Nominet Wins Appeal Against WeightedVoting Member

It's been two weeks since a member of the group, along with another member of the group acting as Counsel lost a court hearing, and there has been no update on the website. Has the towel finally been thrown in? Alternatively, they may not want to keep members updated with news that contradicts their claims. You'll have to make your minds up on that one. As it happens, it was left to Nominet to release a statement to members, and they did so yesterday.

Just to recap, for two different reasons, I have little time for the two people involved in this claim and who act for weightedvoting.uk. I will try to put those aside and remain objective, but it's best to be upfront that my views could be biased.

"In July last year, a claim was initiated in the County Court for a refund of membership subscription fees. This is an update on that legal process.

We did not receive the Claim Form (which is sent by standard postal service) and so did not respond to it. This enabled a default judgment to be entered since no defence had been filed within the Court’s deadline to respond to a claim. There is a process to ‘set aside’ a default judgment, and once we were aware of the Claim Form we applied to set aside the default judgment using this standard process. It should be noted that simply allows for the Claim Form to be defended, and does not amount to a determination of the legal merits of the case brought against Nominet.

The application to set aside the default judgment was successfully made on 31 January 2024 at the Cardiff County Court.

We want members to know that Nominet always seeks to avoid unnecessary legal costs. As part of that effort we wrote to the claimant on seven separate occasions outlining why we felt that a Court hearing was unnecessary. However, the claimant continued to oppose the application, despite warnings that he could end up becoming liable for Nominet’s wasted legal costs.

A copy of the Court’s judgment is attached for reference below.

Should the claimant wish to continue with his claim then naturally Nominet will be forced into continuing to incur further costs as the litigation continues.

We will keep members updated as and when there are any significant developments."

Today, Nominet posted an update on their Community forum announcing that they had been successful in their attempt to have the previous default judgment set aside. This was in relation to a judgment that a member of WeightedVoting.uk had managed to obtain back in July/August 2023. WeightedVoting.uk immediately published two statements referring to the fact that the judgment proved they had merit and Nominet didn’t have a legitimate argument, even going as far as to say;

“However, we now have a court judgement that confirms that Nominet has no right to charge joining and subscription fees. That is a seismic shift in the ground on which the company’s constitution is founded. It has to be brought to the members attention before they can be asked to make an informed decision.

Even if, as your Community statement suggests, you apply to set aside the judgement, it remains in force unless and until you make and prevail in an application; which, for the reasons I have set out above, I think is very unlikely to be successful.”

WeightedVoting

This was always an extremely disingenuous view to take, and even a misleading one to make to other members. A default judgment is little more than a judge casting the faintest of eyes over it to check that your claim was filed correctly (it wasn't) and you have the most basic of legal arguments. To claim that this default judgment confirmed Nominet had no right to charge joining fees was extremely silly, something that has diminished WeightedVoting’s points on other issues. Nominet were always going to appeal, and were almost certainly always going to be successful, so in the end you'd eventually have to retract everything you claimed anyway. Although it may have been these erroneous claims that convinced some members to vote against the 2023 article changes, so maybe these two got what they wanted. Just how members now feel about being misled by WeightedVoting is yet to be seen.

The old saying "King for a day, fool for a lifetime" comes to mind. Reading back the claims WeightedVoting made about that default judgement now looks very foolish, infact everyone involved should be a little bit embarrassed with themselves.

Statement 1

Statement 2

Nominet didn’t receive the claim form, so they couldn’t submit a defense. That’s the crux of the matter. None of us would consider it fair if we didn’t receive the paperwork and lost a judgment, but defendants get the chance to appeal and Nominet did.

The only minor concern I had about Nominet’s appeal is that they didn’t file it for 2-3 weeks. According to some legal sites on the internet, filing the appeal within 2-3 weeks is cutting it fine. The Court expects rapid responses. But given the nature and seriousness of the claim, Nominet had to put together an in-depth defense, which wouldn’t have been quick or simple to produce before they appealed. Under these circumstances, 2-3 weeks was unlikely to concern the Judge.

In my opinion there were only ever 4, maybe 5 questions the Judge was going to ask.

1. 1) Did Nominet receive the claim form from the Court?

2. 2) Were Nominet negligent in any way that could have increased the chances that they didn’t receive it?

3. 3) Did the Judge believe what Nominet was telling him/her?

4. 4) Does Nominet have a reasonable defense to the overall claim?

5. 5) A possible fifth question would be: Did the Claimant follow the correct pre-action protocols?

I've yet to speak to anyone that significantly disagrees with me on any of this.

1. 1) There is no evidence that Nominet received the claim form. There is no recorded delivery signature. I think the Judge was always going to accept that they didn’t.

2. 2) Nominet explained their standard protocol for legal documents, and assuming that they couldn’t explain where things had gone wrong. The Judge, not being able to rule out a failure with Royal Mail, was again always going to side with Nominet. If they did receive the docs and gave a reasonable explanation where things went wrong, and the Judge accepted it, then it is a done deal. Without knowing it's tough to say.

3. 3) There was no reason for the Judge not to believe Nominet. Did anyone really expect her to announce that they were being misleading? It would also defy common sense. For what good reason would they have torn up the Court Documents and thrown them away? As they are here now trying to defend the claim, the only good reason would have been to kick the production of their defence down the road for a few weeks, which doesn’t make sense, especially landing them with a default judgement right before a crucial AGM vote on those articles.

4. 4) It was always clear that Nominet had a reasonable defense. They had been looking into this for almost a year.

5. 5) I’ll not go into this too much. Unlike others, unless it’s to defend yourself, it’s not good drills to start digging out private chats. Needless to say though, the claimant could have helped himself avoid this mess.

Nominet were successful and the judge found in their favour. The appeal was allowed and the default Judgement set aside. They were also awarded part of their costs - totalling £10,000 - ouch!

Essentially, this restarts the clock, and the case will follow its normal path. I don’t know for sure, but I suspect Nominet will take two actions. First, they will request for the claim to be moved to Oxford or London, which is their right as the defendant. Second, they will try to have it moved up to a higher court. They’ll argue that the claim is too complex and serious for the small claims court to handle. Given that one side has already tried to use it as justification for over a thousand members to claim back 6 years of their membership fees (amounting to many millions), they’ll likely succeed in convincing a small claims judge that this is too serious. Plus, if the claimant objects, do the costs start racking up again from that point? He's already been hit for £10,000, could easily hit another £10k in the blink of an eye.

Once it's moved up to a higher court (Multi-Track at least), the costs involved could be astronomical. If the claimant loses, it could be life-changing. What was once a free hit for £900 in a local court has now turned into him putting all of his assets and his future on the line to win just £900.

I urge the claimant to drop everything right now. Start talking to Nominet's legal team, can do it without prejudice and get it wound down immediately. Whether he does or not is another matter. If he keeps taking the same advice from the same people, then he’s in trouble. As I said at the beginning, I have little time for him, but I’d never want to see someone's life ruined over this. It’s time for him to let go.