Guidance Notes - CD Rom & Error

[fred]

...I also agree with you that 15 days is a short and potentially impossible period to deal with a complex complaint - especially as you say if there is a delay or even if the recipient is away or otherwise unable to see the complaint for all or part of the period.

I'm no legal expert, (or for that matter even a legal amatuer!) but surely that could be challenged in court?

Let's take an example of an 'average' domain registrant, not unlike some of my customers. He (or she) decide to go away on holiday or business for a month or so and come back to find their domain has been drs'ed they 'failed' to respond and it has been taken to the expert.

If the decision went against the registrant, surely they would have a case due to not being given a chance to 'defend' the complaint?

 

[A-Wing]

I'm no legal expert, (or for that matter even a legal amatuer!) but surely that could be challenged in court?

Let's take an example of an 'average' domain registrant, not unlike some of my customers. He (or she) decide to go away on holiday or business for a month or so and come back to find their domain has been drs'ed they 'failed' to respond and it has been taken to the expert.

If the decision went against the registrant, surely they would have a case due to not being given a chance to 'defend' the complaint?

And say in that month they were away they got an unexpected bill (electricty for sake of argument), should they then bring about legal action for being cut off because they didn't get anyone to collect or forward their post for them?

Any solicitor will tell you ignorance is no defence, especially when the terms are clear.

 

[Beasty]

And say in that month they were away they got an unexpected bill (electricty for sake of argument), should they then bring about legal action for being cut off because they didn't get anyone to collect or forward their post for them?

Any solicitor will tell you ignorance is no defence, especially when the terms are clear.

Not really. Any solicitor would tell you that there is a difference between deemed and actual service. Proceedings served are deemed to have been received unless the deemed recipient can show that in fact they were not - so first class post is deemed service, handing it to the individual is actual service. A judgment in default can be set aside if deemed service is shown not to have been effective - thus denying the defendant a chance to present his/her case.

Also if you get a untility bill while you are away there are quite a few steps and quite a long time passes before the utility is cut off. There are good reasons for that. If you have a supplier that will cut you off in 15 days if you don't deal (in detail) with them, then I suggest you change suppliers!

Yes the DRS and its 15 days is in the Nominet T&Cs. Since they are the only .uk game in town, it's really a bit trite to say people have voluntarily accepted them - since they have no choice if they want a .uk domain. Unlike utilities, you can't change suppliers. That people register with them on monopoly basis - under those T&Cs - doesn't necessarily make them right.

 

[A-Wing]

Not really. Any solicitor would tell you that there is a difference between deemed and actual service. Proceedings served are deemed to have been received unless the deemed recipient can show that in fact they were not - so first class post is deemed service, handing it to the individual is actual service. A judgment in default can be set aside if deemed service is shown not to have been effective - thus denying the defendant a chance to present his/her case.
.

In that case could you then tell Nominet that you have received the paperwork but need more time to prepare a case? Or at least file a partial response stating there is more to follow?
I don't know the Nominet rules on DRS to be honest, its something that has never happened to me so I have never looked into it, although I know the information is there.
When someone tried to take me to small claims court earlier this year I asked for a 2 weeks extension to prepare a defence which was accepted as I was only given 14 days to start with. It was nothing to do with domains and the other guy dropped his case before I even sorted a defense.

 

[Beasty]

In that case could you then tell Nominet that you have received the paperwork but need more time to prepare a case? Or at least file a partial response stating there is more to follow?
I don't know the Nominet rules on DRS to be honest, its something that has never happened to me so I have never looked into it, although I know the information is there.
When someone tried to take me to small claims court earlier this year I asked for a 2 weeks extension to prepare a defence which was accepted as I was only given 14 days to start with. It was nothing to do with domains and the other guy dropped his case before I even sorted a defense.

Courts give you 14 days to either file a defence or acknowledge service saying you are going to file a defence - in which case you get 28 days to file a defence. And as you say, there is also flexibility built into the system - since their ultimate object is to serve justice.

DRS says 15 days to file your response - if you are late that is your tough luck - unless you can persuade them to agree that it is an "exceptional case(s)". That's the only way they will extend a time limit. I don't know what effect "I was on holdiay for 2 weeks when the notice arrived" would have - but I wouldn't like your chances!

 

[retired_member6]

I tell you mate, the whole lot of 'em are solicitors - it's a £3 million gravy train with no sign of slowing down - (I've got more to say on that as well - I bet you have). If I've played the game and I've lost or it gets chucked out then fair enough but they're solicitors, they know the game, it's why they're a solicitor in the first place 'cause they love the bloody argument and the best part which is of course winning. :mrgreen:

I asked for an extension twice, on day one firstly on the basis the complainant had four months of evidence and secondly on the basis I only had 14 days and not 15 and plus their (nominet) claim that the electronic email bounced seems a little strange as it's a fully working account and all other emails appear to get through ok. And regardless of terms a person has every right to question them, before after or during.

There are holes in their guidelines, I know because I've found them and they hampered my defence. If I get penalised for that then again fair enough, it's their game aint it but those holes in their guidlines will still be there and I will make damn sure people know about them in the future, until which point nominet feel free to amend those guidlines and make it all more man on the street.

I don't get pushed around easily, I found this DRS to be quite amusing in the end and an experience although distressing and awkward at first, if I lose I lose, don't see how I will though unless trade mark suddenly got a new law or if I broke a nominet term or on the basis that I got confused in the final hour and the second final submission ended up being late then that's life, my life anyway.

Any solicitor will tell you ignorance is no defence.

And with regards solicitors I think you'll find the opposite is true when a question is asked of them. If it's in policy and terms you'll get quoted policy and terms and if it isn't in the policy and terms then they're independent and can't comment. Ignorance is no defence? ignorance is defence.

especially when the terms are clear

Yes, well there you have it, policy and a solicitor isn't going to argue the set in stone policy for the body they work for whether they would wish to or not.