The memories of discovery people have been stirred by mention of the Hague Convention in the context of the purported service of civil proceedings on Prince Andrew. This deliberately non-technical article (as in service is off my usual patch) does at least help you to distinguish between different Hague Conventions and, as an aside, brings in the other Convention and its interplay with the GDPR.
If you ask Google about “Prince Andrew” and “service”, you will be taken to pages about his service as a Royal Navy helicopter pilot in the Falklands War, where one of his roles was missile decoy. More recent pages, however, cover the service of US proceedings brought by Virginia Giuffre, which may prove more career-defining than his role in seeing off Exocets.
I misunderstood two things about this story when it first came up. The first was to assume that these were criminal proceedings; it is in fact a civil claim in which the plaintiff alleges that she was sexually assaulted by the Duke of York (same chap, has various aliases) when she was a teenager. Secondly, I pictured a man in a mac lurking in the bushes outside a Scottish castle before leaping out and thrusting some papers at a guardsman in full scarlet with a bear’s skin on his head. The purported service was more mundane than that, involving the suggestion by the “head of security” that the papers be left at the main gates of the Royal Lodge at Windsor.
The BBC has a straight-up-and-down version of the service story. Over to New York where Giuffre’s lawyers faced arguments from the Prince about the validity of service. The judge dealt with them robustly, as appears from an article headed Federal Judge Skewers Lawyer for Prince Andrew for Making Service ‘More Complicated’ Than It Is (as an aside, the American Devotion To Capital Letters is extremely wearing, and an overlooked contributor to Anglo-American misunderstanding; why does “for” get no capital but “It” and “Is” do?).
The judge’s view is partly that there was good service on Prince Andrew anyway but, further (I summarise), that they are going to get him sooner or later anyway, so why take picky points now? I rather agree.
It would be fair to say that few people in the UK care very much. Prince Andrew got credit at the time for his navy service, but the ensuing 39 years have not yielded anything which endears him to the nation. His nick-name “Air Miles Andy” derived from his frequent comfortable travels at the expense of other people, sometimes on well-promoted trade missions but sometimes, it seems, to shady islands with rather less publicity. Until now.
I am no expert in the rules of service of US proceedings. The UK’s lawyers have taken to Twitter to explain variously that it is all very complicated or not at all complicated. Whichever is right, we can be reasonably sure that the proceedings will be deemed served sooner or later. Perhaps Prince Andrew can use some of those air miles to revisit New York.
What caught my eye, and makes this a fit subject for a blog devoted to discovery, is the reference to Article 10 of the Hague Convention, with a US court saying that it can rely on its own rules without regard to the Convention. The convention here is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters . A little digging around produces a 2019 article headed Hague Service Convention Article 10 methods: make sure they’re valid!. All this is a bit OTT if you are merely mildly interested in what happens to Prince Andrew, but worth knowing if you actually need to serve proceedings abroad. Note the proviso “the State of destination does not object”.
It is a different Hague Convention which concerns discovery lawyers, the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. That was central in the well-known (to the aforesaid discovery lawyers at least) decision in the Aérospatiale case of 1987. The court took against the idea that US routine pre-trial proceedings should be subordinated to the “actions or, equally, to the inactions of foreign judicial authorities”, while accepting that “international comity” demanded respect for the laws of any foreign state.
I have shed enough virtual ink on Aérospatiale over the years. Fortunately, Clifford Chance has saved me having to do it again, with an interesting article about the US Supreme Court’s decision in Vesuvius USA Corp. v. Phillips. The context is important anyway to those interested in the interplay between the long-running jurisdictional debate about cross-border discovery and the GDPR.
As I have said, I decline to wade into discussions about the validity of service in Giuffre’s case while Twitter’s lawyer population is divided on the subject. I doubt that the Prince’s lawyers will achieve more than a modest delay. The next step, presumably, will be the assertion that Giuffre has already contracted out of her right to bring proceedings. Only then will we move on to the more interesting matters, like evidence.