Is Prince Andrew protected by a prior settlement agreement?

Introduction

Here we consider the question of whether Prince Andrew can be protected against the pursuit of legal proceedings for sexual assault by way of a waiver clause contained in a 2009 settlement agreement (“the Agreement”) between his accuser, Virginia Giuffre, and the late financier and sex offender Jeffrey Epstein. In particular, we consider what may happen had the Agreement been governed by the laws of England and Wales. The Agreement, made in the US, became public on 3 January 2022. We provide access to a copy of the Agreement below. In the meantime, we await the imminent decision of Judge Lewis Kaplan on its enforceability in New York State.

Background

The Agreement was released ahead of the hearing in New York on 4 January 2022 into Ms Giuffre’s claim against Prince Andrew. Arguments around the interpretation of the Agreement centred on the general waiver, dealt with below. Of note is that the wording of the Agreement is not as tightly or well drafted as one might expect to see in the UK.

The Agreement, in full, can be found here. Ms Giuffre agreed to “release, acquit, satisfy, and forever discharge” all claims and other actions against Epstein and “the said Second Parties and any other person or entity who could have been included as a potential defendant” in exchange for the sum paid by Mr Epstein. This clause covered all claims Ms Giuffre “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.” The clause therefore covered all claims arising out of past conduct, including those of which Ms Giuffre was presently unaware. However, it did not waive future claims arising out of future conduct by Mr Epstein or the other potential defendants.

Whilst Prince Andrew is not named in the Agreement, his lawyers argue that he is protected by the aforementioned clause because he was a potential defendant in relation to the inappropriate acts that gave rise to the settlement agreement. It is understood from court reporting of the hearing on 4 January 2022, that “Royalty” were named in pre-action correspondence leading to the settlement. Conversely, Ms Giuffre’s lawyers argue that the terms of the 2009 agreement are irrelevant to her claim against Prince Andrew, which relates to sexual abuse in New York, London and the US Virgin Islands, albeit pre-dating the date of the Agreement. The time when it was alleged that Prince Andrew had sex with Ms Giuffre was March 2001.

Relevant Law

Waiver clauses such as that used in the Agreement are legally permissible in England and Wales provided they are carefully and explicitly worded and the parties have complete knowledge of the scope of what they are agreeing to. Where parties want to waive all future claims, including those of which they are currently unaware, “clear language” is required to do this (Lord Bingham in BCCI v Ali and Others [2001] UKHL 8).

In Maranello Rosso Ltd v Lohomij BV [2021] EWHC 2452 (Ch), the High Court upheld a waiver clause which also covered claims against third parties. There, the class of people stated to benefit from the release was sufficiently “wide and far-reaching” to capture the relevant defendant. A similar release clause relating to third parties was upheld in Starlight Shipping Company and Allianz Marine and Aviation Versicherungs AG and others [2014] EWHC 3068 (Comm), where the phrase ‘underwriters’ was used to define who benefitted from the waiver and was held to include the underwriters’ servants and agents who were not a party to the agreement.

Discussion

Two points arise to be considered: (1) does the clause in the Agreement likely cover Prince Andrew? (2) would such a clause likely be enforceable in England and Wales? These points are considered in turn below.

First, factually, it is arguable that, in principle, the waiver clause in the 2009 agreement could be said to cover Ms Giuffre’s claim against Prince Andrew. This claim relates to sexual abuse which she alleges took place around 20 years ago, when she was a teenager. It therefore pre-dates the Agreement and so is conduct that theoretically falls within the waiver clause. Further, because Prince Andrew was one of Mr Epstein’s known associates and because (at the time the Agreement was made) Ms Giuffre had potential claims against the Prince relating to past sexual abuse, it is arguable he would be caught by the phrase “any other person or entity who could have been included as a potential defendant.” Of course, not all information relating to Ms Giuffre’s claim against Prince Andrew, nor about the 2009 case/agreement, is currently known to the public, and it may be that factual information is revealed in the 4 January 2022 hearing that means this view needs to be reassessed. For now though, it can be said that Prince Andrew could theoretically fall within the clause. We, of course, eagerly await the Judge’s decision which is said to be “due shortly.” His position so far appears to have been somewhat resistant to the Prince’s arguments – perhaps because he takes the view that the clause is so wide it cannot be enforced by anyone other than a party to the Agreement.

Second, were the waiver to feature in a settlement agreement governed by the law of England and Wales, could it be used by Prince Andrew? Quite possibly, because the language used is sufficiently clear and wide-ranging so as to cover all present and future claims against Mr Epstein and third parties relating to past conduct, and so as to make clear that this is the parties’ intention. Therefore, the wording of this clause is likely to be in line with the guidance given in the case-law set out above as to when such clauses will be enforceable.

It remains to be seen what will be argued by either party about the 2009 agreement waiver clause at the 4 January 2022 hearing relating to Ms Giuffre’s claims against Prince Andrew. We will be following the progress of the case closely and will provide any relevant updates.