Harlands - Lifestyle Fitness Gym Advice Needed

[daddywb]

Hi All,

 

My wife and myself joined our local Lifestyle Fitness gym in October 2013. Due to unforeseen circumstances, we were unable to get to the gym for a few month's so requested that they freeze our membership until March 2014. This we put to the person at the gym.

 

He said he would do this but failed to do so on time. He was apologetic but advised us to speak to Harlands about this. We didn't know who Harlands were. We thought they must be the gym owners, but now we know after reading posts on here!!

 

We should have renewed our DD (as we cancelled it) in March but forgot. We have today received a letter saying that the direct debit payment had been missed and that a 25.00 admin fee would be applied, which I understand is illegal/unenforceable.

 

When I asked them about my wife's membership which I had also requested freezing, they said that I had to speak to another department. (strange I thought).

 

I then learn't that they had not cancelled her account and have sent it to their debt department.

 

I am now mighty p'd off with this company as I want to be speaking to Lifestyle Fitness now some monkey debt collection/management company.

 

Things to note.

 

1. We never signed a DD agreement. The gym guy sat opposite us and just asked us questions and completed it. No tick in a box or signature was asked for.

2. We have NEVER received any contract, membership details, cards or direct debit information and have never signed anything.

 

I spoke to them today and foolishly agreed to pay half the admin fee (not knowing that they can't do this). Now I have read about them on here and after experiencing they way they have treated us today, I no longer want to do any business with this gym or their management monkeys.

 

I read on here about the OFT and gyms here http://www.oft.gov.uk/news-and-updates/press/2013/62-13

 

I am pretty sure that we have a good case and should be able to just write a nice polite letter and tell them to bog off and cancel our membership.Can anyone advise on our rights?

 

Another I noticed is that they kept referring to the "Data Protections Act" in emails and also when I spoke to them on the phone. They have never done this before so I guess they are trying to polish up their act...

 

Can anyone advise on our rights?

 

Many thanks for any advice you can offer.

 

Rob

[slick132]

Hi Dad,

 

First off, you signed a gym agreement and are bound by it for 12 months, plus any months they agree to freeze at a zero or reduced monthly fee.

 

However, if the gym has failed to treat you fairly or with a reasonable degree of diligence by failing to handle your freeze request, they may be in breach of the m/ship agreement.

 

Also, by insisting on charging you unlawful admin (penalty) fees, they may also be in breach of any agreement between you.

 

How were they taking DD pay'ts before if you hadn't signed a DD mandate??

 

If you are certain neither you nor YW signed a DD mandate, write to Harlands to say:-

 

Dear sir or madam,

 

I refer to the dispute about gym fees and require sight of my membership agreement, any applicable T&C's and any DD Mandate signed by me.

 

I have now found that any admin fees that you seek to charge are unlawful penalties. Accordingly, I will not pay any such fee or part thereof.

 

Yours faithfully,

 

When they refer to the DPA, it'll be so they don't have to discuss YW's m/ship with them, just as they won't discuss your m/ship with YW.

 

[daddywb]

Hi Slick,

 

Thanks for your reply.

 

We didn't sign any agreement. We have never seen one.

 

When we signed up we sat opposite the gym guy who had a laptop (couldnt see the screen) and he just asked us our details etc and set it up. We didn't tick any boxes or sign anything.

 

Like I say, we have never seen any form of contract.

[daddywb]

Sorry, just wanted to add that when we called them to freeze the memberships, they could not find our information anywhere. They tried using d.o.b, postcodes the lot and had to re-enter the information. I wonder if this is the reason we never received any contracts or other memberships information.

 

Don't know if this has an bearing on things?

[slick132]

Hi Dad,

 

I'm just confused as to how they have been taking payments without a signed DD mandate.

 

Please send Harlands the letter above and let us know how they reply.

 

[daddywb]

Hi Slick,

 

Ok, will do.

 

Do you need to physically sign now for a direct debit?

 

Thanks

[slick132]

Hi Dad,

 

Yes, a DD mandate needs to be signed before it is sent on to the bank by the payee.

 

Get the letter off. If you can, go to the Post Office and get a free Certificate of Posting so you have proof of postage.

 

[daddywb]

Hi Slick,

 

Ok, so I have now heard back from Harlands after I sent them a stinking letter.

 

Without quoting the whole letter, they say that "I completed an legally binding online agreement". They also say and I quote "The last page of the process requires you to declare that you acknowledge that the agreement will become binding upon both parties once you have checked the I agree box below the Next Step button. For your agreement to have proceeded, you will have completed this procedure."

 

Well, as I stated in my initial post, I did not even see the computer screen. The manager sat opposite us and completed the information as he asked us. At no stage did we see the terms and conditions or click any agreement buttons or boxes.

 

I am happy to tell them to go xx themselves as they are really trying it on. I think the letter just looks like some template to be honest.

 

Question is, is any of this enforceable? We are in the right, but do they have a leg to stand on?

 

If they try and pass the debt out to a DCA, can we just request to see a signed copy of the agreement?

 

It does seem like this (and no doubt other companies) are now trying to hide behind this online contracts rubbish.

 

I also found this post on their own website that states that any unsigned agreements are unenforceable and for the staff to make sure that they are signed. It is from 2009 though so not sure if it is at all relevant today.

 

http://www.harlandsgroup.co.uk/newsletter/hg-february-2009/index.html

 

Your advice is much appreciated.

[slick132]

Hi Dad,

 

If there's no signed DD mandate, I assume payments were taken using a CPA. It's important that you check that the bank is aware that you authorise NO further payments to Harlands from either of your bank a/c's.

 

I think you should also check with the bank, and let us know if there was a DD mandate or a CPA set up for the pay'ts.

 

It would be deemed acceptable proof that you consented to the m/ship agreement, and it's T&C's, if you ticked the appropriate box on their online system. However, that does NOT mean you are bound by any Term or Condition that is unfair to you as a consumer or unlawful - ie their admin (penalty) charges. The fact that you didn't see what you were "consenting" to may not be your strongest argument because it's difficult to prove what actually happened.

 

The article from Harlands own website is interesting but not particularly helpful to your case. As I said above, the ticking of a box is an acceptable alternative to the signing of an agreement or contract, on an online system. Having said that, without your signature on a DD mandate or m/ship agreement, Harlands have an uphill struggle enforcing the agreement.

 

In terms of a reply to Harlands, lets keep it simple :-

 

I refer to your letter of xxdate.

 

For your information, I ticked no "I agree" box, nor did I use the gym's computer system in any way to set up the gym agreement(s). The gym manager sat opposite us and did all the inputting of data.

 

In any event, even if I consented to the agreement, that does not mean I have to abide by any term that is unfair to me as a consumer or any term that is compels me to pay an unlawful and unenforceable penalty or admin fee.

 

Furthermore, the gym failed to apply the "freeze" on our memberships as they agreed. Accordingly, they are in breach of the membership agreements and you should consider them terminated forthwith.

 

I you agree to the content, send that off and let us know how they respond.