Bannatynes Heavy handed collection techniques.

[love bug]

I am thinking about sending this letter to Bannatynes as they are threatening to take me to court. Please let me know what you think. Thank you.

 

Without prejuice :

 

I am writing to express how very disappointed I am with your company. I feel you have failed to address my complaints, and your use of heavy handed collection techniques which I believe have no place in the business of dealing with consumers, as stated in the unfair contract term act 1977. I feel no contract has been broken myself, as I have signed no contract with you. so no terms and conditions were told to me. I believe I need a membership card with a picture of myself to use your facilities I have not received or used, ( i.e set foot in your gym.)

 

 

I contacted yourselves to cancel my contract within 14 days of the contract starting, stating that I myself did not sign the contract which was in my name. I was informed that I was unable to cancel as it was a 12 month contract, which was very strong.

 

 

I contacted Sue Roberts the club administor of Ashford kent branch and left messages but received no reply.

 

 

So i feel that unfair terms in the consumer contacts regulations were have been apposed upon me, so will not stand up in a court of law. I will defend my case and costs will be awarded to me.

 

 

So far I have paid £480 for faciilties i have never used, didn't sign a contract for and didn't want. As a good goodwill gesture I would have imagined Bannatyne's Health club would have at least changed the membership into my wife's name so she could at the very least use the facilities i was paying for. This was not the case.

 

After speaking with your company several times about the fact that the contract is in the name of Mr x, but not signed by the same name, i would now like a copy of this contract sent to me along with my membership card, which up to this point i have never seen.

 

Please understand that i have tried to resolve this matter with yourselves on several occasions, but since you have now threatened me with a CCJ, i feel i have exhausted every avenue with you.

 

Please find enclosed copies of some case law that i have found relevant to this case, which i am sure the judge will find most useful.

 

 

 

 

For the measure of damages in contract, see 12 Halsbury's Laws (4th edn) paras 1174-1176 and for a case on the subject, see 17(2) Digest (2nd reissue) 248, 1271.

 

Cases referred to in judgments

 

Addis v Gramophone Co Ltd [1909] AC 488, [1908-10] All ER Rep 1, HL.

 

Bank of New South Wales v Milvain (1884) 10 VLR 3, Vic Full Ct.

 

Bliss v South East Thames Regional Health Authority [1987] ICR 700, CA.

 

Brown v KMR Services Ltd [1995] 4 All ER 598, CA.

 

Davidson v Barclays Bank Ltd [1940] 1 All ER 316.

 

Evans v London and Provincial Bank (1917) 3 LDAB 152.

 

Gibbons v Westminster Bank Ltd [1939] 3 All ER 577, [1939] 2 KB 882.

 

Hadley v Baxendale (1854) 9 Exch 341, [1843-60] All ER Rep 461, 156 ER 145.

 

Heron II, The, Koufos v C Czarnikow Ltd [1967] 3 All ER 686, [1969] 1 AC 350, [1967] 3 WLR 1491, HL.

 

Joyce v Sengupta [1993] 1 All ER 897, [1993] 1 WLR 337, CA.

 

Monarch Steamship Co Ltd v Karlshamns (AB) Oljefabriker [1949] 1 All ER 1, [1949] AC 196, HL.

 

Parsons (H) (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] 1 All ER 525, [1978] QB 791, [1977] 3 WLR 990, CA.

 

President of India v La Pintada Cia Navegacion SA [1984] 2 All ER 773, [1985] AC 104, [1984] 3 WLR 10, HL.

 

Rae v Yorkshire Bank plc [1988] BTLC 35, CA.

 

Rolin v Steward (1854) 14 CB 595, 139 ER 245.

 

Wilson v United Counties Bank Ltd [1920] AC 102, [1918-19] All ER Rep 1035, HL.

 

Cases also cited or referred to in skeleton arguments

 

Hill (Christopher) Ltd v Ashington Piggeries Ltd, Christopher Hill Ltd v Fur Farm Supplies Ltd (Norsildmel, third party) [1969] 3 All ER 1496, CA; rvsdsub nom Ashington Piggeries Ltd v Christopher Hill Ltd, Christopher Hill Ltd v Norsildmel [1971] 1 All ER 847, [1972] AC 441 HL.

 

Marzetti v Williams (1830) 1 B & Ad 415, [1824-34] All ER Rep 150, 109 ER 842.

 

Prehn v Royal Bank of Liverpool (1870) LR 5 Exch 92.

 

Seven Seas Properties Ltd v Al-Essa (No 2) [1993] 3 All ER 577, [1993] 1 WLR 1083.

 

Victoria Laundry (Windsor) Ltd v Newman Industries Ltd (Couldson & Co Ltd, third party) [1949] 1 All ER 997, [1949] 2 KB 528, CA.

 

Appeal and cross-appeal

 

By notice dated 18 May 1994 the plaintiff, Udele Edirin Kpohraror, appealed from the decision of Master Tennant in chambers on 16 February 1994 whereby he awarded the plaintiff damages of £5,500 in respect of an action for breach of contract for wrongful dishonouring of his cheque against the defendants, Woolwich Building Society, contending that he was also entitled to recover special damages for loss of profit on the transaction and on ten further shipments which would have followed from it. By notice dated 7 June 1994 the defendants cross-appealed against the award on the ground that the plaintiff was only entitled to nominal damages. The facts are set out in the judgment of Evans LJ.

 

Daphne Loebl (instructed by Anthony Gold Lerman & Muirhead) for the plaintiff.

