I need some legal advice

Good Morning,

Can I have an hour of your time to get your opinion about my business taking another business to the small claims court and whether you agree with my logic for calculating losses & damages.

Simply put, we are an affiliate of another company. Prior to signing the agreement I sought assurances that they did not remarket to our data, they wrote back confirming they did not. We since discovered they were adding our customers to their own mailing list and marketing to them.

We have written to the company to outline concerns twice, and have not received a reply. As the total value of any claim brought is likely to under 5K, I am thinking that a small claims case may be the way to go, but I need some help please in how I should proceed and I’d like your advice on whether you think it’s a sensible course of action.

I’ve included copies of the complaints and the contract.


Losses & Damages

• Can I use actual sales figures (based on email campaigns) to calculate the likelihood of subsequent sales made to my clients on an assumption that one email was sent per week and calculate commissions due on a pro-rata basis at the rate agreed upon in the contract?

• Their sales reports provide me with only the names of my members, I will have to spend time going collating their contact details from our own CRM system so that I can contact them to gather more evidence and inform them that their details have been added. Can I claim for these hours? If so, at what rate?

• We will also need to spend time managing responses and keeping records of those who confirm that they have been affected by the same problem. Can those hours be claimed?

• Some customers are likely to be very upset about the mis-use of their data and subsequently unsubscribe and possibly report the matter to the ICO/press. Can I calculate the average life-time value (based on actual sales data) and claim ‘per customer’ fee and for the average customer acquisition fee that we have paid to recruit them for any who unsubscribe and include those as a loss? The affiliate sales that this case refers to are secondary sales, and not my primary business. So if I lose customers over this, I lose their primary business also.

• Can I add the fees that I am paying for your advice into my original claim, or do I ask the court to award costs separately?

• Are there any other losses or damages that I have not considered such as intangible damage to reputation etc. How does the court view these and how would one set about quantifying such a thing?


Evidence

• Can the court force them to hand over the evidence that they have destroyed/withdrawn access to?

• Since giving notice, they have ignored emails from us asking for customer support from our members, thereby not fulfilling another of their obligations. Should we include this?

• Should I write to each customer (possibly) affected and ask them to send me copies of emails to help support my claim?


Final Questions

• Supposing that I am wrong, and that say only 1 person was added to their mailing list in error and no subsequent sales were ever made. How would the court be likely to view this in the light of my having tried to ascertain facts from the defendant prior and propose reasonable resolutions prior to taking legal action and what bearing would that have on any award? Would they be penalised for example for failing to enter into discussion?


It would be great to have a chat with you about this and see what your thoughts are on the matter.

The contract is too large to attach, so instead I've pasted a dropbox link below. Attached however, are the letters sent to them.

https://www.dropbox.com/s/kkagagysojvf0cw/Ltd-centraltickets.pdf?dl=0

Best,
Lee McIntosh
Central Tickets