Esporta / ARC (Europe) Ltd...HELP!

[hitman31]

Hello guys,

I wonder whether anyone (or everyone!) would be able to advise me on a dispute I’ve been locked in with Esporta Health & Fitness for some months now? I've had a look at some other threads that are broadly similar but thought mine differed enough to warrant a separate thread...

I’ll try and keep my explanation brief…

…I had been a member of the Esporta club in Wolverhampton for six months. I was then offered a new job in Preston, which I accepted. I wrote to Esporta advising them I would need to cancel as there was no Esporta club within 30 miles of my new residence. I was informed this would not be possible and I would be bound for a further 6 months, plus 3 months cancellation period on top of that. Following this letter I wrote to Esporta expressing my unhappiness and advising that I would happily pay 3 months cancellation fee but no more than that. I also said that I considered the terms in their contract to be a transgression of the Unfair Contract Terms Act. I cancelled my direct debit and returned my membership card along with a cheque for four months membership fees. I also wrote at this stage to:

• Trading Standards
  
• My local MP
  
• BBC Watchdog
  
• ARC (Europe) Ltd – advising them in advance not to take on the account from Esporta
  
• Financial Ombudsman Service
  
• Express & Star newspaper
  
• Experian
  

There were various further bits of communication between myself and Esporta before I finally received a letter saying they would correspond no further and that if I had a complaint to make I should do so to the Financial Ombudsman Service but that they had ‘[…] previously ruled in favour of Esporta on every occasion’.

I then moved house to my new job.

A few weeks ago I received a letter from the Financial Ombudsman, with all the paperwork from the case enclosed, saying that they cannot make a ruling on Esporta as it is not an organisation they can cover! I also received notification from Experian at this time that Esporta do not submit data to the FSA and so cancellation of my direct debit should not affect my credit rating.

However, this morning I have received a telephone call from ARC (Europe) Ltd on my mobile, asking whether I had received their letters. I haven’t received any because I no longer live at that address (incidentally I had informed both Esporta and ARC (Europe) Ltd in writing that I was moving address, although I didn’t give them the new one). I’m afraid to say I was rather rude to the lady from ARC (Europe) although I did make it clear that I had followed all the official channels as requested by Esporta and that I considered the issue closed.

Nonetheless, I am deeply concerned that a) there are letters threatening court action at my previous address and b) that I will receive further telephone calls and c) that things could basically get bad for me. I don’t know whether to send ARC (Europe) Ltd a further letter disclosing my new address and if I did send such a letter I don’t know what to say in it. I have printed off the telephone harassment letter which I found via CAG in case they keep ringing. But any step by step advice would be hugely appreciated! I can’t afford for my credit rating to slip or to be taken to court…especially if I’m not even receiving the letters that tell me about it!

Thanks and best wishes to all,

David

[Prolix]

I think that although there is no club within 30 miles of your new address, Esporta will be arguing that this isn't their problem.

 

If the contract that you signed bound you to pay 3 months cancellation plus the 6 months that your contract had to run then you may well have to pay. The Unfair Contract Terms Act 1977 weirdly does not deal with unfairness. It is concerned with exclusion clauses mainly. You may be able to challenge under the Unfair terms in Consumer Contracts Regulations 1999, but you would have to show that this term created a significant imbalance in the rights of the parties. However, the fact remains that you did agree to be bound by the term by signing the document.

 

I'm sorry I can't offer any more helpful advice, but you could write and challenge this clause and say that it was so restrictive that it should have been more adequately drawn to your attention. You could make them an offer to settle...

[hitman31]

Hi Prolix and thanks for the reply,

 

In my communication with Esporta thus far I have acknowledged that I signed the contract but stated that I considered the terms were so unfavourably weighted in favour of Esporta that it was a transgression of the Consumer Contracts Regulations Act of 1999. I also referenced a case that had previously been brought against Esporta via this piece of legislation. On top of this I added that the relocation clause wasn't sufficiently brought to my attention. I had thought that having Trading Standards and my MP write in my favour might have prevented this issue but clearly not...it's all quite disheartening.

 

I can only 'owe' Esporta a maximum of £112 anyway but I would really rather not pay, it's a moral stance rather than a financial one against what I consider to be unethical practice. I guess what I'd really like to know is:

 

1) Is there any almost foolproof way I can get ARC (Europe) off my back via letters / telephone calls etc?

