The commentaries on the Duke of York’s case mostly reflect the stance he seems to have taken, in relation to the allegations of sexual abuse made against him. They and he are misguided. The simple fact is that his position confers no special status on him, whatsoever, as far as either the American, or English courts are concerned.
This means, for example, that he could not avoid service, because courts would make – as one has done – an order for service by some substituted means. His apparent attempts to avoid service were always hopeless and served only to make him look evasive and undignified. It means, also, that this case is likely to be fought with limitless persistence, by the plaintiff and those who support her action, because there is nothing to stop her doing so and every stage in the process provides more publicity and, thus, potentially increases her value as a “celebrity”.
Barring some improbable and unforeseen intervention, the case will be settled, or litigated. It is to be expected that a settlement, buying off the plaintiff, would be exorbitantly costly, as that would limit the stream of publicity, especially if it sought to include her subsequent silence. It would, also, to much of the world, imply guilt. Would other women, even without any foundation, be encouraged by the idea they would have nothing to lose and much to gain, by making similar claims?
If the case is left to go to trial, the Duke must either allow it to take its course, undefended, or defend it. The former course could be disastrous, as an American jury would decide both the issue and the quantum of damages and, when moved by indignation, they show bizarre generosity to aggrieved plaintiffs. Fighting does not necessarily mean the Duke giving evidence, but the case will be hard to win, if he does not. The most obvious policy looks the best – fight the case, give evidence, and win it.
There will be embarrassing aspects, even then, but the real danger is the American jury believing an American woman, in preference to a Royal duke, so finding for her. Fortunately, the plaintiff’s story is self contradictory and she has a history of commercial sexual activity, so it ought to be possible to destroy the allegations. Unfortunately, his public interview on the subject indicates that the Duke is unlikely to be a good witness, however innocent he may be.
The – for the Duke – unhappy reality, that there are no good options, does not mean that there is not a best option. If the claims are false, his best option is to defend the case, as any other defendant would do, full on. Embarrassments will be short lived and he will very probably win it. If they are not, the danger that a trial may make that apparent means that his best option is to settle.
There are press reports of some attempt, by the Duke, to take advantage of an agreement between the plaintiff and the deceased Geoffrey Epstein, precluding the plaintiff from taking her action, which appears to be over optimistic to an English eye, by reason of privity of contract, but American law may differ, of course. We will see, but I doubt it will affect my above observations.
John Beveridge QC