15th February 2022
Today the news broke that there had been a settlement in the claim brought by Virginia Guiffre against Prince Andrew.
For non-lawyers, such a settlement may have seemed a surprise.
This post explains why almost all civil claims settle – in America as well as in England.
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In general terms, a civil claim is when one party sues another party.
This is opposed to say when the state prosecutes a party – where the process often ends in court for a trial, or (if there is an early guilty plea) at least for sentencing.
In effect, party A wants a remedy from party B in respect of a legal wrong.
In many cases, it is bleedingly obvious to party B (and party A) whether party A actually has a case or does not have a case.
And in those circumstances either party B provides a remedy or party A does not take the case any further.
But.
There will be cases where party A and party B have different views as to the merits of the case, or as to what they would be prepared to offer and accept for the case to settle.
And so a type of choreography begins.
The civil litigation negotiation dance.
To non-lawyers, it may seem that the court – and a trial – is central to the process of a civil claim, and that a hearing and a trial is the natural end-point.
And that any departure from this supposed norm is somehow incorrect.
But in most cases, the court process provides merely the parameters of a negotiation between the parties.
Each party will seek – strategically and tactically – to use the court process to strengthen their negotiating position, or to weaken the other side’s position.
Both sides – or at least their lawyers – will know this from the beginning – and will game-plan accordingly
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In the case of Andrew, several unconvincing (indeed desperate) technical and jurisdictional defenses were mounted.
And Guiffre’s lawyers, in turn, had to dismantle each defense.
Andrew and his lawyers never seemed to emphasise a substantive defense, on the facts.
So, when all the technical and jurisdictional defenses were lost – and as Andrew’s substantive defense was not being robustly promoted – Andrew and his lawyers were placed in a very weak negotiating position.
And so, Andrew and his lawyers settled on disadvantageous terms.
Guiffre and Guiffre’s lawyers did a very good job.
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Sometimes civil cases do not settle.
Sometimes parties are unrealistic or irrational.
Sometimes there is a wider point to establish – for example the ownership of a property right.
Sometimes – rarely – there is a genuinely novel point of law that means neither side knows the strengths and weaknesses of their case.
(And sometimes in England and Wales, special rules about legal costs may mean a party has to go to trial as they are trapped by onerous costs consequences if they settle.)
But usually, civil litigation is about deal-making – though deal-making in a particular context.
It is about leverage, choosing terms of engagement, logistics, tactics, and strategy.
The Art of Law, as Sun Tzu would have put it.
Yes: some may enjoy the theatrical glamour of the criminal courts.
But for others (including me) it is civil litigation which holds the most interest.
It is like the game of chess, but with correspondence, evidence, pleadings and, sometimes, even law.
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Your depiction of pre-trial maneuvering captures the “dance” nicely. It’s possible that if the general public had a better idea of how the system actually works they would have less scorn. Possibly.
I agree with your description of litigation .. and the opponent’s are well matched, one can liken it to an intriguing sumo match
However it became clear that this match was increasingly one sided leading as you wrote to a sonorous ‘well’ when the inevitable was announced! However I remain interested in the words of the joint announcement which read to me like disconnected statements intended for people to infer that that the defendant is settling out of philantropy all the while seeking to mask the primary fact that he has capitulated and paid the plaintiff significant damages personally and, in addition, that he is to make a contribution to her charity. Do you read the statement of settlement differently?
I am not at all surprised that Andrew has settled “in principle”. His case is / was almost un-winnable on so many fronts. His mother is 95 and in increasing ill health. It is her jubilee year. The embarrassment of a concurrent court case is obvious. Who else is he going to get the money from? I can’t imagine Charles is willing to dip his hand in his pocket and Edward has none. Why should they? The apposite question: is this funded 100% from Elizabeth’s own money or is the taxpayer subsidising it? The Hanoverians have always been happy to fund their private pleasures from the public purse. The last English King? Harold.
As far as has been reported, the Duke sold a house he privately owned to pay for his legal campaign.
