Earlier this year, Mr Bennison complained to Nominet about the bailiffhelpforumarewrongagain.co.uk domain name, and availed himself of their Dispute Resolution Service (DRS), claiming that the domain was an “abusive registration” within the context of Nominet’s T&Cs. Nominet ruled against him and their judgment was recorded here. Anyone who disagrees with a summary resolution such as this one has the right to appeal, albeit at a cost of £3,000 + VAT. Mr Bennison didn’t appeal Nominet’s decision within 10 days as required, instead, nearly 6 months later, he decided to get Nominet’s decision overturned and filed an injunction application against Nominet at the Queens Bench Division of the High Court, to suspend the domain bailiffhelpforumarewrongagain.co.uk.
What exactly is an injunction?
An injunction is an order from the court instructing a party to do or not to do something. There are several types of injunctions:
- Prohibitory, requiring the party to refrain from doing something
- Mandatory, requiring the party to perform an action
- Freezing, restraining a party from removing assets.
Injunctions can also be interim or perpetual. Perpetual injunctions are a remedy usually granted to the winning party at trial, while interim injunctions are temporary orders to regulate the conduct of parties subject to legal proceedings.
Interim injunction applications can be with or without notice to the other party. Applications without notice should only be made in cases where secrecy is essential, such as with search orders and freezing injunctions.
Anyone familiar with injunctions will know that they contain penal clauses and non-compliance constitutes contempt of court, a crime punishable with imprisonment.
Injunctions are a remedy in equity, this means the parties must approach the court with “clean hands”. When you read the sequence of events outlined herein, it will become obvious this wasn’t the case here.
An INTERIM remedy, nothing more
Upon receipt of the order, Nominet suspended the domain. This suspension was not permanent, the application was for an INTERIM injunction, a remedy intended for cases where something must be stopped as a matter of urgency. The domain was registered last December and has been active ever since. His dispute was nearly six months ago. There was no reason for the domain to be suspended as a matter of urgency. Injunctions are a draconian measure that can have serious consequences for the respondent, for that reason, applicants must agree to a number of undertakings when they apply for the order. The most common ones are an undertaking to pay all costs incurred by the respondent as a result of the application, should the court rule against the applicant, and to issue a claim form for an action in court. Interim injunctions are meant to support legal proceedings, not to be remedies in themselves. Once a claim has issued, a permanent injunction is a potential remedy should the claimant succeed.
What’s your emergency?
Because an interim injunction can have serious consequences, the parties must be heard on short notice, on a date referred to as the return date. This type of application puts enormous pressure on the respondent to prepare for the hearing in a matter of days. The return date for this application was Thursday 7th of September, when Mr Bennison faced Nominet’s legal team in court. They had very little time to prepare for the hearing and incurred huge costs, not least because the application for the injunction was made ex parte, that is, without notice to the respondent. There was no reason whatsoever to make such an application, Nominet were not exactly going to run away with the domain name, were they? At the hearing, Nominet stated that, had they been present at the time of the application, they would have been able to knock it in the head, at minimal cost.
Mr Bennison made an emergency application to suspend the domain name when there was no emergency whatsoever. As His Lordship so aptly pointed out, this wasn’t a case of stopping the presses to prevent publication. The site had been up and running for over 6 months. There was no emergency, no grounds for the application, even less grounds for making it without notice.
Form N16 is used to apply for an interim injunction. This form has a little tick box asking whether the application raises Human Rights issues. This box was left unticked, but that does not mean the application didn’t raise such issues. In fact, Nominet’s legal representative said that, had they been given notice of the application hearing, they would have been able to oppose the application on these grounds. Note what section 12 of the Human Rights Act states:
12 Freedom of expression.
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied—
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;Human Rights Act 1998
Who are Nominet and what do they do?
Nominet Limited are the company that provide all the .uk domain names, including .co.uk. That’s all they do. They don’t offer domain registration services, that’s done via third party registrars. They don’t offer privacy services, that’s up to third party companies. Nominet can order the transfer of domain names to their rightful owners when their experts find that a registration has been abusive, this is based on the domain NAME itself, not on the purpose of the registration. If you register a name similar to someone else’s business name or brand, it could constitute an abusive registration. From the start, Mr Bennison misunderstood the meaning of the term “abusive registration”, thinking that it referred to a domain used to criticise others. That’s not the case, Nominet are only concerned with domain NAMES, not website content.
Why Nominet? Flawed logic
Mr Bennison’s arguments centered around the idea that Nominet were responsible for him not being able to find out who owned the domain in question, therefore they should be held responsible for any damages arising from the use of the domain. As it happens, Nominet had nothing to do with this, it was the registrar who also offered an optional domain privacy registration service. Mr Bennison argued that Nominet allowed these private registrations and also that he was unable to contact the privacy company due to them using an invalid PO Box address. Earlier in the year, Mr Bennison had issued a complaint against one of the directors of the registrar and privacy company. If he was able to contact them at that time, he should have been able to do the same now.
Furthermore, Nominet had no data other than that supplied by the registrar, in this case, that the domain was registered to Identity Protect Ltd. They had previously told Mr Bennison that, if he needed to obtain the identity of the registrant in order to issue proceedings, he could apply for a Norwich Pharmacal order against Identity Protect Ltd. Mr Bennison ignored this recommendation and went ahead against Nominet.
A Norwich Pharmacal Order is a type of court order obtained to find out the identity of a party to be subject to legal proceedings. The order cannot be applied for merely to satisfy curiosity, they have to be linked to proceedings. Like injunctions, these orders are an equitable remedy and thus, granted at discretion. The principles of equity, such as approaching the court with “clean hands” must also be observed. Because the respondent is often an innocent party, there has to be an undertaking by the applicant, to pay any costs and losses incurred by the respondent as a result of the order. The judge clearly explained to Mr Bennison that, by applying for such an order, he would be agreeing to this undertaking, and failure to comply would result in him being in contempt of court.
Interim injunctions are not meant to be applied for willy-nilly, they are meant to be used in the context of legal proceedings against the respondent. When the court granted Mr Bennison the interim injunction, he was also ordered to issue a claim. In the absence of any real cause of action against Nominet, Mr Bennison decided to issue a claim for over £10,000, for alleged damages incurred as a result of Nominet allegedly allowing registrants to conceal their identities and use false addresses. His particulars of claim stated that he was suing Nominet instead of the domain owner, as they were preventing him from finding out who he was. His Lordship struck out the entire claim of his own volition, as you cannot just sue one party instead of another!
A costly exercise in futility
Nominet were quick to point out that the injunction application was neither proportional nor useful. It was described as “using a sledgehammer to crack a nut”, and a useless sledgehammer at that. Nominet carefully explained that all they did was to sever the link between the domain name and its IP address, which did nothing to alter or remove the actual website content. The content was, and still is, on a remote server, totally outside Nominet’s control. The content could be republished under another domain.
His Lordship made his judgment dismissing the interim injunction application and awarded costs in Nominet’s favour. Nominet provided a costs schedule for £30,000. It was a costly exercise, having to respond to an emergency application without notice in very little time. His Lordship awarded Nominet £26,000. Mr Bennison claimed to be unable to pay and announced that he would have to go bankrupt as a result. He also said he was no longer in a position to apply for a Norwich Pharmacal Order against Identity Protect Ltd, as he could not comply with one of the undertakings, which was to pay any costs incurred by the respondent should the case go against him. This isn’t the small claims track where you can usually limp your way through the legal process with impunity, I say usually, because costs CAN be awarded in the small claims track when the conduct of one of the parties is deemed to be unreasonable.
As this was only an injunction application, the judgment was short, sweet and to the point.