DelinquentWoody -v- Ashbourne Management

[delinquentwoody]

Thanks for this, I will adapt this letter for my own situation with Ashbourne (and my friend's) and pop it in the post recorded tomorrow.

 

I'm wondering, is there any potential to demand a refund of any monies paid due to it being an unenforceable contract? The ruling seems to say that 12 months is an acceptable period but beyond that isn't. So would it be reasonable to request a refund of monies paid beyond the 12 month period, bearing in mind I only used the gym for the first 3 months of the contract? (I have paid 19 months so far on a 36 month contract).

 

Advice appreciated! Thanks

[delinquentwoody]

Also just another thought, could it be worth putting a point in the letter to ask for written confirmation from them that the membership is cancelled and no more money is owed to them? Just for our peace of mind!

[slick132]

Hi DW,

 

I've moved your posts into your own thread to avoid hijacking.

 

In your case, I think you may have difficulty getting a refund of payments made beyond 12 months. You could certainly try but, if AM refuse, I'm not sure if you could prove such a case in court as the Claimant.

 

It was, after all, your own choice to NOT use the facilities beyond the first 3 months.

 

You would seem to have good cause to stop paying any more and cancel your DD to AM.

 

The Judgement of The Hon Judge Kitchin is here - http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2011/1237.html&query=ashbourne&method=boolean

 

The OFT report is here and this includes the relevant contracts - http://www.oft.gov.uk/OFTwork/consumer-enforcement/consumer-enforcement-current/ashbourne/

 

8-)

[delinquentwoody]

Thanks slick132 and thanks to Bullitt742 for creating the letter that I have based mine on.

 

This is the letter I'm planning on sending, the main amendment I have made is the addition of the 4th point to ask for the refund. I know it's unlikely I'll get anything but I guess I've got nothing to lose by trying! Feedback before I send the letter of would be appreciated

 

Ashbourne Management Services Ltd

Marlborough House

679 Warwick Road

Solihull, West Midlands

B91 3DAR

 

To whom it may concern,

 

Membership Reference

 

I have cancelled my direct debit to Ashbourne Management for the gym membership as I no longer use the facility.I would like to bring to your attention the court case against yourselves regarding the investigation carried out by the OFT (Office of Fair Trading).

 

As the ruling covers every aspect of Ashbourne Management’s Terms & Conditions of contracts I will highlight specifically which points within the Judge’s ruling are specific in my case.

 

1) I would like to highlight Section 1, paragraphs 1, 2 & 3 of the Judge's ruling;“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 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.”

 

2) Further to this, your conduct regarding communications to me are in breach of the Consumer Protection From Unfair Trading Regulation 2008. I would like to highlight Section 4 paragraphs 1, 2 & 4 of the Judge's ruling;

 

“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.- 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.”

 

3) I would like to acknowledge that Ashbourne Management’s conduct within the communications to myself contradict the instructions given to Ashbourne Management by the OFT. I would like to highlight Section 5 of the Judge's ruling;“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.”

 

With points I have raised and including the Judge’s ruling regarding Ashboune Management’s working practises and illegal conduct, I conclude that I do not owe Ashbourne Management any further payments and consider this matter closed.

 

Any further communications by Ashbourne Management or ARC Europe Ltd will be forwarded to my solicitor for legal action.

 

4) In addition I would also like to raise the point from the Judge's ruling: "The judge.. ruled that the minimum terms in ten of the contracts [including my contract] were completely unfair.. if they tie the consumer in for more than 12 months."

 

As the Judge's ruling says that gym memberships over 12 months are illegal (unfair to the consumer), I have paid my membership beyond these months unnecesarily as I have previously tried to cancel the membership in the 12th month but was incorrectly told by yourselves I was not allowed to as I was tied into a 3 year contract which is now deemed illegal and unenforcable as the contract duration is longer than 12 months.

 

Now this has come to light I am demanding a refund of all monies paid beyond twelve months. I have not used the gym since month 12 as I did not wish my membership to continue beyond this time as I informed you at the time.Along with my refund I also ask you to send written confirmation that this contract has now ceased and upon refunding of my excess membership fees paid that no further payments by either party will be required.

 

A copy of this letter, which has been sent to yourselves by recorded mail, has been forwarded to my solicitor.

 

Regards,

Edited May 29, 2011 by slick132
Edited into para, to format better.

[delinquentwoody]

Sorry, for some reason the letter wouldn't format correctly

[slick132]

HI DW,

 

I've formatted the above post so it's legible.

 

Let us know what response you get.

 

I expect it may take a while as they are likely to be rather busy.

[delinquentwoody]

Thanks, the letter should be arriving on their doorstep this morning, I will keep you updated.

[delinquentwoody]

Have just had a reply from them nearly 6 weeks later - and guess what, it's the bog standard letter to say I haven't paid the membership. This is what it says.

 

Dear Member

 

We handle the monthly payment collections for the above, and according to our records the most recent instalment of your membership has not been paid. Now that this has happened, please cancel your existing arrangement with your bank and complete and return to us the new Direct Debit mandate overleaf. Please organise immediate payment of £22.20 to cover your arrears and our administration charge.

 

There are four ways in which you can bring your payments up to date [etc etc]

 

Please organise payment and the setting up of the Direct Debit IMMEDIATELY as your membership is now in arrears. If you require any assistance please contact our Customer Services Team.

 

Your Faithfully,

 

Collections Dept.

 

So, it sounds like they have ignored my letter which I sent recorded delivery! What should I do now for the best? I have already advised them my membership is cancelled and have cancelled the direct debit and I do not owe any more money.

 

Help!

 

Thanks

[slick132]

Reply to them saying :-

 

You have obviously chosen to ignore my letter dated xxxx.

 

Accordingly, this matter is now in clear dispute and you must stop making any demands until you properly address my previous letter.

 

Any further demands will be a clear breach of the OFT Debt Collection Guidelines and will be reported to the FOS accordingly.

 

Also, as the High Court made it very clear that Ashbourne's 3 year contracts were unenforceable, I will complain about the contempt you show for the High Court's ruling.

 

If you register any adverse credit data about me, I will take court action against you to have it removed and to seek damages.

 

I now require your written confirmation within 7 days, that you will cease all collection activity.