Serving papers

[swill453]

his widow's family then sued him in civil court

Not sure "widow" is the correct term for the dead (alleged) victim

Scott.

[Lootman]

It seems very likely he is doing what his lawyers tell him to, so they must have thought through what was the best course of action for him.

Presumably so, although from Andrew's car crash TV interview on the subject, he clearly sees himself as being above the law which (to paraphrase Leona Helmsley's famous quip about taxes) is evidently only for the little people.

I guess the strategy is to regard it all as a piece of foreign nonsense, and ignore it. And it's not like a few million can't be found to pay the award if needed.

He might want to avoid travel to anywhere in North America, I imagine.

his widow's family then sued him in civil court

Not sure "widow" is the correct term for the dead (alleged) victim

Yeah, it felt wrong when I wrote it but I did not know how else to refer to his former wife without sounding prejudicial.

[9873210]

guess the strategy is to regard it all as a piece of foreign nonsense, and ignore it. And it's not like a few million can't be found to pay the award if needed.

He might want to avoid travel to anywhere in North America, I imagine.

If it's not contested then all the assumptions go to the plaintiff. Might be larger than a few million. Might have to sell off a few countries.

He would also need to not have any assets in the US and probably quite a few other countries. Many officials in many places could exercise their discretion to assist in collecting on a US debt, and I'm sure a few would be unusually willing to do so in this particular case.

[Clitheroekid]

This is extremely misleading, as it gives the impression that this is a perfectly normal method of service, which it emphatically is not - in fact I've never heard of anyone being served in this manner.

"they were served on 27 August, being left with a police officer at Windsor's Royal Lodge."
https://www.bbc.co.uk/news/uk-58523119

Yes, I've read the press report, but I'm quite sure that leaving the summons etc with a police officer would not constitute personal service under English rules unless a prior court order had been obtained authorising such service.

Incidentally, I noticed an amusing anomaly in the reporting. In yesterday's DM it said "According to a document filed on Friday, an affidavit of service was served at the Duke of York's home" - https://www.dailymail.co.uk/news/articl ... uffre.html

And in today's Guardian it said "Prince Andrew has been served with an affidavit for a lawsuit" - https://www.theguardian.com/uk-news/202 ... ears%20old.

They are both completely wrong! The affidavit is the sworn statement confirming service of the court documents, and only comes into existence after service has taken place.

But the interesting thing is that the Guardian reporter made exactly the same basic error a day after the DM reporter - I couldn’t help wondering if his story was just based on reading the DM article the day before!

As a matter of interest I had a look into the requirements for valid service of New York court documents, and as expected it's covered by the Hague Convention. This provides that any US court documents can be served via the `Central Authority' for the UK, which is the Senior Master of the Queen’s Bench Division of the High Court.

The way it works is that the New York judge would send a ‘Letter of Request’ (known in the US as ‘Letters Rogatory’) in the prescribed form, to the Central Authority. The Letter of Request is accompanied by the US summons and complaint.

The Senior Master (as the UK Central Authority) will then direct a judicial officer or agent to serve the summons and complaint on the defendant in the manner set out in the Letter of Request, or in a manner permitted under the Civil Procedure Rules (e.g. via a local agent).

Once service has been effected, the UK Central Authority will complete a ‘certificate’ in the mandated form, certifying that service was effected, the date service was effected and the manner in which it was effected, and then return the certificate of service, sealed by the Court, to the New York Court.

However, one strange aspect of the affidavit is that the agent who signed it, Cesar Sepulveda, doesn't say who actually instructed him to serve the papers. Although he could have served them on instructions from the Central Authority there's nothing in the Affidavit to say that he did, and they don't seem to have gone through this process.

I get the distinct impression that her lawyers were far more concerned with maximizing the media coverage than complying with tedious legal rules.

I can therefore see why Prince Andrew’s lawyers are arguing as to the validity of the service, and I'm surprised that for such a high profile case the agent didn't ensure that Prince Andrew was actually served personally.

[Lootman]

I can therefore see why Prince Andrew’s lawyers are arguing as to the validity of the service, and I'm surprised that for such a high profile case the agent didn't ensure that Prince Andrew was actually served personally.

But why would that matter? It surely only matters that the method of service is valid in New York. If the method of service bypassed any UK rules for service it will not matter as it will be a New York judge who will decide this based on New York rules. As an example you stated before that simply sending a letter is adequate service in the UK. That would have been very easy to do here, but it would also be inadequate because NY CCP does not allow for that.

But it is clear that NY rules do allow for substitute service where the defendant cannot be located and personally served:

"Substituted service is one of the ways to deliver legal papers that start a case. The papers are left with someone else to give to the defendant or respondent and copies are mailed. Substituted service can only be used when personal delivery is tried and the person is not there. But, only the right person can be substituted for the defendant or respondent.