2) What are the likely consequences of me not responding to any of their letters?

3) Assuming I get the same correspondence from the same companies that others on this website have done, what are the chances of me being dragged to court?

4) Should I disclose my new address to ARC (Europe) Ltd in a letter?

5) Now the debt has been handed to ARC (Europe) Ltd is my dispute with them rather than with Esporta?

 

I honestly believe I've covered every base I could have done upto now but it feels like crunch time...

[Prolix]

I guess that if you refuse to communicate with anyone then you may find yourself with a summons to appear in court. At this point Esporta would have to prove that their clause was not unfair under the regs (similar to the bank charges cases where the banks all settle rather that reveal their actual costs, but I digress). They may well succeed if they can show that the costs involved in recruiting a new member are roughly commensurate with the charges they are imposing on you for leaving the contract. I would not fancy your chances, I'm sorry to say. There is a legal term "contra preferentum" in which the definition that favours the consumer is the one taken in cases like these and a judge may well be sympathetic, but given that the debt is £122 Esporta would have no trouble in defending this.

 

Although you are resisting on a point of principle, don't feel that you are folding if you offer to settle. If you had capitulated straight away then you would be £122 down. If they settle at £60 then you say that you were £62 up given that they may well have a valid legal claim to the full amount!

[ODC]

Without seeing the actual contract its hard to know if you can find a get out clause in it. You may want to have a look here http://www.consumeractiongroup.co.uk/forum/faqs-please-read-these/146460-consumer-protection-unfair-trading.html

 

I certainly would NOT be making contact with ARC to advise them of a new address. If they do track you down then you could send them this

Dear Cretins

 

You have contacted me/us regarding the account with the above reference number, which you claim is owed by myself/ourselves.

 

I/we would point out that I/we have no knowledge of any such debt being owed to (insert company name).

 

I am/we are familiar with the Office of Fair Trading Debt Collection Guidance which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

 

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

 

Furthermore ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.

 

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt in question.

 

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

 

I/we look forward to your reply.

 

Yours faithfully

[Ell-enn]

Hi there, as ODC says, without seeing the contract it is difficult to say whether there is a loophole in it for exit.

 

Is it possible for you to scan the contract and post it on here (blank all personal information out). We can then perhaps advise you better.

 

Kind Regards

 

Ell-enn

[M1ssb]

I have a similar problem I did my 12 month contract and gave the 3 months notice during the 12 months I get the impression Esporta are fine with this! However they reckon they never received my email it took me a month to retrieve the original email whilst I was doing this I was receiving letters from ARC threatening court. I eventually got my original email back which I was extremely happy about I smuggly forwarded it on to Esporta they are now saying that because i didnt confirmation from them receiving it that i still owe 3 months notice. Also I have requested a copy of my contract many times now as they reckon i joined in august when i am positive i joined in july!

[flyingdoc]

I had exactly the same problem with esporta.

 

Esporta have a policy in their contracts that say if you have to leave due to circumstances beyond your control then they will release you from the membership..

 

caveat

1 you must have been a member for 6 months

2 you have to give 3 months notice

3 you need to prove reason for leaving.

 

They will threaten you will ARC and ARC will threaten you with legal action.

 

The office of fair trading have not made a ruling but in their leaflet on unfair t&c they state that in their opinion, a fair term of notice for leaving a gym under these conditions would be 1 month.

 

Take a look at my tale http://www.consumeractiongroup.co.uk/forum/general-consumer-issues/168393-esporta-information.html

 

this is what happened to me.

 

I am no legal expert but I believe if you stand your ground with these guys then they will back down.

 

(I do have a copy of the policy somewhere which Simon Empson who was my contact at Esporta sent me.) if you need it I can post it.

[hightail]

I received a letter from the Financial Ombudsman, with all the paperwork from the case enclosed, saying that they cannot make a ruling on Esporta as it is not an organisation they can cover

 

So how can they have ruled in favour of Esporta on every previous occasion then as Esporta claim? Somebody's telling porkies. Although it isn't anything to do with your contract it might be worth pointing out the difference in their version and the FOS. They didn't exactly threaten you but they did lie in order to get you to cave in.