Virgin Active Help

[Jonny_J]

Hi All,

 

Back in 2010 my wife and I became members of Virgin Active, and my membership was a secondary membership tagged on to hers. All of the fees were paid directly from her bank account and I had very little to do with it except give her the money every month to cover my part of it. Then my wife became ill with a chronic disease and was unable to work as much as she used to or attend the gym, and we stopped going. But because of our reduced financial income some things were defaulted on, and this was one of them. This was passed on to ARC (fair enough) and we came to an agreement and have now paid for the years membership.

 

Now, Virgin Active are contacting me, but not my wife, saying that I am still a member and the membership has rolled over. Furthermore, they want me to pay £43.95p for last month. I called them and was told that if I sent an email cancelling my membership and paid the outstanding fees, that would be the end of the matter. This was on the 26th of September. I sent the email and received no reply.

 

Today (29th) I called them again to be told that they have received the email on the 28th, but because it wasn't sent on the 17th of the month I would have to pay another £43.95p for this month. I know that this is a major source of annoyance to a lot of people as it is plastered all over the internet. They're not asking my wife for any money, and she didn't email them to cancel here membership. This is money that we can't afford to pay, especially as we haven't had anything in exchange for it, and it just seems that every time I try to resolve the matter, they change the goal posts again.

 

Please help.

[slick132]

Hi Jonny,

 

If you don't have your own contract for membership, I think they have no right to seek further payments from you.

 

If you actually signed a contract, then you may still have to cancel it in your own right.

 

Check on this and let us know.

 

[martin2006]

I would also be concerned that your wife didnt cancel her membership either. It maybe that once yours is sorted out they come after your wife aswell.

[Jonny_J]

Hi Guys,

 

Thanks for your prompt replies.

 

I have just found out that both memberships were cancelled by my wife when it went to ARC. ARC have now been paid in full. So as far as I can tell, Virgin Active are just chancing their arm here.

 

I have also found out that upon breach of contract, a company can only claim for it's actual losses, and as neither of us have received any services from Virgin Active for over a year now, there has been no actual loss on their part.

 

Also, rolling membership renewal on what amounts to a credit agreement? Not allowed under the Unfair Terms in Consumer Contracts Regulations of 1999. I believe that the OFT have looked into this, and that the Daily Mail intervened in a similar case in October 2008. Virgin Active dropped this like a lead balloon when they became involved.

[slick132]

Hi Jonny,

 

Gyms and their admin companies spend much of their time "chancing their arms" as you put it.

 

Trouble is, they tend to make payment demands and keep on doing so in the hope that you'll pay up, just to get them off your back.

 

Write to them confirming that the contracts were cancelled on xxdate and that you owe nothing more. And if they continue to pursue for payment, you will lodge a formal complaint with Trading Standards (via Consumer Direct).

 

[Jonny_J]

Hi Guys

 

Thanks for all of your help on this one. I have now found out that the matter wasn't resolved due to an oversight on my wife's part. Never mind, if I owe the money, it must be repaid.

 

I am currently in dialogue via email with the branch of Virgin Active where we used to go to try and negotiate a reduced settlement because I haven't had any services from them over the last year.

 

However, I got a phone call from a mobile number today, it was ARC. The parasite on the phone didn't ask any security questions and said that he didn't need to because it was an outgoing call!

When I told him that I was still talking to Virgin Active about this (latest email this morning), he said that I was to deal with ARC and that I didn't have much of a choice as to whether it was in writing or over the phone.

I told him that I refused to deal with it over the phone or on the doorstep, and that I would only deal with Virgin Active. He laughed and said that it had been contracted to ARC so I had to deal with them.

 

Any advice here would be greatly appreciated folks.

 

JJ

[slick132]

HI Jonny,

 

Your contract was with Virgin Active and not with ARC.

 

Whilst you are dealing with Virgin, you have no need to speak to ARC at all. Tell them you have nothing to say to them but will record anything they say.

 

If they call again, record the conversation if you can. Some of what they say would be of interest to Trading Standards and the OFT.

 

Continue to try and resolve the issue with the gym direct but do not be talked into paying anything you consider to be unfair. For instance, when you informed the gym of your wife's illness and inability to use the gym, THAT would be the point at which they were notified that the contract was cancelled by her.

 

Don't be bullied into paying any more than you have to.

