Office of Fair Trading v Ashbourne Management Services 9th.March 2011

[MARTIN3030]

http://www.oft.gov.uk/OFTwork/consumer-enforcement/consumer-enforcement-current/ashbourne/

 

 

 

Investigation into Ashbourne Management Services Case reference number: CRE-E/17562 Start date: September 2005 Next milestone: The High Court hearing of the proceedings has been listed for 9 March 2011, for 3 days in the Birmingham Chancery Division.

 

[MARTIN3030]

Next milestone: The High Court hearing of the proceedings has been listed for 9 March 2011, for 3 days in the Birmingham Chancery Division.

 

Nothing come through yet.

Edited March 17, 2011 by MARTIN3030

[slick132]

Slight update according to the OFT site:-

 

Next milestone: High Court proceedings were heard between 8 - 11 March in the Birmingham Chancery Division. We are currently awaiting judgment and will update this webpage when it is obtained.

 

Tick, tock..........

 

8)

[MARTIN3030]

Oh.....lets hope their decisions are a bit quicker than the FOS.........

[locutus]

I'm wondering if this outcome will effect the reporting of "defaults" by mobile companies? (see here ) as mobile companies report defaults and do not provide credit, I'd imagine the situation is very similar.

[slick132]

I understand the High Court ruling is to be handed down on Friday.

 

Let's hope a bit of common sense and justice prevail.........

 

8)

[BULLITT782]

OFT's Website has been updated with the Judge's ruling.

 

On 2 March 2010 the OFT issued High Court proceedings against Ashbourne Management Services ('Ashbourne'), a company that provides services to gyms, following concerns about its compliance with consumer credit law and the fairness of its contract terms and business practices.

Ashbourne's business is focused on collecting payments on behalf of gyms, usually where the gym has used one of Ashbourne's standard contracts.

The OFT was concerned that Ashbourne's contracts were unfair in a number of key respects (particularly around the minimum contract term), that they may involve the provision of credit, and that some of Ashbourne's payment collection practices were unfair.

The case involved consideration of 13 standard form contracts that Ashbourne has recommended to gyms clubs to use over a number of years. These were referred to as "contracts 1 to 13" in the court case. We believe that only contracts 1 to 10 have actually been used with consumers, but it is possible that some consumers may have been given contracts 11 to 13. All of these contracts can be read under 'related documents' below.

Where a term in a contract is unfair, it is not binding at all on the consumer, and the trader is not allowed to enforce it or otherwise rely on it in existing contracts, or include it in future contracts.

Where consumers were behind with payments that Ashbourne alleged were due, Ashbourne had a practice of reporting the consumer to a credit reference agency.

Proceedings were heard between 8 - 11 March 2011 in the High Court, sitting in Birmingham.

Judgment was handed down on 27 May 2011.

The Court held:

 

• various terms of Ashbourne's standard form agreements are unfair contrary to the Unfair Terms in Consumer Contracts Regulations 1999. In particular:
   
  - Terms in contracts 1 to 10 which required consumers to pay in full for the remainder of the minimum membership period if they wished to cancel during this period. This was both because the minimum term operated as a "trap" for consumers who overestimate the use they are likely to make of the gym, and also because the contracts unfairly gave Ashbourne the right to demand too much in payment;
   
  - Terms in contracts 11 to 13 which tie consumers in for more than 12 months. The judge indicated that if there is a longer period it would be unfair unless the consumer could give 30 days notice to cancel, and pay a modest sum in compensation. The court was willing to accept a 12 month minimum period in contracts 11 to 13 because they contain more circumstances in which the consumer can suspend or terminate their membership for stated reasons.
   
  - Terms in contracts 6, 8, 9 & 10 which require the consumer to give cancellation notices to Ashbourne rather than the gym. In fact the contracts were between the gym and the consumer, and so the consumer should be able to deal directly with the gym.
  
• The judge also held that in contracts 1 to 8 it was not sufficiently clear who the consumer was contracting with -Ashbourne or the gym, and contracts 9 to 13 were only sufficiently clear if the name and address of the gym was entered in full on the contract.
  
• The judge also ruled that none of Ashbourne's contracts entitle the gym (or Ashbourne) to demand payment of sums which have not already fallen due where the consumer is less than 3 months behind with payment (and then only when the consumer is given a month to pay). He also ruled that the consumer cannot be required to pay where it is the gym that has seriously breached the contract.
  
• Ashbourne has engaged in unfair commercial practices contrary to the Consumer Protection from Unfair Trading Regulations 2008. In particular:
   
  - Including contract terms that do not properly set out the consumer's rights -for example because they are unfair or otherwise poorly drafted.
   
  - Demanding payments which are not due -either because the contract, when read properly does not provide for them, or because the term is unfair.
   
  - Reporting or threatening to report sums to credit references agencies where the sum owed was unfair, merely a claim for damages, otherwise not due or was disputed by the consumer.
  
• The Judge also noted that Ashbourne had already undertaken to the OFT not to:
   
  - exaggerate the significance or consequences of reporting sums to Credit Reference Agencies;
   
  - threaten to report consumers to credit reference agencies without also informing them of their rights to access and correct their records;
   
  - send letters from a "litigation department" that does not exist, or otherwise threaten legal proceedings when it has no intention to issue such proceedings.
  

[slick132]

OFT's site link with a summary - http://www.oft.gov.uk/news-and-updates/press/2011/60-11

 

Definitely good news for all Ashbourne victims.