 

Katherine McQuail (instructed by Morgan Bruce, Cardiff) for the defendants.

Cur adv vult

 

I look forward to a speedy response.

 

 

 

 

Yours Sincerley

 

 

Mr x

Edited July 15, 2012 by love bug
Name put on post by accident

[citizenB]

I will flag your thread for Site team.

[love bug]

Thank you! # p.s it was meant to start, Without Prejudice

[citizenB]

 

I have sent an S.O.S to someone. They are not on the forum at the moment, but I am sure as soon as they can they will look in. So hold fire on your letter for a while.

[slick132]

Hi LoveBug and thanks CitB.

 

Just to sort the basics :-

 

1. When did you (or whoever) sign up and by what method. If you used their in-house computer system and ticked a box to signify consent, please confirm.

 

2. Was there, to your knowledge, a cancellation period that applied whereby you could cancel with no obligation.

 

3. Who has threatened court action - the gym or an admin company.

 

4. If you've paid £480 which I assume is 12 months @ £40pm, what amount is being demanded and why.

 

5. For what reason did you pay up to now, if you disputed the existence of a contract or agreement.

 

I suggest you don't send the letter for now. It's not likely to get you the result you want.

 

[love bug]

Hi thanks for the response. In answer to your questions, the start date of the contract was the 24.05.11. My wife went into Bannatynes and signed me up as a gift. The contract was in my name., but she signed it. I was unaware that she had done this. When i found out she had signed me up i tried to cancel within a few days. As due to work commitments i am unable to go. She also answered and signed a health questionnaire on my behalf.

 

I was under the impression that all contracts have a 'cooling off' period of 14 days. Is this not the case then?

 

It is the gym that has threatened court action for £144.00. I wrote a letter and cancelled after nine months, as i had tried unsuccesfully to reach an agreement with them over this. i assume this amount is for the three months i refused to pay.

 

I paid the monthly direct debit as i thought i was 'locked' in a contract. But after nine months i had had enough. Surely it is unenforcable for a contract to be in my name but signed by someone else?!!

 

Thank you. I really appreciate your feedback, and if i actually have a case or not.

[slick132]

Hi LoveBug,

 

There would be no cooling off period as YW signed on the premises.

 

The bank a/c that this was paid from by DD - is YW a signatory to the a/c or is it a joint a/c.

 

[love bug]

Hi, thank you for the quick reply.

 

Ok, didn't realise about no cooling off period if you signed on the premises. Thank you for letting me know about that. My wife and i have a joint bank acct. Does this make a difference? I would be grateful for your advice on what you think i should do next. Thank you.

[slick132]

That's a shame. As a joint a/c holder YW is entitled to sign for the DD mandate. If it was only your a/c, you could perhaps have argued that the gym had no authority to take payments without your signature.

 

There may still be some mileage in the fact that YW signed on your behalf without your knowledge or permission. Even though it was a gift, as soon as you learned of the m/ship, you told the gym you wanted to cancel.

 

You say the gym didn't transfer the m/ship into YW's name. Did you request this and, if so, by what means of communication - phone or letter.

 

I'll also seek some further input from the Site Team.

 

[love bug]

Hi, yes as soon as the gym said i couldn't cancel the membership, i rang and asked if it was possible to change the details over to my wife so she could at least use the facilities i was paying for. They said this wasn't something they did. If i wanted my wife to join i would need to pay another monthly fee for her as well.

 

I explained that what had happened, i.e i was unable to come due to work commitments, therefore would be paying for something i didn't want and couldn't use. I asked as a goodwill gesture could they please change it to her name. Was told no.

 

They were quite rude and adamant that it couldn't be changed.

 

If i do need to pay the outstanding amount i owe i need to do it before they issue a CCJ. As this is something i do not want on my credit file. If you think i should pay, please let me know. If my case wont stand up, i will just swallow my pride and pay the amount.....and never ever ever even think of joining their gym again!!!!! ; )

[slick132]

Hi LB,

 

In 99.9% of cases, the gyms and their admin companies stay miles away from courts, because they have membership contracts that do not stand up to scrutiny in law.

 

If they DID take you to court, you'll have the chance to defend and we'd help in this process as far as possible.

 

And, even if you lost in court, you have 30 days to pay the claim and no CCJ will be registered against your name.

 

The fact that you actively asked for transfer to YW's name and they refused is in your favour. Normally gyms allow a transfer to family or a friend on payment of a small fee so their refusal in the circumstances is IMHO unreasonable.

 

Bear with me while we review the case and I'll come back asap.

 

[love bug]

Thank you for your help. Having read what u said, if they cannot affect my credit rating that way. It is worth a shot at least to teach them a lesson on picking on the little guy. Once again thanks for all your help.

[slick132]

Hi LB,

 

The only way to "teach them a lesson" would be to take them to court.

 

In doing this as the Claimant, you have to prove your case against the gym satisfying the judge that, on the balance of probability, your claim (for the return of m/ship fees) is valid.

 

The gym as the Defendant only has to prove that your claim is flawed and you could fail.

 

It's easier to defend a claim against you (if they tried any court action for what they say you owe) than it is for you to claim against them (for the refund of fees paid).

 

So court action to teach a lesson - NOT a good idea !

 

Having said that, I think you have reasonable grounds for cancelling the agreement which you didn't actually make yourself.

 

It was unreasonable of them to refuse your request to cancel and even MORE unreasonable of them not to allow transfer of the m/ship to YW.