 

Read this thread and links to the OFT Site and the High Court Order against AMSL - http://www.consumeractiongroup.co.uk/forum/showthread.php?320766-Ashbourne-Management-Services-Ltd-Contracts-longer-than-12-months&p=3563434&viewfull=1#post3563434

 

[Jonny_J]

Thanks Slick

 

Looking at the High Court Judgement, it looks as though, when my wife cancelled the direct debit, the agreement was terminated (section 16 paragraph (ii)). Section 4 suggests to me that any terms within the agreement that require a gym member to pay the balance of the monthly fees up until the end of the minimum term once the agreement has been terminated are unfair. Am I reading that correctly?

 

JJ

[pokinthruboxers]

Hi Johnny,

 

My interpretation of it is pretty much the same as your own. My wife was in a similar situation with Ashbourne and it took several months for them to accept that she was exempt from their dubious contract on health grounds! However it was a battle well won and they never got a penny from it, so take heart and don't give in to intimidation and harassment from a bunch of 'chancers'......

 

Have a look at this from the OFT site... http://www.oft.gov.uk/news-and-updates/press/2011/92-11

 

Clearly points out what these 'companies' should be aware of and, more importantly, make their customers aware of!

 

Keep fighting mate....every inch is a step forward for the victims of these 'tactics'.

 

All the best....Pokin'.

[slick132]

That Order relates specifically to AMSL contracts. But it can be relevant to other gym contracts.

 

To address your points:-

 

1. The judge, Mr Justice Kitchin, makes clear that a contract can be terminated by notice orally by phone or in person; in writing; or by cancellation of the DD mandate. As you say, this is set out in 16(ii) of the Order. What is NOT said is what the judge thinks is "a modest sum in compensation" that would be reasonable if you cancel within the first 12 months.

 

2. My understanding of the High Court Judgement in May (not the Order in August), is that you can terminate a [12 month] contract without having to pay the full years fees.

 

The Judgement says:-

 

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.

 

But I think we must be careful of taking items from Mr Justice Kitchin's Judgement, or his Enforcement Order, in isolation when they relate directly to AMSL's practices. The Judgement and Order can be applied to other gyms and their admin Co's but perhaps in broader terms.

 

[Jonny_J]

Hey Guys

 

Thanks for the replies and your support.

 

In the light of this, I might tell them to whistle for it and see what happens.

 

I'll post any new developments as they happen as I'm sure there are others that will need to know.

 

JJ

[pokinthruboxers]

Hi again....

 

A quick look at the Q&A on the ruling at the OFT site here: ( http://www.oft.gov.uk/OFTwork/consumer-enforcement/consumer-enforcement-completed/ashbourne/ams-qanda )... threw up this:

 

 

16. Will this judgment automatically have a knock-on effect to other gym contracts?

 

The judgment only applies to contracts 1 to 13, drafted and recommended by Ashbourne. However, it provides useful guidance to other businesses in the sector which use similar terms. The OFT would expect businesses using similar terms to those which have been held to be unfair to amend their contracts accordingly, and to refrain from enforcing terms in existing contracts which are unfair.

 

17. Will there be a read-across for other sectors offering this type of contract?

 

The ruling applies primarily to the gym sector, but much of the judgment will be directly relevant to all sectors. The judgment is binding on lower courts such as the County Court, and persuasive in the High Court, so it is important that traders using practices that may be similar to Ashbourne's consider their position, perhaps by taking take legal advice.

 

 

18. Where can I get further advice?

 

Practical advice on your consumer rights can be obtained by contacting Consumer Direct either by telephone (08454 04 05 06) or online at: http://www.direct.gov.uk/consumer. For further assistance you should consider obtaining independent legal advice.

 

 

 

Hope for all I reckon!!

[Jonny_J]

Hi Guys

 

Virgin Active want me to pay them a £30 'debt fee'. I enquired as to the exact nature of this fee and was told that this was to cover the fee that the CRA charge when they referred me to them. I have this explanation in an email and will keep it for evidence, but my question is;

 

Should I refuse to pay this fee? Is it one of the fees that they're not supposed to be charging me?

 

JJ

[slick132]

Tell them to take a hike !!

 

Whether it's a default charge, a penalty charge or an admin fee, they have absolutely no right in law to charge this or to make you pay it.

 

In fact, if you had paid any such charge in the past, you would be able to claim it back from them plus compound interest using a County Court Claim if necessary.

 

Don't agree to pay it.

