DRS question

[domaingenius]

If discussions are held without prejudice those documents can be withheld from the Court. Is it the same case with DRS ?. It would seem odd that DRS should ignore without prejudice status but knowing DRS I suppose anythings possible.



DG

 

[sneezycheese]

...D.G. - Nothing is 'safe' in a Nominet DRS - 'a law unto themselves', one might say.

The important bit from the DRS Policy:

6. Without Prejudice

a. Documents and information which are 'without prejudice' (or are marked as being 'without prejudice') may be used in submissions and may be considered by the Expert except that the Expert will not consider such materials if:

i. they are generated within Informal Mediation; or

ii. the Expert believes that it is in the interests of justice that the document or information be excluded from consideration.

Regards,

Sneezy.

 

[olebean]

DG

Nominet decided that without prejudice status does not apply for DRS.... in other words all letters headed without prejudice can be used against you!


Regards


OB

 

[sneezycheese]

...This is one of the reasons I say 'Nominet Sucks' - Why? - Well it's all about respect, and it's clear that this is one thing Nomiet has very little of in regard to the judicial process and the way it conducts itself and its 'experts' in regard to its registrants and mirroring the law in any way.

Not what you'd expect from what is now a British Institution!

Higher moral fibre is required - but it will never happen unless forced to do so - and to that end... Ed knows EXACTLY what I mean, as he's part of the problem!

Nominet is devious and tells lies!!! - Why can I say this so easily? - because it's true - Nominet will not sue me - because I'm telling the truth! :twisted:

You are of course right D.G. - anything is possible in a DRS.

Regards,

Sneezycheese.

 

[grandin]

Expression Of Truth

If I am to give a true expression of truth it would go like this:-

I do not believe Nominet would do any wrong on purpose. HOWEVER, they have empowered so called experts who are funded by unknown sources....maybe the experts are funded prodominately by trade mark holders????

The balance needs to be addressed in the drs review IF not I WILL take Trading Standards to court

Lee

 

[domaingenius]

...D.G. - Nothing is 'safe' in a Nominet DRS - 'a law unto themselves', one might say.

The important bit from the DRS Policy:



Regards,

Sneezy.

Thanks for that info. I just wonder if that position of DRS i.e. that Without Prejudice communications can be used in drs, could be legally challenged. Will have to look in to that as it seems to go against UK laws and also commonsense because it means that you do not dare even speak with the other side ,at all which forces both parties into a drs situations. It is about time Nominet took a long hard look at the drs. I wonder too what the position would be if you made agreement with the enquiring party (i.e. enquiring about the domain) that " we agree that any without prejudice communications will not be referred to/within the DRS or disclose to any third party without order of a competent Court" . If they then referred to them they would be in breach of said agreement and then when you appealed to the Court the Court may then decide in "your" favour.

DG

 

[domaingenius]

If I am to give a true expression of truth it would go like this:-

I do not believe Nominet would do any wrong on purpose. HOWEVER, they have empowered so called experts who are funded by unknown sources....maybe the experts are funded prodominately by trade mark holders????

The balance needs to be addressed in the drs review IF not I WILL take Trading Standards to court

Lee

Lee, perhaps it could be construed as an "unfair trading term" or similar ?Might be worth a shot with the Trading Standards .

DG

 

[retired_member6]

Mediation should come before, I handled mediation myself quite well recently - well I'll feel better when they front the money.

It's not actually without prejudice that makes domains go to DRS it's the pathetic, stupid and often inane inclusion of two terms, the 'above costs statement' that means you can't deem a domain an asset therefore sell it and one other term that escapes me right now. Nominet need to remove those with haste.

I think the other one is the selling of a domain to a competitor with some silly wording that makes a DRS seem more easily won when in reality it aint, that should be looked at as well.

