Are Nominet decisions the last word in domain name disputes?

What are the chances of a British court getting to review a domain name panel decision? Last June, in Michael Toth v Emirates [2011] EWPCC 18, Judge Birss QC (Patents County Court, England and Wales) held that the decisions of a Nominet-appointed expert or appeal panel in .uk domain name disputes were subject to review by a court. This ruling followed the filing by Emirates -- a high-profile airline -- of a complaint under the Nominet Dispute Resolution Service rules against the registration of emirates.co.uk by Michael Toth. It transpired that Toth had registered this domain in 2002 and had made some use of it. The appointed expert rejected Emirate's Nominet DRS complaint but, on appeal, a Nominet panel found the registration abusive and ordered the transfer of the domain name to Emirates. Toth then applied to the Patents County Court for, among other things, declarations that (i) the domain name was not an abusive registration within the Nominet DRS Policy and that (ii) the decision against him had been reached improperly, on the basis of bias. Emirates sought to have Toth's application application struck out: in the airline's view a Nominet decision of this nature could only be challenged under the law relating to ‘expert determination’, if the expert asked or answered the wrong question or there was evidence of bias.

While the application for the declaration had not been properly reached was struck out, the application for a declaration that his domain name was not abusively registered was not. In reaching this decision Judge Birss QC fastened his attention on clause 17.c of the DRS Procedure which read:

If the expert makes a Decision that a Domain Name registration should be cancelled, suspended, transferred or otherwise amended, we will implement that Decision by making any necessary changes to our domain name register database after ten (10) Days of the date that the Parties were notified, unless, during the ten (10) Days following the date that the Parties were notified we receive from either Party: 

i. an appeal or statement of intention to appeal complying with paragraph 18, in which case we will take no further action in respect of the Domain Name until the appeal is concluded; or  

ii. official documentation showing that the Party has issued and served (or in the case of service outside England and Wales, commenced the process of serving) legal proceedings against the other Party in respect of the Domain Name. In this case, we will take no further action in respect of the Domain Name unless we receive:  

A. evidence which satisfies us that the Parties have reached a settlement; or 

B. evidence which satisfies us that such proceedings have been dismissed, withdrawn or are otherwise unsuccessful.

This provision was intended to allow an aggrieved party such as Toth to challenge the outcome of the Nominet DRS Procedure in court: Nominet's terms neither precluded nor limited the court's jurisdiction to hear disputes that had been brought before the Nominet DRS Procedure. and the expert determination was not therefore conclusive. Might this open the floodgates to litigation over Nominet rulings? The judge conceded that this was a matter that a court should consider when deciding whether to allow a review in any given case.

Emirates appealed against the refusal to strike out the application relating to abusive registration, while Toth cross-appealed in relation to the striking out of the application relating to an improper decision. This morning Mr Justice Mann, sitting in the Chancery Division in [2012] EWHC 517 (Ch), allowed Emirates' appeal -- though this judgment does not address the cross-appeal. In a 21-page decision that has not yet appeared on BAILII, but which you can read here, he reversed the decision of Judge Birss QC and struck out Toth's application for judicial review after having to contend with some carefully crafted submissions from his counsel, Jonathan Turner.

This Kat hasn't yet had a chance to absorb fully the analysis of this morning's decision, but he confesses that he was very much persuaded by the decision of Judge Birss QC when he first read it -- so he'll have to read Mann J's judgment carefully to see where he went wrong.

A katpat goes to Philip Roberts (counsel for Nominet, interveners in this action) for the tip-off.