Lansdown v Maxan, Court of Appeal - Nominet UK Dispute Resolution Service, January 11, 2007,  DRS 4258
|Resolution Date:||January 11, 2007|
|Issuing Organization:||Nominet UK Dispute Resolution Service|
|Actores:||Lansdown v Maxan|
Nominet UK Dispute Resolution Service
DRS Complaint No 04258
Decision of Independent Expert
Complainant: Hargreaves Lansdown
Respondent: Jason Maxan
Address: omitted from WHOIS service
The Complaint was validated by Nominet on 29 November 2006 and sent to the Respondent on that date by post, fax and email to the respective contact details held by Nominet. Nominet informed the Respondent that it had 15 working days, i.e. until 21 December 2006, to respond to the Complaint.
By 22 December 2006, no formal Response having been received from the Respondent, Nominet wrote to the Complainant's representative confirming that no Response had been filed and invited the Complainant to request an Expert Decision.
The Complainant paid the fee within the relevant time limit and thereafter I was contacted by Nominet and asked to confirm that I was able to provide an Expert Decision. I responded to Nominet confirming that I was able to provide a decision.
On 9 January 2006, the matter was duly referred to me, Simon Chapman, (``the Expert'') for an Expert Decision.
Outstanding Formal/Procedural Issues (if any)
The Respondent has not submitted a formal response to the Complaint. From the papers that have been submitted to me by Nominet, it is apparent that they have sent the Complaint to the Respondent using the contact details held on Nominet's Register.
When registering a .uk domain name applicants agree to be bound by Nominet's Terms and Conditions. Clause 4.1 of those terms and conditions states that the registrant of the domain name shall:-
``4.1 give and keep us notified of your correct name, postal address and any phone, fax or e-mail information and those of your contacts (if you appoint any, see condition 5.2). This duty includes responding quickly and correctly to any request from us to confirm or correct the information on the register''
In addition paragraph 2(e) of the Dispute Resolution Service Procedure (the ``Procedure'') states that:-
``e. Except as otherwise provided in this Procedure or as otherwise decided by us or if appointed, the Expert, all communications provided for under this Procedure shall be deemed to have been received:
i. if sent by facsimile, on the date transmitted; or
ii. if sent by first class post, on the second Day after posting; or
iii. if sent via the Internet, on the date that the communication was transmitted;
iv. and, unless otherwise provided in this Procedure, the time periods provided for under the Policy and this Procedure shall be calculated accordingly.''
In light of the above it is my view that Nominet has done everything that it is obliged to do to bring the Complaint to the attention of the Respondent.
I now move on to consider the consequences of the Respondent not submitting a response.
The Procedure envisages just such a situation and provides in Paragraph 15 that:-
``c. If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure or any request by us or the Expert, the Expert will draw such inferences from the Party's non compliance as he or she considers appropriate.''
I am not aware of any exceptional circumstances to explain why the Respondent should not have responded to the Complaint, and as such believe it appropriate to proceed to a Decision.
I will draw such inferences from the Respondent's failure to respond as I think appropriate, but must keep in mind that there may be a number of reasons why a respondent might fail to serve a response, for example that they have nothing useful to say.
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