 

[grandin]

trading standards

DG I put a complaint into trading standards about 5 months ago. They do have strict turn round times BUT they sent me a reply a few weeks ago. The statement I will not fully disclose at this time BUT they:-

Appologised for taking along time to reply

and

made a incorrect assumption

My actions:-

Trading Standards are yet to address my complaint and they are grossly outside their own turn round times. Trading Standard's parent organisation DTI is a member of the Nominet's PAB. They have been observing Nominet for years and haven't reported to Trading Standards any possible breaches.

Based on the above and my documents I am not fully convinced that Trading Standards have the knowledge to take the required action ie. If they don't protect my consumer rights then I will make a complaint or take trading standards to court ie. ask the court to inforce trading standards to follow the ec directive.

I am sure the DRS will be put right but we cannot forget all that has gone before.

I still doubt that the t&c's allows a transfer under the drs. When a drs decision is sent to the losing registrant I dont think (must check) it says we will cancel your contract within 10 days....i think it says we will transfer the domain name...

Under the t&c's Nominet should cancel the contract. If the contract is then cancelled then there is nothing to transfer. The contract does not then allow Nominet to reallocate names to specific parties because its own t&c's state first come first served.

For Nominet to state that certain conditions apply in certain circumstances without detailing which applies in which is misleading to me. And the clause dealing with breaking the drs does not specify under what circumstances a certain remedy applies.

Lee

 

[sneezycheese]

Thanks for that info. I just wonder if that position of DRS i.e. that Without Prejudice communications can be used in drs, could be legally challenged. Will have to look in to that as it seems to go against UK laws and also commonsense because it means that you do not dare even speak with the other side ,at all which forces both parties into a drs situations.

...Let us know how you get on - it would be of great interest if a challange like this could be brought, in particular under any 'consumer' laws.

It is about time Nominet took a long hard look at the drs.

...Agreed - but I fear that the review may be used to 'close the gaps' as it were and make things more watertight, rather than 'fair'.

I wonder too what the position would be if you made agreement with the enquiring party (i.e. enquiring about the domain) that " we agree that any without prejudice communications will not be referred to/within the DRS or disclose to any third party without order of a competent Court" . If they then referred to them they would be in breach of said agreement and then when you appealed to the Court the Court may then decide in "your" favour.

...A worthwhile strategy that I would advise to do in 'any event' - I've yet to see if this strategy has been tested yet - does anyone know if it has and if so, what the result was?

Regards,

Sneezy.

 

[EdPhillips]

In light of the post above by Sneezycheese, I feel I have to make a response. Clearly that post is defamatory, and needlessly offensive. I think that the normal course of action for a company in this position would have been to ask the moderator to remove the post and, quite possibly, to sue the poster.

However, Nominet does not intend to pursue that: if Sneezycheese wants to have that view, then so be it. We obviously disagree, and I think that it is a shame that he felt the need to immediately resort to abuse and allegations when there is a perfectly sensible answer to the question. This sort of behaviour does nothing to raise the level of the debate, and reflects badly on this forum, in my view. In particular it is a shame to resort to personal name-calling about individual staff members.

The logic behind the decision not to apply the without prejudice rule in the DRS was explained (and consulted upon) in the 2004 DRS consultation: Dispute Resolution
and has been covered in other posts in this forum.

As you all know, in the DRS there is a mediation stage, which is confidential and provided by us. This is the opportunity, within the system, to settle a dispute on a without prejudice basis. In many ways it is better than the court, because we are providing the mediator for free.

As you will also know, one of the main forms of 'abuse' that the DRS is designed to combat is the classic cybersquatting tactic of demanding money for a domain name. If the Without Prejudice rule applied, then (even with a completely trademarked name) you could simply mark this demand for money as "without prejudice" and then demand that it not be used in the DRS - yet clearly, that offer to sell was part of the abuse, not part of the solution. This tactic was a genuine problem at the time, and was solved by the change, as far as I know.

I would also say that the Without Prejudice rules in the DRS do allow experts to exclude materials which they do not think it would be in the interests of justice to include. This was designed to allow experts to ignore genuine without prejudice correspondence if needed, as there will be cases where it is clearly fair to do so.