The law says that the person substituted for the defendant or respondent has to be a person of suitable age and discretion. This means that the person is responsible and likely to give the papers to the defendant or respondent. The person does not have to be an adult but should not be a small child. For example, substituting a responsible teenage babysitter may be o.k. Substituting someone who appears drunk or mentally impaired may not be o.k."

https://nycourts.gov/courthelp/goingtoc ... uted.shtml

Moreover the real point of correct service is to ensure that the defendant becomes aware of the action against him, so that he has the right to due process. And in this case it is inconceivable that Andrew is not aware of the action, else why was he hiding from the server?

So any which way I anticipate that the judge will rule proper service. And one way or the other this case will proceed regardless of technicalities like this. Trying to hide from it is very undignified and makes Andrew look cowardly and guilty.

[9873210]

The suit was filed close the the statute of limitations deadline, which has now expired. AIUI if the suit is dismissed on procedural grounds (such as bad service) it cannot be refiled.

Non-cooperation is one plausible strategy for the defense: Make the plaintiff jump through hoops and hope they trip up. The plaintiff should be carefully dotting i's and crossing t's.

[Lootman]

The suit was filed close the the statute of limitations deadline, which has now expired. AIUI if the suit is dismissed on procedural grounds (such as bad service) it cannot be refiled.

Yes but when pre-trial motions are heard on purely procedural matters, e.g. motions to quash or demurrers, then a technical failing does not usually lead to a dismissal. Rather the prosecution is given an opportunity to correct the flaw, whilst the docket number stays the same.

So if the judge here rules that service was incomplete, that can be remedied by performing service in another way. In fact defendants often file every possible pre-trial motion there is, to delay matters and cause confusion and doubt. The vast majority fail and the case continues.

The effective date of such a case is the date of filing and not the date of service, as I understand it.

[9873210]

I can therefore see why Prince Andrew’s lawyers are arguing as to the validity of the service, and I'm surprised that for such a high profile case the agent didn't ensure that Prince Andrew was actually served personally.

But why would that matter? It surely only matters that the method of service is valid in New York

NY rules will include, probably by implication rather than direct reference, the Hauge Treaty et. al.

The Hauge Treaty includes, by reference (IIRC), laws and administrative procedures of the countries involved. So proper service for New York may require complying with details that are not normally thought of as part of the New York civil procedures.

[terminal7]

Interesting to note that Mr Cesar Sepulveda's services encompass:

Litigation and Arbitration
Due Diligence
eDiscovery
Dark/Deep web searches/ISP & IP searches
Bitcoin/Cryptocurrency Investigations
Reputation Management
Defamation and Libel Investigations
Intellectual Property Investigations
Business/Corporate Intelligence
Investigating Fraud
Asset Investigations/Worldwide searches and Freezing Orders.
Surveillance, Profiling and Source Commentary.
Corporate Debugging and electronic monitoring.

Certainly the Prince could help with some Reputation Management

T7

[9873210]

The suit was filed close the the statute of limitations deadline, which has now expired. AIUI if the suit is dismissed on procedural grounds (such as bad service) it cannot be refiled.

Yes but when pre-trial motions are heard on purely procedural matters, e.g. motions to quash or demurrers, then a technical failing does not usually lead to a dismissal. Rather the prosecution is given an opportunity to correct the flaw, whilst the docket number stays the same.

So if the judge here rules that service was incomplete, that can be remedied by performing service in another way. In fact defendants often file every possible pre-trial motion there is, to delay matters and cause confusion and doubt. The vast majority fail and the case continues.

The effective date of such a case is the date of filing and not the date of service, as I understand it.

I believe that would be at the discretion of the judge (and case law and court rules I'm not able to parse). "Dismissal without prejudice" is a possible result of "bad service", one I imagine the defense would strenuously argue for. As you say I'd expect the defense to try everything and hope they get lucky. Or try everything and hope righteousness prevails (depending on your point of view).

[UncleEbenezer]

But why would that matter?

I thought CK's post explained that in some detail, with reference to the Hague Convention. You just have to read beyond the first line or two.

A couple of quotes from this thread might perhaps explain all:

I get the distinct impression that her lawyers were far more concerned with maximizing the media coverage than complying with tedious legal rules.

and

The suit was filed close the the statute of limitations deadline, which has now expired.

[Lootman]

But why would that matter?

I thought CK's post explained that in some detail, with reference to the Hague Convention. You just have to read beyond the first line or two.

A couple of quotes from this thread might perhaps explain all:

I get the distinct impression that her lawyers were far more concerned with maximizing the media coverage than complying with tedious legal rules.

and

The suit was filed close the the statute of limitations deadline, which has now expired.

I have to say that I am surprised at the amount of sympathy and support that appears to exist here for someone who is using their personal position of power and privilege to evade the discovery of truth via the legal process.

