Prince Andrew’s hopes of getting the case by his US sex accuser thrown out of court were hanging by a thread last night following a ‘brutal’ hearing in New York.
A judge told the royal he would find out ‘pretty soon’ – most likely within days – if his bid to have the lawsuit dismissed would be successful.
But the early signs were not good for the Queen’s son after Judge Lewis Kaplan put his legal team through a bruising encounter during a make-or-break hearing in New York yesterday.
One legal expert said that the hearing ‘could not have gone worse’ and pointed out that the fact that his lawyers were reduced to saying they ‘respectfully disagree’ with the judge did not bode well- adding ‘respectfully disagreeing with the judge means you are about to lose.’
Andrew’s lawyer was seeking to persuade the court that his accuser, Virginia Roberts, now known as Virginia Giuffre, had waived her right to sue him when she signed an earlier £370,000 ($500,000) legal settlement with paedophile Jeffrey Epstein, the duke’s friend.
Miss Roberts, 38, one of the billionaire sex offender’s most high-profile victims, claims she was trafficked by him and girlfriend Ghislaine Maxwell to have sex with Andrew on three occasions when she was 17.
The 61-year-old prince vehemently denies the claims and says he has no recollection of even meeting her.
Prince Andrew’s hopes of getting the case by his US sex accuser thrown out of court were hanging by a thread last night following a ‘brutal’ hearing in New York. Pictured: The Duke of York leaves his Royal Lodge home
The Duke of York was photographed with his arm around the bare waist of then 17-year-old Virginia Roberts. In the background, Ghislaine Maxwell. Roberts claims she was forced to have sex with the royal three times
Miss Roberts, 38, claims she was 17 when she slept with Andrew three times in 2001 under orders from Epstein
Judge Kaplan appeared mostly dismissive of the arguments by the duke’s lawyer, Andrew Brettler.
He said that part of the 2009 settlement protecting ‘other potential defendants’ that Andrew’s lawyers had appeared to be leaning on was ‘unclear’ and pointed to two sentences in the text that seemed to suggest it could not be used by Andrew.
Judge Kaplan also pointed to language in the agreement stating it is ‘not intended to be used by any other person’ to protect themselves from lawsuits without the agreement of Miss Roberts and Epstein – again suggesting Andrew could not rely on it.
While he did not immediately rule at the end of the hearing, he made clear that he was not leaning Andrew’s way as he rejected much of the reasoning offered by Mr Brettler, who said the case ‘should absolutely be dismissed’.
Judge Kaplan told the two sides: ‘I appreciate the arguments and the passion. You’ll have the decision pretty soon.’ But he directed that the exchange of potential evidence in the case was to proceed as scheduled – which was seen as an indication he would likely rule against Andrew’s motion.
Sources close to the proceedings yesterday described them as ‘brutal’ for Andrew. During the hour-long hearing, held via video conference due to Covid, Judge Kaplan interjected several times in Mr Brettler’s arguments.
Prince Andrew has hired Hollywood attorney Andrew Brettler (right) to represent him in the sexual assault case brought against him by his accuser and Jeffrey Epstein victim Virginia Roberts Giuffre
Andrew’s lawyer was seeking to persuade the court that his accuser, Virginia Roberts, had waived her right to sue him when she signed an earlier £370,000 ($500,000) legal settlement with paedophile Jeffrey Epstein, the duke’s friend. The 2009 settlement between Jeffrey Epstein and Virginia Giuffre was unsealed on Monday
He told him once: ‘With all due respect, Mr Brettler, that’s not a dog that’s going to hunt here’ and another time asked the lawyer outright: ‘So what?’
Prominent legal figures suggested the case had gone against Andrew following tough questioning and the skepticism from Judge Kaplan over the arguments.
Mitchell Epner, a former federal prosecutor who now works as counsel for law firm Rottenberg Lipman Rich told The Times: ‘From Andrew’s point of view it could not have gone worse.
‘Judge Kaplan made it very clear that he did not accept the arguments that Prince Andrew’s counsel was making with regard to the settlement agreement.
‘There were a number of times where Andrew’s counsel was reduced to saying, ‘Well, I respectfully disagree.’ In the courtroom, respectfully disagreeing with the judge means you are about to lose.’
Lisa Bloom, a US trial lawyer who previously advised rapist Harvey Weinstein and has been following proceedings tweeted: ‘Andrew wants her case thrown out on technical grounds. Judge Kaplan aggressively questioned defense on this and appeared unwilling to do it.
‘I’m optimistic that Virginia will get her day in court.’
Earlier on yesterday, English lawyer and writer David Allen Green suggested Andrew’s lawyers had the uphill struggle to win the case by jumping through ‘four hurdles’.
‘To win, Andrew’s lawyers have to show that: agreement as whole can be constructed so as to cover him; the phrase ‘potential defendant’ should be interpreted to cover him; there is no rule of law/policy that prevents enforcement; he can enforce it without privity.’