This change is therefore two years old, and has been operating without particular comment all this time. I am therefore surprised that it is suddenly being raised in this way, and being presented as such a major flaw in the system. If this really is a practical problem for you, then I would be interested to hear suggestions for a simple, understandable rule that could replace it, but meet the same objectives. If this is not a genuine issue for you, I would urge you to take a look at the tenor of your response, and consider whether it reflects worse on us or you.

 

[sneezycheese]

In light of the post above by Sneezycheese, I feel I have to make a response. Clearly that post is defamatory, and needlessly offensive. I think that the normal course of action for a company in this position would have been to ask the moderator to remove the post and, quite possibly, to sue the poster.

However, Nominet does not intend to pursue that: if Sneezycheese wants to have that view, then so be it. We obviously disagree, and I think that it is a shame that he felt the need to immediately resort to abuse and allegations when there is a perfectly sensible answer to the question.

...It wasn't meant to be personal Ed, more of a general comment overall on how I feel your company behaves, which surely you can understand. I have strong feelings about 'certain behaviour', of which I will contact you about 'off line'. I will warn you that I may choose to publish the results of my findings and the details of your response, so I would suggest when you reply you bear this in mind.

As you will also know, one of the main forms of 'abuse' that the DRS is designed to combat is the classic cybersquatting tactic of demanding money for a domain name. If the Without Prejudice rule applied, then (even with a completely trademarked name) you could simply mark this demand for money as "without prejudice" and then demand that it not be used in the DRS - yet clearly, that offer to sell was part of the abuse, not part of the solution.

...Please correct me if I'm wrong - but doesn't BOTH parties have to AGREE to 'Without Prejudice' communications? :???:

Regards,

Sneezy.

 

[domaingenius]

Just out of interest ED ,exactly what part is defamatory,and not fair comment or true ?. Not taking sides just would be interested to know. As for defaming a company ,I doubt it, unless it was more specific and pointed and said something like "all the employees of XYZ are liars" then may be able to ,if it wasnt true or fair comment.

DG

 

[domaingenius]

In light of the post above by Sneezycheese, I feel I have to make a response. Clearly that post is defamatory, and needlessly offensive. I think that the normal course of action for a company in this position would have been to ask the moderator to remove the post and, quite possibly, to sue the poster.

However, Nominet does not intend to pursue that: if Sneezycheese wants to have that view, then so be it. We obviously disagree, and I think that it is a shame that he felt the need to immediately resort to abuse and allegations when there is a perfectly sensible answer to the question. This sort of behaviour does nothing to raise the level of the debate, and reflects badly on this forum, in my view. In particular it is a shame to resort to personal name-calling about individual staff members.

The logic behind the decision not to apply the without prejudice rule in the DRS was explained (and consulted upon) in the 2004 DRS consultation: Dispute Resolution
and has been covered in other posts in this forum.

As you all know, in the DRS there is a mediation stage, which is confidential and provided by us. This is the opportunity, within the system, to settle a dispute on a without prejudice basis. In many ways it is better than the court, because we are providing the mediator for free.

As you will also know, one of the main forms of 'abuse' that the DRS is designed to combat is the classic cybersquatting tactic of demanding money for a domain name. If the Without Prejudice rule applied, then (even with a completely trademarked name) you could simply mark this demand for money as "without prejudice" and then demand that it not be used in the DRS - yet clearly, that offer to sell was part of the abuse, not part of the solution. This tactic was a genuine problem at the time, and was solved by the change, as far as I know.

I would also say that the Without Prejudice rules in the DRS do allow experts to exclude materials which they do not think it would be in the interests of justice to include. This was designed to allow experts to ignore genuine without prejudice correspondence if needed, as there will be cases where it is clearly fair to do so.

This change is therefore two years old, and has been operating without particular comment all this time. I am therefore surprised that it is suddenly being raised in this way, and being presented as such a major flaw in the system. If this really is a practical problem for you, then I would be interested to hear suggestions for a simple, understandable rule that could replace it, but meet the same objectives. If this is not a genuine issue for you, I would urge you to take a look at the tenor of your response, and consider whether it reflects worse on us or you.

