sneezycheese

Seeing as it's a subject that's been talked about at length on this forum previously, I thought it might be of some interest to know a little bit about what actually a Judicial Review is and its associated processes...

http://www.hmcourts-service.gov.uk/cms/1220.htm

grandin

its all hush hush at the moment cause a domain in the drs is still subject to transfer but not been transferred....

Lee

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Jac

And this seems like the crucial bit:

2.1 Judicial review is the procedure by which you can seek to challenge the decision, action or failure to act of a public body such as a government department or a local authority or other body exercising a public law function.

Nominet is not a public body or government department. It seems fair and reasonable therefore to say that you would have to persuade a court that Nominet is a public body before proceeding to Square 2.

Regards
James Conaghan

grandin

However, if Trading Standards fail to act on information given to them AND the judge on a so called case overules a DRS Appeal...then what?

Lee

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Jac

Trading Standards cannot 'fail to act' on information given to them but just because information is given to them (or the DTI or OFT) doesn't mean they will find in favour of the complaint. They have strict guidelines to follow in these matters and have to be fair to both complainant and company. If there is no breach of company law and/or if a company has not failed in its duty of care to its customer, then they may decide not to take the complaint any further. That's their duty. I would assume they would inform the complainant (and company) in writing of their decision and the reasons why.

Regards
James Conaghan

grandin

DRS Decisions have to be based on law...clearly contained in the t&c's...ie. it says that the t&c's will apply unless they become unenforceable under english law.

In cases under Trading Standards they have to be based on english law.

courts overturning drs decisions.......would this not effect the validity and fairness of the contract?

Lee

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Jac

Lee,

I think you'll find DRS decisions are based on DRS policy as she is written at any given time.

I was only pointing out that each complaint presented to Trading Standards will go through the system, but that just because a complaint is made, it doesn't automatically mean it will be upheld. If it is upheld then I'm sure Trading Standards will instruct the company being complained about to do certain things; but if it is not found to be of substance, then the company would presumably be vindicated. But that's up to Trading Standards and their own procedures. I can't outguess a government agency.

Courts overtturn court decisions on appeal, but it doesn't affect the validity of the courts or their legal procedures. The whole purpose for having an appeals process is just that; so that people who disagree with a verdict or decision can appeal it. That said, the quick answer is, I don't know what the courts would find in any given situation, but as far as I am aware, to date they have not overtturned a DRS decision. Phones4u/phone4u is a case in point.

However, if a court did overtturn a DRS decision, I'd say it would be prudent for Nominet to immediately look at the cause and effect and adapt or modify its own DRS policy and/or procedure to take the court ruling into consideration. That's what any community spirited organisation should do as a matter of course in my humble opinion. However, this is all pure conjecture right now, because it hasn't yet happened (as far as I am aware).

Regards
James Conaghan

Whois-Search

Nominet "thinks" it doesn't apply to them:

http://www.nominet.org.uk/disputes/courtcases/iTunes/

Interesting they use the term "think"..........

However the last Judicial Review case was rejected:

http://www.nominet.org.uk/digitalAss...ial-Review.pdf

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grandin

Of course the decision have to be based on law...you are getting confused. The contract does say rights not necessarily enforceable under law BUT that was referring to things like peoples names as domain names. Therefore where the law has or hasnt the drs must abide by the law. Prime exmaple is the ghd case....some may say that the original expert should have done the same as the appeal experts ie. return a verdict......the law hasnt decided so as an admin function we shouldnt decide. Some may say the original decision wasnt enforceable under english law cause it aint decided!!!

With the hush hush case we will have to wait and see but that might be another case!

Who's going to review all the 400 plus drs cases to make sure they were all enforceable under english...are you saying Trading Standards aren't going to?

Lee

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Jac

Why is it interesting they use the term "think"? If a judge did not pay too much mind to the other party's contention that a judicial review was warranted (against Nominet) and the case was found it Nominet's favour anyway, wouldn't YOU "think" it didn't apply to you? I think the word think is entirely appropriate. No ifs, buts, or maybes, I just think Nominet is right to think it.

For the sake of clarity Clause 39 of the Terms and Conditions says:

This contract is made under the law of England and any court proceedings must be in the English courts. If you are a consumer in Scotland, Wales or Northern Ireland, we will accept your local law and courts. Enforcement of a court order may be done in any law or court system that is relevant.

I'd be happy for Trading Standards or any other statutory body to clarify whatever it is people are seeking clarification on but Nominet complies with Company Law and similar complaints have been made previously. I have said before, if Nominet were any other company, people would just treat it like the supplier it is per se, and leave the governance of the company to its members (QUA shareholders) and board. C'est la vie.

Regards
James Conaghan