This page deals with:

• the standard of proof needed in DRS cases,
• why you can still lose cases if the other side does not respond,
• how the DRS compares to the courts,
• the relationship between the DRS and legal proceedings,
• why the DRS is binding on the parties; and
• how the law on "without prejudice" correspondence is handled in the DRS.
  

The "balance of probabilities" test of proof

The complainant in the DRS has to prove their case on "the balance of probabilities". This means that they must show that their case is more likely than not to be the true version. Of course, when assessing whether this has been done, the Expert also takes into account the respondent's submissions.

Complainants who fail to do this have usually failed to make a very detailed complaint, or have failed to provide evidence. We cannot emphasise enough how important it is to explain your complaint or response fully, and attach relevant evidence.

Why complainants do not just automatically win cases if the respondent does not respond

It is not the case that the complainant automatically wins in no-response cases. For example, see:

• DRS 00066 Fiat S.p.A and WDOT Internet Limited (fiatfinance.co.uk and others)
• DRS 00692 City id Ltd, Icon Media Lab Ltd. (cityid.co.uk) and
• DRS 02735 equazen.co.uk.
  

There are several reasons why Nominet must charge the complainant for a decision, even when a respondent does not respond:

• Bearing in mind the above, Nominet cannot pre-judge why a respondent may not have responded to a complaint. Reasons may include absence or ignoring a complaint because they feel it spurious, or because they think that the complainant has failed to prove his case on the balance of probabilities (see above for what this means). Only an independent expert is empowered to draw conclusions from a respondent's failure to respond.

• Nominet must pay an independent expert to prepare a decision. Nominet does not have the authority to charge an unwilling respondent for this, nor to award costs to a successful complainant. Complainants are of course free to use the courts in preference to Nominet's service, but will typically find this more expensive even if they are successful. The entire £750 +VAT is passed to the independent expert.

• Nominet, as a neutral body, cannot take a view on whether a respondent is "cyber-squatting".

Comparing the DRS and the courts

The DRS does not seek to replace the courts and you may wish to take independent legal advice if uncertain which system is more suitable for your dispute. However, often the DRS will prove to be quicker, cheaper and may offer greater scope for amicable settlement through mediation, which is successful in over 55% of cases where it is employed. A further 11% of cases settle amicably before mediation and there is no charge for initiating a complaint, up to the end of informal mediation. Do not forget that in court costs orders can be made, which can be very expensive. However, there are some cases which are too complicated for the DRS (for example, very difficult contract cases, or cases on technical points of trade mark law) which have to go to court.

The DRS and legal proceedings

Either party to the DRS can start legal proceedings at any time. If we are shown issued court documents for legal proceedings related to the domain name, Procedure 20(a) applies and the DRS is suspended. This usually means that it is frozen at its current point,  all time limits stop, and we will not implement expert's decisions.

We need to be kept up to date about the progress of legal action. When it is over, the DRS will restart, but if the parties have reached a settlement (or a final court judgement) the usual effect is that the DRS is then closed under Procedure 19.

Why the DRS is binding on both parties

The complainant agrees to be bound by the rules of the DRS when making a valid complaint. The registrant of a domain name is bound by the rules of the DRS at the time of registration, as part of Nominet's Terms and Conditions

Without Prejudice

"Without Prejudice" is a legal label used on letters and emails which are part of a genuine attempt to settle a legal case. Without Prejudice material can (in most cases) be kept secret from the court, so that parties can talk about ways of avoiding litigation without ruining (or 'prejudicing') their case.

However, in cybersquatting cases, the offer to sell a domain name for an exorbitant about of money is actually often the main evidence of abuse - yet it could be hidden behind the "Without Prejudice" label. In addition, the DRS offers a free confidential mediation stage.

So, in the DRS the only material which the expert will not see are the documents and file notes generated as part of the DRS mediation. All other documents, whether or not they are "Without Prejudice" documents, can be sent to the expert. The expert can choose to ignore this material if it is in the interests of justice to do so, but this is the expert's choice.