The current royal family have, since 1917, called themselves the House of Windsor. Agnatically, Her Majesty is descended from the House of Saxe-Coburg & Gotha, her children from the House of House of Schleswig-Holstein-Sonderburg-Glücksburg. The House of Hanover has not reigned over Britain since 1901. The Queen and all her children were born in London, and no British monarch since George II was born outside of England.
It you want to be etho-nationalist about it, the Angles and the Saxons also a German origin. And Harold’s mother – Gytha Thorkelsdóttir – was Danish.
Were the Stuarts, the Tudors, the Plantagents, and the Normans particularly less inclined to spend from the public purse on private pleasures?
With your analogy of a chess game being played, was Andrew in checkmate when this was settled, or the were moves seen far enough ahead to realise he had to flip the king and write a cheque?
The latter, I suspect
I think we know Andrew’s cheque would have bounced. Mummy paid. But from whose account? Hers or the state’s? That, surely, is of constitutional interest?
There is a useful – if simplistic – explanation of Crown finances to be found here:-
https://www.bbc.co.uk/news/explainers-57559653
If you follow that loop, you will notice that the Crown Estate makes profits and that those are paid to the Treasury, who reciprocate with an annual Sovereign Grant that the Queen then disburses to other members of the Royal Family. Some members of the Family have other sources of income – Charles has extensive property holdings and takes income from that – in 2020 the Duchy of Cornwall was reported to have seen an income of almost £22.2 million, for example.
So the most accurate answer to your question of “who pays” basically boils down to this: does the income generated by the Queen – for example profits from ticket sales (e.g. £30/adult to Buckingham Palace) and other income generated by the Royal Collection Trust – exceed or fall short of the Sovereign Grant? The BBC article goes on to show that in the year ending March 2020, the Crown Estate made £345 million. Special changes in the funding were made to cover the cost of the refurbishment of Buckingham Palace, but it seems likely that the overall the Crown Estate has more than enough income to cover this cost.
Presumably the presiding judge will have to agree and given her past remarks that she wanted any settlement to show clearly that young girls were abused this could be a sticking point. De facto Andrew has lost his case but without an admission or finding of guilt – maybe the judge will want more?
The judge won’t care, as long as he is satisfied that both sides are making their decisions on the basis of competent legal advice, which they evidently are.
I think you are mixing- up conscious -v- coins.
As with many UK judges (my experience), I doubt the judge gives a damn whether or not ‘justice’ is done.
He is doubtless relieved that he is not placed in the potentially compromising situation of having to condemn a UK ‘establishment’ figure – which is what Andrew is part of, (or alternately finding some (improper) way of making him innocent.) Judges can do anything they like, no matter how clearly ‘wrong’) and are effectively wholly unaccountable.
As for ‘payment over penalty’, this is often the available remedy for the wealthy. (This was always going to be the predictable outcome, if and when it came to a shoot-out) No such escape route for the vast majority (in this (pretend) world of equality and equal rights).
Who will actually pay Andrew’s bill? Whichever way you slice it, it will ultimately be the people of the UK.
That is how dictatorships work:
Guilty go free; innocents pay (current Post Office scandal etc as eg)
It always has been and always will be.
(UK democracy/Santa Clause/Tooth Fairy – all the same)
A classic case of ‘go away and leave me in peace’ money!
Recent reports that the claimant could not produce an original of the compromising photo of her with Andrew seem to have come too late to affect the outcome.
Not really: a go-away-nuisance case would not have been settled like this.
I’d have thought it highly unlikely that Guiffre would have an original of ‘that photo’ – presumably it was taken by Epstein, or another ‘guest’ at the event. If Andrew’s lawyers were trying to claim it was fabricated, then they were clearly clutching at straws.
