My Statement Regarding 2023 Nominet NED Election
Outline Chronology
July 2022 – I passed Reed screening for 2022 NED election. I had also previously raised the question of whether the board was acting ultra vires in making screening a requirement for a candidate to stand, since no reference to it is contained in the Nominet’s Articles and Election Bye Law under which the election is carried out.
June 2023 – I was proposed and seconded and applied to stand in the 2023 Nominet NED election. I questioned whether I needed to do the screening again, since the one I did in 2022 was less than 12 months previously. Nominet asserted that I had to do the process again, even though that would make me the only candidate having to do so twice. Rather than pick a fight, I started the screening process again.
I then had difficulty logging into the Reed system. Once that was resolved, I was also unable to access or copy across information from my previous application.
27 June – I called Joel Lewin at Reed and left him a message. Joel called me back. Amongst other things, Joel apologised that the Reed software is unable to allow transfer of data between the two applications and says that will be fixed going forward. He confirmed that Reed had most of the data required already. There is discussion of what new documents may be required. It is agreed that those such as mortgage statements can be provided. The question of additional invoices to show consultancy work was raised. I said nothing had changed, but I did not have client authority for any other invoices to be provided. I agreed to ask for consent to maybe provide more, if possible. As far as I was concerned, the issue had already been dealt with and there was no change since last year. At no point was I under the impression that the screening would be contingent on whether or not I could obtain any further invoices, which I made clear was not even certain at this time. It was never stipulated that any further invoices would definitely be forthcoming or were a requirement. I indicated that he would otherwise proceed with my application with the documents I had either already submitted or was about to submit online.
27/28 June – I completed the online screening process and uploaded all of the additional documents I was relying on. The online screening is a detailed and lengthy process. The software does not allow you to proceed to the next screen unless all sections of a page have been completed and all necessary documents uploaded.
28 June – Joel from Reed emailed me, stating
“Thank you for completing your screening application form via Xchecker.” [Emphasis added]
He added that further documents may be requested by Reed to complete their part of the screening. However, the part under my control was acknowledged as having been completed at this stage, two days before the deadline Nominet seeks to rely on.
He further added
“As we discussed yesterday, if you can provide us with a copy of your most recent invoice once you get permission from your client, we’ll upload this to the system.” [emphasis added]
That request reflects the contingent nature of possibly obtaining a further invoice, but does not in any way suggest that it is a requirement nor that there is any deadline if a document can be produced.
3 July – Email from Joel Lewin to me:
“We have now covered off all periods except for your self-employment. Please could you update us with how you are doing with procuring your most recent invoice?”
If there was a 30 June deadline for this document, why were Reed asking for it (in a very relaxed way) on 3 July? That’s 5 days after I completed the online screening (with client invoices attached) and 3 days after what is now being claimed to be a deadline for this document, which at that time was neither a requirement nor something that was certain to be made available.
I replied the same day, stating
“I am hopeful of getting a client to agree to my sharing an invoice. One question is whether only you see it or is any of the information shared with Nominet?”
6 July – Three days later a reply from Joel Lewin
“I’ve queried this with Nominet, as I remember we had a discussion about whether we sent a final report or just the certificate of completion last time you were vetted. I will let you know what they come back with.”.
This reply, which took three days to come, indicates that both Nominet and Reed were aware of the status of the screening and were discussing what documents should be shared with Nominet. This tardiness delayed the provision of the final invoice requested.
7 July – Despite the outstanding uncertainty about what documents would be shared with Nominet, I wrote to Joel Lewin the following morning
“My understanding was that no specific information would be shared with Nominet and that you would simply either be saying pass or fail to them. I think it is fair to say that there is a significant trust issue between many members and the organisation and I would be very concerned to learn if anything more than that was being passed on. As you know, this is an election, not a conventional job application process. I look forward to hearing from you on that.
In the meantime, I have a client’s consent to pass on a fairly recent invoice to you. This is done on the express condition that it is for your eyes only and none of the detail will be passed to Nominet. I think this brings to an end any information that you require from me.”
The final example invoice was attached to that email.
10 July – Three days later, email from Joel Lewin to me:
“We’ve currently not sent any documents over to Nominet for yourself.
I will upload the invoice to your file. Would you be able to advise if this is the most recent one you can provide, as this only takes us up to February this year?”
I replied the same day
“As I mentioned, many clients are highly suspicious of Nominet. This is the most recent one I have obtained consent for. I haven’t changed my situation since then and would hope that would be sufficient, especially given the information already on file.”
Joel Lewin replied the same day
“Nominet have reached out and confirmed they require a Final Report to be sent over which includes the full details of your vetting.
They have stated that they are happy for redacted invoices and references to be used on this report for the activity history with the clients’ names and details redacted and the full versions only seen by Reed.
Would you be happy to redact any details on the invoices you are not happy to be seen by Nominet and we will check with your referee for your voluntary role that she is happy to give explicit permission for Nominet to view the reference supplied?”