 

And this should also help those in dispute with other gyms and their admin systems.

 

8)

[MARTIN3030]

Yes excellent result.

OFT confirmed on Beeb that this will apply to all gyms.

Judge also reportedly was very damning of the adverse credit reporting.

[rosiejones88]

Great news! http://www.bbc.co.uk/news/business-13578624

[leekyr]

So what does this mean for us Ashbourne victims exactly?

[slick132]

I've yet to go through the ruling closely but, in any event, it would appear that AML are going to have trouble with many of their contracts.

 

We really need to identify which aspects of which contracts the court decided were unacceptable, so we can tell AML not to bother pursuing payments for these at all.

 

We'll be working on this over the next few days, but, if you find any useful sources of info, let us know.

Edited September 20, 2011 by slick132
typo

[silverfox1961]

Copies of the contracts used in the case are at the bottom of this page

 

http://www.oft.gov.uk/OFTwork/consumer-enforcement/consumer-enforcement-current/ashbourne/

[wwfay]

This great news!!!

 

But what do i do know?

Do i still need to write to ashbourne complaining and to the debt collectors?

Do i need to write to the office of fair trading stating my case?

Or will all contracts with ashbourne cease!

[slick132]

Hi Wwfay,

 

This thread is probably best left for discussing the overall picture about the AML court case.

 

I will respond to you on your own thread.

 

8-)

[slick132]

 

 

Present General Advice

 

1. Read the OFT's summary linked in post 13 above by SilverFox.

 

2. Identify the contract you have with Ashboune to see if it is one which contains questionable terms.

 

3. Wait for the formal Order against Ashbourne following the Judgement given on 27th May. No date is yet known for the issue of the Order.

 

Edited June 6, 2011 by slick132

[WelshMam2009]

lol You've got to love how Ashbourne are spinning this as a victory against OFT...

 

http://www.ashbournemanagement.co.uk/ashbourne_management_news.php

 

They do state that they will be appealing the decision based on the following....

 

The basis of the appeal will be two-fold. Firstly, the OFT chose to submit a number of Ashbourne contracts to the High Court, some going back to 2000. These have been largely superseded by more recent versions, which now reflect a more rounded approach to the enforcement of contracts and which are acknowledged in the judgment as “fairer”.

Secondly, a key point of contention was the duration of Ashbourne membership contracts. Although the judge ruled that 12 months was fair, Ashbourne argues that the duration of a contract is a ‘core term’ of any membership agreement, and that this was acknowledged as such just two years ago by the OFT. ‘Core terms’ cannot be included within the scope of the Unfair Terms Act and therefore this aspect will be disputed further.

The ruling that membership contracts longer than 12 months are unfair has far-reaching implications for the whole fitness sector. Up until now, 24 and 36 month contracts have been common practice and many clubs and promotions companies will need to look at this ruling closely and consider how best to proceed.

[slick132]

HI Welshmam,

 

This isn't surprising and I guess it's their prerogative to be upbeat in how they portray the outcome.

 

The reality is that the OFT WERE unsuccessful about having the agreements declared to be credit agreements, so Ashbourne and other gym admin Co's will be pleased about this.

 

So now we await the judges Order and watch to see if Ashbourne do actually appeal the ruling.

 

[slick132]

Thanks to Michael Browne for this post which I've copied to here:-

 

http://www.oft.gov.uk/news-and-updates/press/2011/92-11

 

19th August 2011

The OFT is urging gyms to check their contract terms to make sure they are lawful and check whether they need to notify their customers of any changes, after the High Court ordered a gym management company not to use certain unfair terms and business practices.

 

The OFT's case against Ashbourne Management Services Limited ('Ashbourne') was launched following a large number of complaints to it and to local trading standards services from consumers who had entered into lengthy memberships which they were not able to cancel.

 

An enforcement order against Ashbourne and its directors has now been granted in the High Court. This sets out what Ashbourne may no longer do or say to consumers, further to a High Court judgment handed down on 27 May 2011.

As part of the Court's requirements under the order, Ashbourne has this week written to over 700 gym clubs it acts for to inform them of the judgment and their responsibilities to comply with it.

The Court had ruled that Ashbourne's minimum contract length terms in some of their standard contracts and a number of other key terms in thousands of gym membership contracts were unfair and therefore unenforceable. The Court also found that a number of Ashbourne's techniques for collecting the arrears of consumers who had stopped making payments were unlawful, including its practice of reporting the arrears to credit reference agencies. The use of these practices has now been prohibited under the order.

 

Cavendish Elithorn, Senior Director of the OFT Goods and Consumer Group, said:

'We are pleased that the enforcement order has been granted by the High Court, and urge gyms that use similar contracts that they should review their customer contracts for fairness. This judgment and order make clear that businesses cannot hide behind contract terms to engage in intrinsically unfair commercial practices.

 

'Gym companies should also be aware that trying to enforce illegal contract terms is a breach of the law and in certain circumstances they may have a duty to notify customers where their contract terms have been found to be illegal.

 

'This case sends a clear signal to traders that the OFT and local trading standards services will not hesitate to take action to protect consumers.

 

'Any consumer who feels that they have an unfair minimum term and wishes to end their contract should now feel able to challenge the terms with their gym.'

 

27th May High Court judgement here:

http://www.bailii.org/cgi-bin/markup...method=boolean

 

27th May OFT report here:

http://www.oft.gov.uk/news-and-updates/press/2011/60-11