of parental care.
Also, parents bank records may trace funds and criminal charges laid if they pimped out their daughter.
Oh very good! You said you could not predict how the judge would decide, and now it turns out neither could the judge ;)
The judge has decided that, under Florida law (which he applies to this question), the interpretation of ambiguous language in the contract is a matter for the trier of fact. So the litigation proceeds. The one crumb of comfort for Prince Andrew is that he can, if he wishes, raise this question again in front of a jury.
https://www.nysd.uscourts.gov/sites/default/files/2022-01/21CV6702%20JAN%2011%202022%200900.pdf
Arriving late, but after reading this excellent analysis, a slightly off-centre question springs to mind. The additional insight gained from reading this article provides the additional detail that both Guiffre and Epstein retained legal counsel during the negotiation of their settlement – we have that stated in the settlement itself.
We also may be aware that, whether their participation be for criminal or civil cases, the legal counsel to a plaintiff and a defendant are, first and foremost, officers of the court.
This article raises a fascinating question of – I take artistic license – intent. Was it the intent of the agreement for Epstein to use the document to protect both himself and [and here I proffer a theoretical position] any other potential “Individual-1” through “Individual-n” characters to whom Mr. Epstein stood accused of trafficking Ms. Guiffre? It seems to me that counsel to the parties of the agreement – sworn officers of the court first and foremost – should have a view on this.
Align that with the chronology: what is the point in time of the alleged relations between Prince Andrew and Ms. Guiffre relative to the date of the agreement?
It is *possible*, I suppose, that even though it might have been shielded by attorney-client privilege, that there might be contemporaneous notes, taken by Mr. Epstein’s counsel, when they were taking instruction on the terms of the agreement that Mr. Epstein wished to have included. I dare say the “any other persons” provision would have been one of them.
I am much less certain on question of whether or not the late Mr. Epstein’s counsel would be obliged to disclose any such advice had it been sought or given, or whether said counsel would have retained the paperwork this long after his passing. I suspect that out of an abundance of caution that all paperwork would be retained until, for example, his will was settled and estate wound up.
But on first read of this excellent analysis I do find myself wondering if such contemporaneous material would be relevant or indeed welcome in this case. I suspect the answer to the latter part of the question would be: “It depends on whose position it enforces.”