Miss Roberts’s lawyers, he argued, ‘only have to meet one of these hurdles’.
Prince Andrew is interviewed for the BBC’s Newsnight in November 2019. In the interview, Andrew denied Ms Giuffre’s claim that they had shared a sweaty dance at a London nightclub, saying that at the time he could not sweat due to a condition
Prince Andrew walks through New York’s Central Park with Jeffrey Epstein following the latter’s prison term in 2011
Yesterday’s hearing was seen as one of Andrew’s last opportunities to get the civil lawsuit thrown out before a trial this autumn, which would overshadow the Queen’s Platinum Jubilee year. His side argued that the deal Miss Roberts cut with Epstein in 2009 released the duke from any liability.
The settlement saw Miss Roberts agree to ‘release, acquit, satisfy and forever discharge’ not only Epstein but also ‘any other person or entity who could have been included as a potential defendant’. She is now suing the prince under her married name of Giuffre.
Mr Brettler argued yesterday that this would have included Andrew, saying: ‘I don’t know who would be included in other potential defendants if it weren’t all of the other people who… Giuffre alleged abused her.
‘I think it’s unquestionable that Prince Andrew could have been sued in the 2009 action. He was not.
‘She could have sued them and she did not and therefore she waived her rights to sue them when she entered into the release agreement and accepted the money from Mr Epstein.’
But Judge Kaplan appeared to dismiss this part of the argument, saying ‘potential’ was a word in which neither he nor Mr Brettler could ‘find any meaning at all’.
He said that the ‘real question’ is what Miss Roberts and Epstein intended when they entered into the settlement – and the financier, who killed himself in 2019 while awaiting trial on further child sex charges, was not around to say.
Miss Roberts’ team say the deal offers Andrew no protection. The prince is believed to have listened in on the hearing from Windsor.
Miss Roberts is suing the Queen’s son for allegedly sexually assaulting her when she was a teenager. She is seeking unspecified damages, but there is speculation the sum could be millions of dollars.
She claims she was trafficked by Epstein to have sex with Andrew when she was aged 17 and a minor under US law. Andrew has denied all the allegations.
During the hearing there was legal discussion about the meaning of ‘potential defendant’, with Mr Brettler telling Judge Kaplan it was ‘someone who was not named as a defendant but could have been’.
The lawyer added that a potential defendant would be someone Miss Roberts knew that she had ‘claims against at the time that she filed the lawsuit’ in 2009 against disgraced financier Epstein, whose former girlfriend Ghislaine Maxwell was convicted last week of procuring teenage girls for him.
In response the judge said ‘potential’ was a word in which neither he nor Mr Brettler could ‘find any meaning at all’.
The settlement between Jeffrey Epstein and Virginia Giuffre has been released. The document makes no mention of Andrew by name
The duke’s lawyer raised a second issue, claiming there was a lack of information supporting the allegations made against the duke, which he suggested should be disclosed now and not after a request for information from the royal known as discovery.
He said: ‘Ms Giuffre needs to lock herself into a story now. Not sometime in the future after she conducts discovery and figures out where the chips may fall… she needs to allege in her complaint against Prince Andrew when he supposedly abused her – I’d like even a date, a month.’
He added: ‘She alleges in a group pleading fashion that Epstein, Ghislaine Maxwell and Prince Andrew abused her in conclusory fashion. She doesn’t explain what this alleged abuse was.’
But Judge Kaplan said: ‘With all due respect, Mr Brettler, that’s not a dog that’s got a hunt here’ and that she had no obligation to do so.
Concluding his arguments, the duke’s lawyer said the case against his client should ‘absolutely be dismissed’.
Mr Brettler said about Miss Roberts: ‘She has given plenty of interviews all over the world, then files this lawsuit. It is unfair, it is unjust, it should be dismissed.’
The lawyer acting on behalf of Miss Roberts. David Boies, told the virtual court hearing of the Southern District of New York, only the parties of the settlement agreement, Epstein and Miss Roberts and their associates, could benefit from it, and not a ‘third party’ like Andrew.
He said: ‘Any third party beneficiary rights would have to be asserted by the parties of the contract and could not be asserted by a potential defendant.’
Mr Boies added: ‘Prince Andrew could not do it, the only person who could assert this release in this case, would be Epstein.’
Miss Roberts’s attorney said the duke would not be a ‘potential defendant’ as referred to in the settlement, as the 2009 lawsuit made no allegation the duke had trafficked individuals for illegal sexual activity.
The lawyer told the hearing: ‘He was somebody to whom the girls were trafficked, that’s a different criteria.’
The Daily Mail understands that Andrew’s legal team will not seek to appeal if the motion to dismiss the case is denied by the judge. But there are other avenues they may yet pursue to get the lawsuit kicked out.
This includes the suggestion that Miss Roberts, who lives in Australia with her family, is not domiciled in the US, allegedly rendering her case invalid.