Some interesting legal issues arise in relation to the claims made by Virginia Giuffre against the Duke of York.
I do not propose to examine the merits or otherwise of the claim, but will confine myself to legal issues relating to jurisdiction and procedure.
Has the Duke of York been served? That depends upon a detailed examination of the facts as to who did what and on whose instructions. For example, personal service may or may not have been effected (it depends on the facts), but if the process server was not instructed by an English solicitor, the service will have been invalid. This is due to a letter written in 1980 from the Senior Master of the Queen’s Bench Division of the High Court, to assist in interpretation of Article 10(c) of the Hague Convention Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The letter states,
“I am happy to confirm that our declaration does not preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in the United Kingdom “directly” through a competent person other than a judicial officer or official, e.g., a solicitor. (…)’ Conclusion and Recommendation No 58 of the 2003 Special Commission (SC) states: ‘The 2003 SC noted that the UK confirmed its position expressed at the Special Commission meeting of 1989, indicating its preference for the use of direct service through English solicitors on residents of England and Wales.’”
Whilst the Judge in New York, according to media reports, does not seem particularly interested in the issue of service, since there is a “high degree of certainty” that Prince Andrew can be effectively served “sooner or later”, even if the judge is satisfied that service has been properly effected, a default judgment would not be enforceable in England if the English Court were to decide that service had not been properly effected.
On the other side of the coin, it appears that the Duke’s lawyers are seeking to rely on a settlement agreement in another case which “releases the duke and others from any and all potential liability.” That appears to be a submission on the merits and may make a default judgment, if one is given, enforceable in England, which it might not otherwise be.
Even if the New York court decides it has jurisdiction in relation to the claim, a default judgment might not be enforceable, provided that it does not come within one of the four bases for enforcement set out below.
A court of a foreign country outside the United Kingdom has jurisdiction to give a judgment capable of enforcement or recognition as against the person against whom it was given if: –
- The person against whom the judgment was given was, at the time the proceedings were instituted, present in the foreign country.
- The person against whom the judgment was given was claimant, or counterclaimed, in the proceedings in the foreign court.
- The person against whom the judgment was given, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings.
- The person against whom the judgment was given, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of that country.”
Even if the Duke seeks merely to contest whether he has been served and jurisdiction, he may be dragged into lengthy US discovery purely in relation to jurisdiction.
The tactics both parties adopt at this early stage could well determine the outcome of the proceedings.
Both sides need to tread carefully not to undermine their own position.
Steven has been involved in a number of the leading cases on enforcement of foreign judgments in England and obtaining evidence in England for use in foreign proceedings. He has also given expert evidence to foreign courts in these areas of law.