7 January 2022 | Comment | Article by Alan Collins
Whatever the outcome of the application by Prince Andrew’s lawyers to get the case dismissed on the basis of Virginia Giuffre’s settlement agreement with Jeffrey Epstein, it brings into question the legal value of non-disclosure agreements.
Settlement and non-disclosure agreements are commonplace. Parties in litigation who reach an agreement to resolve their disputes often enter into them, usually with legal advice, to record what has been agreed and frequently to avoid misunderstandings let alone further disputes.
Such agreements intended to be water tight may not always be so. Their validity can be questioned if considered to be contrary to public policy for example if it was considered to be a means to avoid a serious crime from being reported, or if one of the parties entered into it under duress or lacked capacity.
Courts are reluctant to set aside or render void what is a contract or legal agreement entered into by parties, who clearly did so having made an informed decision, and particularly so with legal representation.
In cases of sexual abuse where a victim has entered into such an agreement, which in my experience is quite un-common, the effect or consequence is not to prohibit reporting to the police, on the contrary the wording is usually clear to enable that to happen, but to keep confidential the amount of compensation payable. The payer’s motive is to prevent publicity of the fact that compensation or an amount has been paid so as to avoid further claims.
The intent of the payer can be very simple of course namely settling a legitimate claim, but on the other hand it may be more complex. It could be a commercial decision having weighed-up the cost of litigating versus the cost of settling. The point being that care needs to be taken in assuming the parties motivation in settling.
In my experience such a agreements in sexual abuse cases are relatively uncommon and this is because the crime or alleged crime cannot be supressed by such means, and what can the payer do if the victim breaks the terms agreed? In theory he/she could be sued for breach of contract but that involves more expense.
In the Giuffre case we have such an agreement which on the face of it appears comprehensive, and does not prohibit disclosure of any criminal allegation to the authorities, but the interesting question is whether it is enforceable by a third party?
Epstein is not around to enforce, and so would his estate do so? The fact is that it is a third party who is not a party to the agreement which is effectively seeking to do so, and not the estate…. Arguably the wording is such that only the estate can.
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