Hopefully someone out there can help me, and put an end to this matter!
I have used some of the information on CAG, to which the current state of play is below.
Firsly, a bit of back ground.
I cancelled my £9.99 DD on the back of personally going to my local Xercise4less,
to tell them I do not wish to continue the membership
- To be honest I don't think they were that bothered,
well not by the attitude of the member of staff I spoke too anyway.
I cancelled my direct debit and thought nothing of it.
Until I received an initial letter off CRS stating I owed them £187!!
I am only dealing with them via e-mail, not by phone at all.
I work nights anyway, so can hradly get hold of me during the day
- Especially considering their non friendly opening hours!
I have gone back and stated that their charges do not stand etc etc,
and have offered them £9.99 to clear this debt and let it be as that...
Now I have received the below, from the infamous David Castle.
..Any help would be greatly appreciated...
We wish to advise that cancelling your Direct Debit was not adequate notice of your intention to cancel.
The terms of your agreement specifically state that you must give notice in writing.
We have received extremely similar claims before,
citing the case of the Office of Fair Trading versus Ashbourne Management Services Ltd. as evidence that cancelling the Direct Debit was sufficient.
We believe you are mistaken with regards to Mr. Justice Kitchin's ruling.
Such a statement does not appear anywhere in Mr. Justice Kitchin's judgement.
A legal precedent can only be drawn from a ruling but the statement you rely upon appears in the Penal Notice issued specifically to Ashbourne Management Services Limited, advising them what they must and must not do.
This only applies to Ashbourne Management Services Limited because contracts 1-13 examined in this case were found to be unfair and thus unenforceable.
As such the penal notice issued to them stated any course of action indicating a desire to end the membership (including cancelling Direct Debits) was sufficient to cancel because those contracts could not be enforced anyway.
Xercise 4 Less' contracts have not been supplied by Ashbourne Management Services Limited and have never been deemed unfair by a judge.
There is, therefore, no reason to believe that the terms regarding how a member may terminate their agreement will not be enforceable in other instances.
We are unable to accept your offer of £9.99 as sufficient to settle this debt because costs have been incurred because of your breach of contract that must be taken into consideration.
With regards to your comments that our charges are penalties,
it is our position that all charges applied to this balance are to cover the above mentioned actual and necessary costs and thus are not penalties.
Lord Dunedin, when considering whether charges stipulated at the outset of the agreement were penalties, set out in Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd (1914) that:
"It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimated damage was the true bargain between the parties ( Clydebank Case, Lord Halsbury; Webster v. Bosanquet, Lord Mersey)."
The above applies to the charges of £25.00 applied by Harlands and also in regards to our own collection fees of £66.50 both of which are pre-estimates of the average costs incurred from defaulted agreements, but which vary from case to case and cannot be precisely calculated in advance.
We believe, therefore, that these charges do not constitute a penalty and are thus fully enforceable.
We wish to confirm that as this matter does not relate to a regulated credit agreement it is outside of the jurisdiction of the Financial Ombudsman Service.
They will not be able to uphold any complaint on your behalf nor will they be able to charge us for their involvement.
If you wish to escalate a complaint outside of our business we recommend that you contact the Credit Services Association of which we are a member and they can be contacted online at.
For the above reasons it must remain our position that the balance of £187.49 is correct and due.
We may be able to negotiate on this sum,
but would require you to contact one of our telephone negotiators on 01444 449 165 in order to do so.
Payment can be made by Credit/Debit card by calling us on 01444 449165.
Alternatively, cheque/postal orders should be made payable to Credit Resolution Services and sent to CRS, 2nd Floor, Rockwood House, 9-17 Perrymount Road, Haywards Heath, West Sussex, RH16 3TW.
A payment plan can also be set up if you are unable to settle in full, although we do charge a little extra for this.
If you are experiencing financial difficulty, there are organisations who offer free debt advice and
assistance such as Step Change (0800 1381111), National Debtline (0808 8084000) and your local Citizen Advice Bureau.
Please ensure a payment or response is received within the next 7 days, so we can avoid further action being taken.