 

[Jonny_J]

Thanks Slick, I thought that was the case when I asked for an explanation. Now I have it in writing from them so I guess it's a case of 'Give them enough rope' eh?

 

Now I think it's time to tell them that I'm not paying and wait for ARC to start hassling me again.

 

JJ

[Jonny_J]

Ok.

 

I managed to convince Virgin Active that they couldn't charge me a debt fee, and I am still in dialogue with them over the rest of it, but now I have a letter from Trevor Munn Solicitors threatening to send me court papers through Northampton if I don't pay them within ten days.

 

They want £66 more than the figure I have so far negotiated with Virgin Active as well!

 

I have emailed Virgin Active telling them to get ARC and Trevor Munn to back off, but is there anything else I can do?

 

JJ

[Jonny_J]

Ok.

 

I managed to convince Virgin Active that they couldn't charge me a debt fee, and I am still in dialogue with them over the rest of it, but now I have a letter from Trevor Munn Solicitors threatening to send me court papers through Northampton if I don't pay them within ten days.

 

They want £66 more than the figure I have so far negotiated with Virgin Active as well!

 

I have emailed Virgin Active telling them to get ARC and Trevor Munn to back off, but is there anything else I can do?

 

JJ

[locutus]

Personally, I'd ignore the DCA. IF (and it's a big if) they tried any court action, it would fail as you are disputing this with the original creditor. Let them play their games, request future correspondance in writing (preferably on 2 ply as that's all it's worth ).

[slick132]

I would simply write to Trevor Munn saying the matter is being negotiated with the gym direct. They should therefore desist with their empty threats of court action or you will report them to the OFT without further warning.

 

Remind them that the OFT are taking a keen interest in all gyms and their admin companies and DCA's, following the issue of an Enforcement Order by the High Court in the Ashbourne case in August.

 

Send a copy to ARC if you want, but don't talk to anyone. As Locutus says, keep it all in writing only.

 

[Jonny_J]

Thanks Guys

 

I'll keep you posted

 

JJ

[Jonny_J]

Thanks Guys

 

I'll keep you posted

 

JJ

[Jonny_J]

Virgin Active are now telling me that none of the Asbourne v OFT judgement is applicable to me as I didn't complete a 12 mont contract. Any thoughts guys?

 

JJ

[slick132]

Can you tell us exactly what they say or scan a copy of their letter.

 

Sounds like their usual hot air though !!

 

[Jonny_J]

Hi Slick

 

The situation is this. They have waived their £30 debt fee and reduced the amount that they want me to pay by 50% providing it's paid by the end of the month. After that. it goes back to ARC for collection of the whole amount.

 

I sent them the Judgement pointing out that this wasn't really enforceable because the judgement can be applied to all gym club contracts. Now, you have to bare in mind that the reason that we didn't complete the full twelve months was because my wife has rhumatoid arthritis, which got a lot worse while we were attending the gym. Because of this she couldn't go to the gym, but more crucially, she couldn't work as much (we're both self employed). This has placed a great financial strain on us both.

 

Virgin Active continued to pursue her for the remainder of the contracts (hers was the primary contract, with mine as a secondary). This was done through ARC and we paid what they wanted at the time, placing more strain on our budget, but thought that this would be the end of it. Now they are saying that they want more money as it was never settled the last time.

 

Their latest email says that they have checked with their head office and the 'letter' that i sent them (the judgement) doesn't apply to me because I didn't complete the first twelve month of the contract. It also says that if I don't pay the discounted figure by the end of this month (Monday), it will go back to ARC for collection, and if I'm not satisfied with the answer I'm to phone membership services who say that they have no authority to do anything except take payment.

 

I'm thinking of paying them the discounted rate, which I can't really afford, and trying to get it back later. This is a bid to limit my potential losses.

 

JJ

[slick132]

HI JJ,

 

Please don't be intimidated by the time limits they are trying to impose. Neither Virgin Active nor ARC have any power to force their wishes upon you.

 

Can you please confirm:-

 

1. What amounts they are now seeking in payment.

 

2. What months this is for.

 

3. Did you ever pay the £43.95 mentioned in your 1st post.

 

4. When did the initial 12 months m/ship expire.

 

5. When were the contracts cancelled - this will be the date you told them of your wish to cancel, whether by phone, by letter or by email.

 

6. When did you cancel your DD mandate.

 

My instinct is to stick with the agreement you reached with Virgin when you sent the email on 26th September. But I'll consider this in the light of the replies you give.