Right lets deal with the real and serious issues now. Ed, you will know the purpose of without prejudice communicayions I am sure so lets not rehearse that. You keep relying on the review of 3 years ago,lets forget that and start with a clean slate on this issue alone. Surely you can see that IF the parties could receive an approach and respond accordingly on without prejudice basis and maybe negate the need for the party to go to DRS, it would be a good thing ?. What you say about the abuse of without prejudice is not something matters , and you seem to be assuming automatically that the complainant is right and the respondent wrong before we even start DRS proceedings.
Innocent until proven guilty is the way it should be.
So it goes like this. You Reg money .co.uk . Someone has a TM for money but was ONLY granted the TM on the basis that the letters money were of a particular shape and different colours. Now lets say they write to you and say "we have a TM for the domain you own". You like the name money.co.uk and its valuable ,so you say "Without Prejudice , we would accept £250,000 in payment for the domain" . Why should the without prejudice status be removed from said letter , and why should it be used against you. You cannot pick and choose what without prejudice letters you allow and what ones you dont. Say that tesco's wanted their name from someone. Why should a without prejudice letter lose its status if they use that to try and settle the matter ,i.e. if Tesco's enter into the without prejudice discussion then that's their choice. Maybe the rule should be that if someone (a complainant responds to a without prejudice letter THEN DRS MUST exclude the letters and any follow on ones !!. .i.e. both parties willing accepted to discuss without prejudice and so cannot then use it is DRS.THAT would be a good solution.

DG

 

[grandin]

abusive

Ed you state 'that offer to sell was part of the abuse, not part of the solution.'

If the offer to sell was part of the solution is still would be considered abusive under the terms of the drs IF the asking price was more than out of pocket expenses. Therefore are Nominet helping abuse with mediation?

I know of one case where a name was sold as part of mediation for £1500.

If mediation involves money then Nominet shouldn't get involved. I would like to know if Nominet pass on offers from registrant to complainant?

Lee

 

[grandin]

Innocent until proven guilty is the way it should be

I have said this before and DG has reconfirmed 'Innocent until proven guilty is the way it should be'

If the experts are relying on the Citigroup and One Million cases then so be it BUT those cases are bit different.

The citigroup guy reg'd the name within days of the merger annoucement

The Marks and Spencers name was offered to Marks and Spencers

A case like Mercer or bounce is not like the cases above!!

Lee

 

[retired_member6]

Ed you state 'that offer to sell was part of the abuse, not part of the solution.'

If the offer to sell was part of the solution is still would be considered abusive under the terms of the drs IF the asking price was more than out of pocket expenses. Therefore are Nominet helping abuse with mediation?

I know of one case where a name was sold as part of mediation for £1500.

If mediation involves money then Nominet shouldn't get involved. I would like to know if Nominet pass on offers from registrant to complainant?

Lee

Of course the mediators do, that's what mediation is, finding a resolution without going further.

 

[grandin]

non paid brokers

non paid brokers?

 

[Beasty]

The logic behind the decision not to apply the without prejudice rule in the DRS was explained (and consulted upon) in the 2004 DRS consultation: Dispute Resolution
and has been covered in other posts in this forum.

As you all know, in the DRS there is a mediation stage, which is confidential and provided by us. This is the opportunity, within the system, to settle a dispute on a without prejudice basis. In many ways it is better than the court, because we are providing the mediator for free.

As you will also know, one of the main forms of 'abuse' that the DRS is designed to combat is the classic cybersquatting tactic of demanding money for a domain name. If the Without Prejudice rule applied, then (even with a completely trademarked name) you could simply mark this demand for money as "without prejudice" and then demand that it not be used in the DRS - yet clearly, that offer to sell was part of the abuse, not part of the solution. This tactic was a genuine problem at the time, and was solved by the change, as far as I know.

I would also say that the Without Prejudice rules in the DRS do allow experts to exclude materials which they do not think it would be in the interests of justice to include. This was designed to allow experts to ignore genuine without prejudice correspondence if needed, as there will be cases where it is clearly fair to do so.