I replied
“I am currently in the Scottish Highlands on holiday. I will be back in London in about 2 or 3 days time. I’m not in a position to deal with this until then.
I would say that (without checking the details of the election pack) the impression I had was that the screening was being outsourced to you and only the outcome would be handed over to Nominet. I say that without having access to the documents sent out and want to check it first.
If only the outcome of the screening was being sent to Nominet, could you please confirm my current status?”
11 July – Joel Lewin replied to me :
“Many thanks for coming back to me. Currently we have nothing adverse with your screening.” [Emphasis added]
That last sentence is the only thing said by Reed to me in the last email in this chain.
There is no indication whatsoever that there is any problem with my screening or anything further required. I received no other communication from Reed, apart from an email from Joel on 14 July, telling me he was going on annual leave and who to contact if I had any queries in his absence.
The email of 11 July, confirming that there was “nothing adverse” on my screening, is more than a week before the Nominet board meeting, at which they purport to exclude me from the election.
20 July – I wrote to Rory Kelly, Nominet Company Secretary:
“I had very constructive communication with Joel at Reed last week and the week before and provided him with everything that he said he needed. He confirmed that nothing adverse had been returned and everything was OK and no further documents required.
At the end he did ask whether he could send through original documents to you, rather than just a certificate confirming that the screening had been completed satisfactorily. My understanding was that it was the latter that had been agreed and that the process was at arm’s length from Nominet. It was on that basis that I obtained consent from clients etc to make things available.
I appreciate that things need to be wrapped up and would ask you to confirm where we are at. Many thanks.”
I got no reply to that email.
The first I knew of the issue was a letter from Rory Kelly on 25 July, sent at around the same time as the public announcement of the candidates.
It seems the ghost of Russell Haworth and his love of dramatic gestures lives on in the current Nominet board.
No explanation has been given for the failure to raise any concerns with the screening process until the announcement of the election candidates and my alleged failure to comply with the screening requirements. I believe this delay demonstrates bad faith by Nominet and is the cause of the need to seek urgent injunctive relief, if agreement on how to move forward cannot be reached.
Nothing in the communications with Joel Lewin at Reed suggests anything was remiss. In fact he confirmed on 11 July that there was “…nothing adverse with your [Jim Davies] screening.”
The only delays in the chain of communication come from the Reed and Nominet side.
Takeaway points:
- I completed the online screening 27/28 June and that was acknowledged by email on the morning of 28 June. That is the last part of the process that the candidate can control and so the last date that should be considered for any deadlines, assuming they are valid in the first place.
- I provided Reed with client invoices. They then asked for another one and I said I would try to get it. However, I was happy to proceed with what had already been filed. The extra one was not asked for as a requirement, more something they’d like to have “if” I could get it.
- They asked for it in an email on 3 July. At no point was there any suggestion of it being required or that there was a deadline.
- It took Reed and Nominet 3 days to respond to a question about the additional invoice. Their response was they didn’t know the answer and would get back to me.
- Despite that, and having been delayed by them, I obtained limited consent and sent it to them on 7 July.
- Three days later, 10 July, they thanked me for it and said it would go onto the file.
- 11 July they confirmed that there was “nothing adverse” on my screening.
- That is the last I heard on the screening until 25 July, two weeks later.
Nominet Statement of 27 July
It is regrettable and cowardly that the author of the statement put on the Nominet Community yesterday did not do so under their own name. I think doing it through a more junior member of staff, who did not appear to have had sight of the original materials, when the company already knew there was court action pending, is a sign of weak and broken management.
I will leave the chronology above to answer the bulk of their statement.
I will say that the part of the statement that falsely claimed that there was something outstanding when Reed said there was “nothing adverse” on my screening is just a bald faced lie.
Whoever asked Will Guyatt to publish that should hang their head in shame. They should come out of the shadows and face the music, rather than putting him in the situation he is in now.
That said, an experienced journalist like Will should have known better than to put his name to someone else’s words.
Application To Court
I have asked Nominet and Reed for disclosure of specific documents as a matter of urgency, in anticipation of making an application to court to obtain a declaration that I am a valid candidate in the 2023 NED election.
I sent both of them detailed letters on 26 July, giving them until later today to agree to sharing those documents.
The urgency is caused by their failure to communicate any issues between 11 July (when I understood the screening to have been passed) and 25 July, when I was told at the same time that things went public.
The pre action disclosure is sought because it could either prevent litigation or reduce the cost of litigation. In rely on court rule CPR 31.16.
I have also asked them to suspend the election until the matter is resolved in court. If they refuse, I will apply to court for an injunction.
To say that this situation is regrettable is an understatement. It is so, so unnecessary.
Court action will put me at significant financial risk. I have pointed this out to the Nominet board.
In return, I have asked them to resign if they lose. Risk should run both ways. I’m asking them to confirm this now. It’s a simple yes or no question.