[scrumpyjack]

But why would that matter?

I thought CK's post explained that in some detail, with reference to the Hague Convention. You just have to read beyond the first line or two.

A couple of quotes from this thread might perhaps explain all:

I get the distinct impression that her lawyers were far more concerned with maximizing the media coverage than complying with tedious legal rules.

and

The suit was filed close the the statute of limitations deadline, which has now expired.

I have to say that I am surprised at the amount of sympathy and support that appears to exist here for someone who is using their personal position of power and privilege to evade the discovery of truth via the legal process.

I do admire your faith in US law and the belief that it discovers truth! Heroically optimistic?

[Lootman]

I thought CK's post explained that in some detail, with reference to the Hague Convention. You just have to read beyond the first line or two.

A couple of quotes from this thread might perhaps explain all:

I have to say that I am surprised at the amount of sympathy and support that appears to exist here for someone who is using their personal position of power and privilege to evade the discovery of truth via the legal process.

I do admire your faith in US law and the belief that it discovers truth! Heroically optimistic?

I am not passing judgement on the respective qualities of any one nation's legal system. And in fact I also think that Anna Sacoolas should have to face trial in the UK for her crime as well.

My point is more about how people can possibly escape accountability for their actions through technicalities like challenging service, especially when it is quite clear that Andrew is fully aware of this action against him. The fact that he has power, wealth and privilege just makes it worse.

[scrumpyjack]

I have to say that I am surprised at the amount of sympathy and support that appears to exist here for someone who is using their personal position of power and privilege to evade the discovery of truth via the legal process.

I do admire your faith in US law and the belief that it discovers truth! Heroically optimistic?

I am not passing judgement on the respective qualities of any one nation's legal system. And in fact I also think that Anna Sacoolas should have to face trial in the UK for her crime as well.

My point is more about how people can possibly escape accountability for their actions through technicalities like challenging service, especially when it is quite clear that Andrew is fully aware of this action against him. The fact that he has power, wealth and privilege just makes it worse.

In principle I agree with that. I have not seen the evidence in this case, but I suspect it will simply come down to his word against hers. A very dodgy royal vs a possible gold digger. Everyone will have prejudices about this case! The one person who might be able to give knowledgeable evidence, Ghislaine Maxwell, can’t until her case has been decided. If convicted, her evidence would be useless, if found innocent her evidence would be admissible and might clear him. She is being treated by the US ‘Justice’ system as if she were guilty (they don’t seem to do ‘innocent until proven guilty’ – you only go to the country club prison after conviction). Also this is not a criminal case and the US authorities seem to have taken the view that there is not enough evidence to prove Andrew guilty. She is suing for money.

So whilst in principle I agree everyone against whom a court case is raised should submit themselves to the court process, he could quite reasonably take the view that there is a significant chance he would not get a fair trial and lose the case even if what he says is actually true.

I believe the Russian courts have a warrant out for the arrest of Bill Browder. Should he turn up in Moscow! OK it is fair to believe the US courts are a lot fairer than the Russian ones but there is certainly a lottery element to it!

(ps my guess is he did it, and the court verdict could easily be similarly arrived at)

[Lootman]

The one person who might be able to give knowledgeable evidence, Ghislaine Maxwell, can’t until her case has been decided. If convicted, her evidence would be useless, if found innocent her evidence would be admissible and might clear him. She is being treated by the US ‘Justice’ system as if she were guilty (they don’t seem to do ‘innocent until proven guilty’ – you only go to the country club prison after conviction).

In her case I understand why she isn't getting bail. She has consistently avoided the service of legal papers. She went into hiding at a secret location. Her own lawyers claimed to not know where she was, at one point saying that she was in London when she was not. On another occasion she did leave the country the day before she was due to give a deposition.

Given that track record, and the money and connections she has, it seems clear that she is a flight risk. Ergo, held in custody pending trial.

[scrumpyjack]

The one person who might be able to give knowledgeable evidence, Ghislaine Maxwell, can’t until her case has been decided. If convicted, her evidence would be useless, if found innocent her evidence would be admissible and might clear him. She is being treated by the US ‘Justice’ system as if she were guilty (they don’t seem to do ‘innocent until proven guilty’ – you only go to the country club prison after conviction).

In her case I understand why she isn't getting bail. She has consistently avoided the service of legal papers. She went into hiding at a secret location. Her own lawyers claimed to not know where she was, at one point saying that she was in London when she was not. On another occasion she did leave the country the day before she was due to give a deposition,

Given that track record, and the money and connections she has, it seems clear that she is a flight risk. Ergo, held in custody pending trial.

All true, but it seems she is being held in extremely bad conditions in New York rather than a more amenable detention facility. As I recall Bernie Madoff got moved to a comfortable facility only after being convicted. No doubt this is for the convenience of the lawyers and court, rather than the health of the unconvinced accused.