As a successful defendant in a US litigation case brought against me and my partners I have a different view. In 2001 my young UK company which was a successful fund manager was sued by a US family office and accused of fraud. There was no fraud, but a technical accoubting issue rooted in the different tax systems of the UK and the US gave rise to an opportunity for an investor from the US to pretend there had been a fraud. We had to fight the case, which we did, in Delaware courts, and we won. The claimant was , we suspect, simply trying to recover their bear market losses, and judged that we would have to settle as the technical issue was too complex and would cost us a lot to fight. We took the view that we had done no wrong, if anything the claim was researched and manufactured with dishonest intent. It cost us 1.4m dollars to fight. We asked the judge to consider asking the claims to pay our costs, but he said that while he considered the case against us ludicrously weak, the bad of proof for a spurious suit was a high one, which given the complexity he could not confidently award. From this experience I learned that litigation in the US is about advantage not justice or right and wrong, that process rules are crucial and tip the balance in favour of those with resources and penalise those who are poorer, that morality is absent from much of the system. After the case our company recovered and did well, but until I retired I swore that we would never register in the US or have a US subsidiary. Brits like me thought that the law was about right and wrong, regs and justice. But I can assure you that for many it is simply a climbing frame, a tool by which wealthy people can attempt to advantage themselves at the expense of others. Our case cost us 1.4m and wrecked my marriage in the tension of having to fight against powerful .malevolent actors in a foreign country. It should never gave been brought. I recall at the time saying to my boys, that they could do anything in life but I would prefer they kept away from estate agency and financial litigation . For evidence of my view look no further tha cases brought in civil courts by a former US president.
Thank you for sharing this story.
Prince Andrew’s side recently (only a week or so ago I believe) claimed that the notorious photo of him standing grinning next to Epstein and the claimant was a fake and had been digitally edited to add either Andrew or her, although I think Ghislaine Maxwell had stated a while ago that it was genuine.
The claimant conceded that she was unable to provide the original or the negative. So on hearing of the settlement, my first thought was that she had been advised that discretion was the better part of valour and that it was better to cash out now rather than risk losing the entire case on account of the possibly non-existent photo.
However, the desire (or demand from someone!) not to prolong the case into the HMQ’s platinum jubilee was probably an equally plausible motive for Andrew also to wish to settle, and perhaps the only one if the “doctored photo” claim was easily dismissable nonsense!
I thought the ‘disappearing photo’ routine was very good, scuppered any last chance of wriggling out.
Not a very edifying sight all this gamesmanship for liars but I suppose marginally better than red hot tongs etc. Then I see that officialdom knew all about flaming Grenfell panelling years ago and I see the Post Office scandal drags on. Now about those red hot tongs…
Perhaps the Courts of Justice on both sides of the Atlantic are better described as Chess Courts or even Roulette Courts ?
As you correctly point out everything has been done to tactical precision in accordance with the rules of procedure but this whole episode is as tawdry as it is unedifying .
As Britain is rebuilt in the post Brexit age let us hope that lessons will be learned without holding our breath.
“Sometimes civil cases do not settle.
“Sometimes parties are unrealistic or irrational.
“Sometimes there is a wider point to establish – for example the ownership of a property right.”
While reading that the case of Irving v Lipstadt and Penguin Books sprang to mind. Although David Irving’s racist attitudes fit the first criterion, he brought the case because publishers responded to Lipstadt’s description of him as a Holocaust-denier by slamming their doors in his face and depriving him of his main or only source of livelihood. That sounds pretty rational.
It was the other side that refused to offer to settle. In this TED talk Lipstadt explains why, starting at 7:48.
https://www.ted.com/talks/deborah_lipstadt_behind_the_lies_of_holocaust_denial
Her rationale includes emotional content — if she didn’t fight the case, she couldn’t ever face a survivor or a survivor’s children — but “the heart has its reasons”, so hardly irrational.
It was a gamble, but one witness, Sir Richard Evans, went practically line by line through the offending works of the plaintiff and showed how he had perverted the historical evidence.
The trial took ten weeks. For masochists, the retired, and the otherwise under-employed, full — very full — details are here:-
https://www.hdot.org/trial-materials/
Many perhaps most civil cases settle, for a variety of reasons – the time and expense and trauma of litigation, the risk of losing, the potential for reputational damage whether you win or you lose. In the US, I believe Andrew would have been liable to pay his own legal costs, whether he won or lost.
Much speculation in the press, but without having details of the settlement – and a good estimate of the chances of the case being won, and the likely damages – it is impossible to know who has “won” and who has “lost”. In a sense, both sides may have won – Andrew has made the claim go away without admitting liability, and perhaps at a lower overall financial and reputational cost than if the case had gone to trial. Virginia Guiffre has made Andrew say things he rather would not have said, plus (one assumes) a substantial payment, a chunk of which I expect will pay her own legal costs.