This change is therefore two years old, and has been operating without particular comment all this time. I am therefore surprised that it is suddenly being raised in this way, and being presented as such a major flaw in the system. If this really is a practical problem for you, then I would be interested to hear suggestions for a simple, understandable rule that could replace it, but meet the same objectives. If this is not a genuine issue for you, I would urge you to take a look at the tenor of your response, and consider whether it reflects worse on us or you.

OK Ed - you asked. The rejection of "without prejudice" in the DRS took place prior to the review you refer to. In practice, it happened in the Scooby Doo appeal - long before it appeared in the rules. it is definitely better that it is enshrined in the rules - rather than simply known to those who are sufficiently informed about DRS decisions. The reasoning in Scooby Doo includes the reason you set out above.

The problem with the argument that you put forward is that such an attempt to cybersquat would not in fact be protected by the "without prjudice" rule in any event. If someone sends an unsolicited letter headed "without prejudice" demanding an extortionate amount of money, that does not mean that it is a "without prejudice" communication. You know that full well.

However if two parties are seeking to negotiate a settlement and one says "how much do you want" or "I am prepared to offer £x" - if the other party is prohibited from responding with any sort of figure that might be construed in the (very limited) paper based DRS system as a justification to claim an abusive registration under Policy Rule 3a(i)(A) - then the system is preventing genuine attempts at an early settlement.

By the time one reaches mediation in the DRS - both parties have had to complete their pleadings - which either takes up a lot of time or (often in the case of corporate complainants) a lot of money. The argument that the DRS is cheap and informal and so does not need to engage with "complex" rules like the "without prejudice" rule is a red herring. The DRS is increasingly being recognised and used by corporates with expensive legal representation - and they are using it for good reason.

As for leaving it to the Experts - find me an example where an Expert has found that the requirements of a respondant are too complex and I'll find you a dozen or more where that flexibility has been shown only to the benefit of legally represented Complainants when they fall short of what is required.

Why has Nominet - driven by the views of IP lawyers - decided it needs to reinvent the wheel. The law of "without prejudice" works perfectly well - and when it doesn't the courts address the issue and refine it. Leave well alone I say - and apply it to the DRS.

While you are here Ed - could you be so kind as to answer the questions I posed on this thread - Jay suggested I asked you...

http://www.acorndomains.co.uk/nominet-general-information/11520-egm-2-a-2.html

Thanks in advance!

 

[EdPhillips]

Just to pick up on some of the points raised:

1. However sensible/fair you think the court's "Without Prejudice" rule is, it was clear prior to the formal rules change (and particularly so prior to Scooby Doo) that (a) people did not understand it and (b) it was being abused. Something had to be done, and of course I am open to the idea that what was done was not the right thing - although the fact that this topic seemed to drop off everyone's radar for two years was a hint that what was done was not bad.

2. The Court's 'without prejudice' rule has some difficulties, in that documents marked "Without Prejudice" aren't necessarily covered by it, and documents that have no such markings can be covered by it. It would probably be interesting to see if anyone (and I suspect that Beasty has the best chance of doing this) can write a (a) brief, (b) simple and (c) easy to explain to a layman explanation of W/P that could be applied to the DRS. I'm sure it can be done, but it might help us all to see a draft.

3. Just to clarify something that was raised above, a document is not necessarily "Without Prejudice" just because one party thinks that it isn't/shouldn't be (or it wasn't generated by agreement). Having said that, it clearly helps (as in everything) if both parties view correspondence in the same way. In the courts there can be separate hearings before a judge about the W/P status of a document. Even if W/P did apply to the DRS, the expert would still have to decide whether a particular document was, or was not, genuinely W/P - which is not significantly different from where we are now.

4. If you settle a case without coming to the DRS, then the issue of whether the DRS would be prepared to look at those documents is moot. If you are having genuine "Without Prejudice" conversations it is open to the Expert to treat those as genuine and ignore them.

Finally, I'd be interested to hear about any cases where this has been a real issue with this.