DRS question

[sneezycheese]

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.

...This is indeed tremendous praise for the good man himself – Beasty you should be proud of such an accolade! – Even with ALL the Legal muscle at their disposal (legal team/’experts’/etc) and that they get paid for this work, they ask you Beasty to solve the problem for them. – I (and it seems Nominet) are in ore of your greatness – congratulations! :mrgreen:

PS: I hope they're not asking for a freebe though!

Regards,

Sneezy.

 

[Beasty]

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.

I accept some people might try to abuse the rule - but it would not work. If a registrant wrote an unsolicited letter to a complainant marked "without prejudice" and said "Give me £50 grand for the domain" then it would not be a "without prejudice" communication - a genuine bi-partisan effort to settle the dispute - and so it could be seen by a Court and it could be seen by an Expert under the DRS.

However if the parties engage in genuine attempts to settle "without prejudice" - which might involve discussing paying a premium for a domain - it should not be open to the Court or the DRS to open those communications. As it stands - a complainant can try to draw a request for payment from the registrant - and then use it as evidence of an abusive registration.

I don't need to engage in defining the without prejudice rule - nor should you. Unless something clearly is or is not covered by it - the party wishing to have it waived should get a Court order. That's what the Courts are there for - it is not the business of a private ADR system to be re-writing the law - or trying to apply anything at all complex in a limited paper based system.

However as I said, the Experts generally only look at the DRS as simple when examining the Complainants case. By that I don't mean only regarding the "without prejudice" rule - I mean in a wider partial sense. Like I said, find me an example of where there has been generosity shown for a registrant (when faced with a large complainant) and I will list you a dozen that have bent over backwards the other way.

The rule is there for a good reason - namely encouraging early settlement of disputes. I guess though that is the definition - if something is not a bona fide attempt to settle then it is not w/o prejudice. If it is, then it is w/o prejudice.

You can look at the WH Smith case to see how it has been applied to a domain name case. You can find a precis of the Court of Appeal finding - and perhaps a useful explanaition of what I was trying to say above on Tony Willoughby's firm's website here.

Incidentally, it seems Matthew Harris acted for WH Smith in that case - so presumably he comes informed by his own experiences from practice when deciding DRS cases on the topic. It would be nice to see whoever acted on the other side of these cases appearing in equal numbers on your panel - to have some genuine balance.