[Clitheroekid]

I can therefore see why Prince Andrew’s lawyers are arguing as to the validity of the service, and I'm surprised that for such a high profile case the agent didn't ensure that Prince Andrew was actually served personally.

But why would that matter? It surely only matters that the method of service is valid in New York. If the method of service bypassed any UK rules for service it will not matter as it will be a New York judge who will decide this based on New York rules. As an example you stated before that simply sending a letter is adequate service in the UK. That would have been very easy to do here, but it would also be inadequate because NY CCP does not allow for that.

But it is clear that NY rules do allow for substitute service where the defendant cannot be located and personally served:

"Substituted service is one of the ways to deliver legal papers that start a case. The papers are left with someone else to give to the defendant or respondent and copies are mailed. Substituted service can only be used when personal delivery is tried and the person is not there. But, only the right person can be substituted for the defendant or respondent.

The law says that the person substituted for the defendant or respondent has to be a person of suitable age and discretion. This means that the person is responsible and likely to give the papers to the defendant or respondent. The person does not have to be an adult but should not be a small child. For example, substituting a responsible teenage babysitter may be o.k. Substituting someone who appears drunk or mentally impaired may not be o.k."

https://nycourts.gov/courthelp/goingtoc ... uted.shtml

Those rules only apply to service of documents within the jurisdiction, i.e. within New York.

As I said earlier, service of US court documents in the UK is governed by the Hague Convention. This mandates that any service of judicial documents in the UK will also need to comply with the local service rules. These are set out in Part 6 of the English Civil Procedure Rules, and personal service means personal service.

It's well established under English law that service on someone (other than a solicitor) who purports to accept documents on behalf of a party - for example the police officer in this case - is not valid service.

It's interesting that in his affidavit of service Mr Sepulveda specifically states (paragraph 5):

That service as described herein is consistent with the provisions for service upon an individual Defendant, under section 6 of the Civil Procedure Rules, as required by the Supreme Court of Judicature in England and Wales.

I beg to differ m'lud! It appears that Mr Sepulveda isn't legally qualified, and I'm surprised that the lawyers didn't entrust service to a firm of London solicitors.

Moreover the real point of correct service is to ensure that the defendant becomes aware of the action against him, so that he has the right to due process. And in this case it is inconceivable that Andrew is not aware of the action, else why was he hiding from the server?

So any which way I anticipate that the judge will rule proper service. And one way or the other this case will proceed regardless of technicalities like this. Trying to hide from it is very undignified and makes Andrew look cowardly and guilty.

Whilst I've no doubt that Prince Andrew is well aware of the claim the rules on service are strict, and there have been hundreds of cases that have been thrown out because service wasn't in accordance with the rules.

Ironically, all this might well have been avoided simply by serving the papers through the post, which, perhaps surprisingly, would appear to be a valid method of service.

Knowing the way the US courts operate I wouldn't be at all surprised if the NY judge rules that the papers were validly served, but if/when a default judgment is obtained I can foresee major problems trying to enforce it in an English court.

[UncleEbenezer]

I beg to differ m'lud! It appears that Mr Sepulveda isn't legally qualified, and I'm surprised that the lawyers didn't entrust service to a firm of London solicitors.

That would be entirely consistent with your earlier point, that the entire case is aimed squarely at the media coverage.

[Lootman]

Knowing the way the US courts operate I wouldn't be at all surprised if the NY judge rules that the papers were validly served, but if/when a default judgment is obtained I can foresee major problems trying to enforce it in an English court.

But would an English court necessarily have to enforce such a judgement? For instance if Andrew has any US assets then those could be seized without any need to bother a judge in England.

Andrew would also have to be careful not to travel to, or hold assets in, other jurisdictions that might be willing to accept a claim from the US.

And in a sense here isn't the point of the case more than just money? It will also place on official record that a judge or jury found Andrew liable for a seriously illegal act, on a preponderance of the evidence? Even a default judgement against Andrew carries the stench of guilt with it, since Andrew will probably not formally contest the claim in court.

I beg to differ m'lud! It appears that Mr Sepulveda isn't legally qualified, and I'm surprised that the lawyers didn't entrust service to a firm of London solicitors.

That would be entirely consistent with your earlier point, that the entire case is aimed squarely at the media coverage.

Of course media publicity is part of the goal here. And why shouldn't it be brought to the world's attention in this way that Andrew is alleged to have performed these acts?

Although we all know Andrew has historically been questionable in his ethics towards such matters since the days of Koo Stark and Randy Andy, I do not believe it was well known until now that he may have had sex with a minor. I certainly did not know that before this case. And that is an act that will usually get you prison time in the US and an entry on the register of sex offenders. Especially if the underage victim may have been groomed or coerced, as is claimed here.