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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48187
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I'm part of a small business that has just hired

Resolved Question:

Hello,
I'm part of a small business that has just hired a company to run a large email campaign. When looking for quotes, we asked what kind of open rate and click rate we could expect, to which we got the reply:
"Averages for prospect campaigns tend to be 3-6% open rate and the same again for click through rates, sometimes a little higher, although you will see this increase the more times you deliver to an audience due to brand recognition."
We have run 25 different campaigns and none have reached more than 0.8% opening. I feel the claim above is misleading and having now run several campaigns am concerned that it is in fact just a lie - is there any recourse from a legal perspective for us?
They have declined to offer any demonstration of campaigns that achieved the 3-6% open rate.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Have you asked for evidence of where they obtained these figures from?
Customer: replied 1 year ago.
Hello Ben, thanks for getting back to me - I have asked for examples of campaigns that have achieved 3-6% rates, but they said that they would not be useful for us to base anything on, as the campaigns can vary quite a bit.
I have not asked for specific evidence of their figures yet - is that something they have to provide, or are they able to just fob me off?
Expert:  Ben Jones replied 1 year ago.
Thank you. Your legal rights here will be in relation to breach of contract and/or misrepresentation. You were specifically told that on average there is a certain percentage of open rates and click through rates so if they were going to make such claims they should base them on factual information, which they can back up. However, whilst these figures were an average, there is no guarantee that your particular campaign would have achieved the same or better figures. So you are not necessarily going to be pursuing this on the grounds that your campaign did not meet these figures, but would have to try and rely on the argument that what they had promised was not true, assuming that was indeed the case. If they can show that on average the claimed figures were achieved and that they did nothing significantly different with your campaign, then even if you achieved much lower figures that is unfortunately not their fault and it is just one of those risks you have to accept. However, if their claims were based on false figures and as a result you were induced to enter into a contract with the, then that would be misrepresentation and you can pursue them for compensation. The issue is that at this stage you cannot force them to disclose evidence to back up their claim. However, if you were to make a claim against them, they will have to as part of the disclosure process. Therefore, it is a bit of an unknown if a claim will be worth it or not as they may come up with the necessary evidence. This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow should you decide to pursue them for compensation, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
Thank you for your detailed reply, I thought that might be the way that we would have to go.
I have a semantic question about their claim of:
"Averages for prospect campaigns tend to be 3-6% open rate and the same again for click through rates, sometimes a little higher, although you will see this increase the more times you deliver to an audience due to brand recognition"Since an average is a single number, not a range - ta***** *****terally, this, to me, can be read to imply that they see averages of between 3 to 6% in individual campaigns. To me, the addition of "sometimes a little higher" and the range of values given, rather than an average, implies a lower limit and a flexible upper limit.
Is there weight to that argument?We have two phases of this campaign, paid for up front as one, but we are only part way through the first phase and no motion has been made towards the second, larger phase. Are we able to request a refund on the back of no longer desiring the second phase?Thank you for your help so far, I have passed on my rating!
Expert:  Ben Jones replied 1 year ago.
Thank you. I agree that traditionally an average is a single number, what they have provided here really is a range. What they could try and argue is that they have provided you a range of averages, so some campaigns achieve 3% on average, others 4%, others 6%, and there is a 3-6% range of averages. You can try and play around with the terms as much as you want, in the end it is all down to how a court will interpret this and one judge on one day may come to a completely different opinion to another on a different day. So if you believe that the service provided so far is below par and not in accordance with what they promised you could indeed try and claim a refund for not proceeding. They could however refuse and if that is the case, as mentioned your only option is to consider the legal route, which I will explain below. Whenever a dispute arises over money owed by one party to another, the debtor can be pursued through the civil courts for recovery of the debt. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps: 1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due. 2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action. 3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this. Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.