Complainant: St Mary's Horse Refuge
Country: GB
Respondent: Carl Holbrough
Country: GB
The domain name in dispute is st-maryshorserefuge.co.uk ("the Domain Name").
This is a rather unusual contested case in which I gave a full, reasoned, interim decision on 11 May 2006. That decision is attached and sets out the usual chronology of the proceedings, the background facts, the parties' respective contentions and my preliminary conclusions. These were based on the stated assumption that the individual who submitted the Complaint (a Mr Digby Saunders) properly represented the Complainant, which is an English registered charity. However, the submissions and evidence from both parties led me to question whether this assumption was correct and therefore I was unable to make a final decision. Instead, I invited the Complainant, by a properly authorised person or persons, to confirm or deny its support for the Complaint and to submit documentation to establish that such person(s) was/were properly authorised to represent the Complainant. I also gave the Respondent the right to respond.
I have now received further submissions and documentation from both sides.
On 16 May 2006 I received a non-standard submission from the Respondent in which he stated that it takes four days to call an emergency meeting of the Executive Committee of the Complainant but that, due to resignations in the past year, the Executive Committee currently has only four members (Digby Saunders, James Saunders (Digby Saunders' son), Catherine Balding (his daughter) and Chris Holbrough (the Respondent's wife)), despite a requirement in the charity's governing document to have at least five members, so 21 days would be needed to call a meeting to elect new members. Therefore the Respondent suggested that I should extend the time limit that I had given "in order to be fair to Mr Saunders so he can at least put it to the board". He annexed a copy of the Constitution of the Complainant, as adopted on 21 December 2003, in order to support his submissions.
Mr Saunders for his part did not ask for more time, but instead on 17 May 2006 submitted a letter dated 13 May 2006 purporting to come from the Trustees of the Complainant (named as C. Balding, C. Davill and J. Saunders), stating that Mr Saunders was acting under their direction in making the Complaint and that they wished the Domain Name to be transferred. With the letter was a further copy of the Constitution and an undated charity trustee declaration form bearing the signatures of Helen Cattano, Catherine Balding, Caroline Davill, Jacqui Shinn, Digby Saunders and James Saunders.
This second copy of the Constitution is different from that submitted by the Respondent. In particular, it is dated 17 May 2004 rather than 21 December 2003 and – although the substantive provisions are the same – the markings throughout the document are different. However, the signatures at the back are identical, not just being of the same people and in the same order, but the signature pages on the two versions of the Constitution apparently being duplicates. I do not think that it is necessary to be a forensic expert to conclude that one of these pages is copied from the other or both copies are of the same third document.
Mr Saunders added that: (1) contrary to the Respondent's contention, no trustees had resigned in the last year; (2) this case was fully discussed at the AGM on 7 May 2006 (though without giving detail of these discussions); and (3) Chris Holbrough never was a trustee. I note here that this assertion is contrary to the records held at the Charities Commission (see paragraph 10.19 below).
On 19 May 2006, the Respondent made further detailed submissions, contending that:
(1) the Trustee declaration form produced by Mr Saunders had been completed after the May 2006 AGM, meaning that those trustees said to back these proceedings had not been trustees at the relevant time;
(2) Caroline Davill had resigned, as evidenced by a copy of an e-mail from her;
(3) The Respondent's copy of the Constitution had been obtained from the Charity Commission within the previous three weeks and there was no explanation for the difference between that and the copy submitted by Mr Saunders.
(4) No-one other than Digby Saunders and Chris Holbrough had ever previously submitted their trustee declaration to the Charity Commission.
Finally, on 24 May 2006, the Complainant submitted a further non-standard submission, comprising the minutes of the charity's AGM held on 7 May 2006, which note that Mr Saunders outlined the "progress towards transferring the website from Carl Holbrough" and the agreement "that this was necessary and that legal action should be considered in the event of him continuing his harassment of the Charity". The Minutes are unsigned and, although there is a note of a request made that everyone sign the minutes book, that has not been produced.
I am faced with a totally unclear situation in which two individuals are calling each other liars and in which the documents do not seem to support the facts exactly as stated by either of them. There are also some unexplained oddities in the papers which, rather than clarifying the situation, give rise to further questions over the constitution of the Complainant and those who are properly authorised to represent it.
This case has reached the stage where the only way to establish who is telling the truth and who is not, and whether the documents are genuine, would be to cross-examine witnesses and examine the original documents. I would also require legal submissions as to the proper constitution and decision making process of a charity. This is beyond the scope of what the DRS is adapted for and I decline to exercise my technical power to conduct an oral hearing or call for original documents, since I do not believe that this would necessarily take matters any further without full court powers.
On that basis I must refuse the request for transfer of the Domain Name.
Since my refusal is based on the fact that it has not been established to my satisfaction that the person bringing these proceedings is in fact the named Complainant, I note here that the usual rule precluding a second complaint between the same parties in respect of the same domain name should not automatically apply. However, without evidence that stands up to scrutiny in relation to proper authorisation, another Expert may find it no more possible than I to resolve the matter. I strongly urge Mr Saunders and the Respondent to settle their differences without the need for further recourse to Nominet's dispute resolution service or the courts.
Anna Carboni
26 May 2006