It would be fascinating to know what the advice was at an earlier stage. I expect Andrew was encouraged to settle at a lower amount. Perhaps settlement offers were made but rejected. Who knows.
I hope each side is able to move on with their lives now.
I’ve been fascinated for years by the way the line is drawn, in a given country’s body of law, between civil and criminal law.
I guess Andrew’s case is a good example. Settling the civil case means evidence hasn’t been led which might have given grounds for a criminal prosecution. But have there not been cases where the civil case has opened the way for a criminal investigation, or at least the publicity has pressed a police force to reconsidering a previously abandoned investigation?
I often feel that some civil claims, say a negligence case against a hospital, are potentially manslaughter cases. And some civil claims for restitution after financial loss are potentially criminal fraud cases.
Likewise, some formal enquiries, such as the report on the Met, reviewing the saga of abortive police investigations into the Daniel Morgan murder, seem naturally to establish grounds for criminal charges – in that case maybe of misconduct in public office .. but that hardly ever seems to happen – there currently seems no prospect in the Post Office scandal either. I know that some Inquiries, like the Grenfell, explicitly indemnify witnesses against criminal charges in order to draw out information that wouldn’t otherwise enter the public domain .. but that too often leaves a strong sense of justice not having been served.
Anyway .. I’d be interested in your thoughts about where the line is drawn between civil and criminal cases .. how a polity decides what should be civil and what should be criminal, and why that line is drawn differently in different countries.
The line between civil and criminal cases (for essentially the same case)?
If you are wealthy and powerful = civil.
If poor and powerless (most everyone else excluded from the above) = criminal.
(Its the UK version of ‘equality’)
Her case was terrible. I’ve read as much of the evidence in her earlier defamation claim against Maxwell as I could. She comes across as someone who would make a terrible witness. Amongst other things, she could not even remember – and this was nearly 10 years ago, i.e. 10 years after the events – how old she was when she first met Maxwell and Epstein (she claimed 16 but she was 17).
While she claims she was a ‘sex slave’ for 3 years, the evidence shows that for a lot of that time she and Epstein/Maxwell were not even in the same country, let alone the same state. For the rest of the time she was living and working in Florida and trying to get her High School degree equivalent. She ‘escaped’ from Epstein when he paid for her to travel – by herself – to Thailand to learn a new type of massage therapy, met an Australian and went with him when he returned to Australia. Epstein appears to have just shrugged this off.
The evidence available in those proceedings is consistent with someone who happily received $200 a time and frequent substantial international travel at a luxurious level (private aircraft, luxury hotels, villas etc.) in return for giving massages with a fairly minimal sexual content. (It’s somewhat consistent with her allegations, also.)
I could be mistaken, but her allegations against Andrew and against Maxwell/Epstein seemed to increase in seriousness over time. Query whether this is because she found out that her age – 17, nearly 18, when it all began – was over the age of consent in almost every place where she claims things happened, and so therefore a claim that sexual intercourse had taken place would not amount to an allegation of statutory rape, and hence there was an incentive to bolster the allegations by making allegations that what had happened to her amounted to sex trafficking and slavery.
I conclude that Andrew is lying; he did meet her, they did have sex (one of the complainants in the Maxwell trial last year said that she’d been friends with Roberts who had texted her to the effect ‘Guess who I slept with? Prince Andrew! LOL!’) but because Andrew is stupid he tried to cover up the whole thing instead of simply admitting what had happened. He probably didn’t speak to a lawyer at first and may have also thought she was underage at the time.)
Giuffre had Andrew over a barrel even worse than the one she had Epstein over back in about 2012 when she settled with him for $500,000, because Andrew is a member of a Royal House and a non-American whereas Epstein was merely rich and was American, but if Andrew settled with her for much more than half a million then my conclusion on the evidence I’ve seen is that an injustice was done because his actions were at worst slimy and predatory and at best the sort of thing that happens between rich men and attractive women all the time.