[gnso-rpm-wg] "Lack of cause of action" followup (URS proposals #18, #19, #20)

[George Kirikos]

Hi folks,

Just to followup on our call, in regards to proposals #18, #19, and #20:

https://community.icann.org/download/attachments/93126760/URS-Proposal-18.pdf?api=v2
https://community.icann.org/download/attachments/93126760/URS-Proposal-19.pdf?api=v2
https://community.icann.org/download/attachments/93126760/URS-Proposal-20.pdf?api=v2

attempting to solve the "lack of a cause of action" problem, whereby a
registrant attempting to bring a court action to challenge the outcome
of an adverse URS/UDRP would be denied a decision on the underlying
merits in the courts, as the case would be tossed for lack of a cause
of action:, there were questions regarding whether the Yoyo.email case
was an outlier, etc., i.e. whether there was any real issue.

First, it wasn't just one case in the UK. There were others (albeit,
not involving the UDRP, but the very similar Nominet DRS), see:

https://www.lexology.com/library/detail.aspx?g=4f1b77cc-8474-4e9f-b02d-f6547ef7490f

"The High Court also clarified that it did not have jurisdiction to
hear appeals of uniform dispute resolution policy (UDRP) or Dispute
Resolution Service (DRS) decisions.
....
In relation to the claimant's request for declaratory relief, the
court held that the UDRP did not "afford any jurisdiction" to the High
Court to "act as an appeal or review body" from the domain name
dispute resolution panel's decision in August 2014. The judge held
that clause 4k of the UDRP (which states that the parties are not
barred from taking the matter to court after its conclusion) did not
give rise to a separate cause of action in favour of the claimant, nor
give the court any jurisdiction to act as an appeal or review body in
relation to the UDRP decision. This is in line with the previous case
of 'Toth' which similarly held that the court did not have
jurisdiction to hear appeals of DRS policy decisions. (By way of
reminder, Nominet's DRS policy is applicable in relation to '.co.uk'
domain names whilst WIPO's UDRP is relevant to various other gTLDs,
such as '.email' in this case.)"

So, there's "Toth", which is mentioned too. Toth v Emirates is discussed at:

https://www.brownejacobson.com/about-us/news-and-media/published-articles/2012/04/toth-v-emirates

https://www.theregister.co.uk/2012/03/22/nominet_rules_mean_abusive_domain_name_registrations_finding_cannot_be_reheard_says_high_court/

"The High Court has struck out an application for a declaration that a
domain name was not an abusive registration, and found that the
question of whether or not a registration is abusive is one for the
expert only."

Here's a third example, Patel v. Allos Therapeutics:

https://www.edwincoe.com/blogs/main/court-confirms-principles-applied-domain-name-cases/

"In Patel, the unsuccessful respondent at UDRP commenced proceedings
in the Chancery Division and was met with an application for striking
out, which was granted, the judge holding that the proceedings
disclosed no cause of action and were totally without merit. Referring
to clause 4(k) of the UDRP the judge in Patel had noted that this
clause speaks of “referring the dispute” to the court for “independent
resolution” but had made it clear that this cannot confer a
jurisdiction on the court which it does not otherwise have, and that
the claimant must demonstrate some independent right of action."


Furthermore, this is also apparently a problem in Australia (Paul
Keating had mentioned this in the IGO PDP, although I don't have any
case citations -- perhaps he'd share).

So, to deny the existence of this problem in the face of actual court
precedents does not seem credible to me, especially when you have law
firms openly stating (as per the most recent link above) that:

"The High Court has confirmed that (1) unsuccessful respondents in
UDRP or DRS proceedings have no right of appeal to the English
Court..."

The three solutions proposed address an actual problem for
registrants, namely access to the courts, that were part of the "grand
bargain" that was made when these policies were adopted. The DRP
policies from ICANN were never intended to be the "final word."

I also refer folks back to the original thread in November 2017 on this topic:

https://mm.icann.org/pipermail/gnso-rpm-wg/2017-November/002585.html
https://mm.icann.org/pipermail/gnso-rpm-wg/2017-November/date.html

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/