Esporta Brighton – unfair notice periods and forged signatures
Since we decided to leave Esporta Brighton, we’ve had no end of threatening behaviour from the company and its debt collector ARC Europe. This isn’t anything unusual, they’ve done it to lots of people – just try a Google search.
Esporta’s membership contract says that they can terminate a membership with one month’s notice, but that a member cancelling their membership must give three months notice – paid, of course. So when someone like me wants to leave because the facilities are poorly maintained and the club just isn’t up to scratch, they try to enforce this contact term. However, there is a piece of legislation called the Unfair Contract Terms Act 1977 which companies like Esporta should be rather wary of when they ask their lawyers to draft their contacts. Used in conjunction with the Unfair Terms in Consumer Contracts Regulations 1999, one can essentially ask a court of law to review a contract term, and if found to be unfair, the entire clause is struck from the contract. With nothing to replace it, standard UK trading laws take over and there’s nothing the company can do; with no fair cancellation clause in place, they’re not entitled to a penny.
Esporta’s contact terms relating to notice periods have already been ruled unfair by the Office of Fair Trading (see http://www.oft.gov.uk/advice_and_resources/resource_base/consumer-regulations/traders/790/1/), along with quite a lot besides. This ruling would be taken into account by the courts in any case involving Esporta’s membership contracts. This means that nobody should be paying Esporta three months’ fees upon notice of cancellation. Unfortunately a lot of people give way to bullying from the company and its debt collectors. Why is this allowed to happen? Unfortunately a contract is only of any use when tested in a court of law. Since most people shudder at the thought of being taken to court by a big powerful company, most people just give in and pay up. It’s important not to give in, and to fight your corner, because that’s the only way companies like Esporta will be stopped.
Unfortunately this wasn’t all in our case. ARC Europe obtained copies of the contracts my girlfriend and I allegedly signed, and sent them through to us by way of a “now get out of that one” threat. To be honest, I didn’t remember signing a contract, so I was surprised they had a signed one to send me. Upon examination however, it wasn’t my signature. My girlfriend had signed, but I hadn’t. In place of my signature was a very poor forgery in the same handwriting style as that of the Esporta employee who had signed on behalf of the company.
Just to be clear about this, forging a signature on a contract is criminal fraud under UK law. Are Esporta really that desperate? Apparently the answer is yes.
April 2010 Update: lots of letters & phone calls received from ARC Europe (culminating in a threat of solicitors & legal action) & subsequently ScotCall – threatening doorstep collections – and then numerous phone calls from a call centre asking for payment and offering substantial discounts if we give them a card payment over the phone… and all addressed to my partner, not me. This is no doubt because she’s female and relatively young, and therefore seen as the easy target by the bully boys. Indeed she may have got scared & paid up anyway if I hadn’t been around. Finally, a Final Demand letter from ScotCall – saying that the balance remains unpaid despite their correspondence and that they have no choice but to… return the case to Esporta with a recommendation that they take further action. I’ll keep you posted of any further developments. Let me know if you’re also being harassed for money by Esporta & its cronies on the basis of an unfair contract.
Jon,
I too am a member of Esporta in Brighton and I have found the club to be a lovely club with a fantastic atmosphere, yes equipment does go wrong but this will be the case anywhere you go. The contract is quite clear, 12 payments and as long as you give your notice in by your 9th month you will not make any further payments if you do not wish. The only reason there seems to be so much bad press is that people do not take the time to read/research the contract before signing.
James, I don’t doubt that the club gives pleasure to many, however you may see another side of the organisation when you try to leave, as have so many others. In your ideal world perhaps contracts could specify whatever terms the author wanted, but fortunately in this world we have the Office of Fair Trading and unfair contract terms legislation to prevent sharp practice. The OFT has ruled that Esporta includes unfair contract terms in its membership contract, including the termination clause. That the company chooses to flout such rulings against it really speaks volumes. Forging signatures on contracts is just desperate behaviour, apart from being despicable, morally reprehensible and criminally illegal.
I’m about to be in dispute with them about this. I think you’ll find though that the OFT had reservations against the cancellation policy but did not specifically find it unfair – check the adjudication which you link to. Cheers.
That’s exactly my situation, and my position. The OFT has concerns that the requirement is excessive. I think that still gives us the upper hand.
Dunno. The problem is that the OFT (toothless tiger) have ruled vs Esporta Wokingham and NOT ruled the cancellation term as being unfair – they’ve just said they think it’s a bit much. This is a bad thing insofar as they’ve already looked at it and not ruled it unfair. But it is a good thing insofar as they haven’t specifically addressed the real reason why the cancellation terms are unfair in law, which is as follows: UTCCR 1999 says that any term that results in a significant imbalance of rights and obligations between the parties, to the detriment of the consumer, is unfair and not binding (that’s almost the exact wording of the act). As you’ll see in Esporta’s contract, they place a requirement of three calendar months’ notice on the member, but no notice requirement on themselves, and indeed say they can cancel any membership at any time (and not just in the context of bad behaviour etc.). So this is the tack to take: that the cancellation term is unfair under the ‘significant imbalance’ clause of UTCCR 1999, and OFT have not ruled on this specific point of law, having only labelled the terms “excessive”, and therefore need to look again. This is the tack I will be taking with Esporta if they don’t cave in and let me out of the contract at the end of the 12 month period without requiring the three calendar months’ notice that will cost me another two months’ fees.
Oh and by the way, the Director General of OFT is duty bound by UTCCR 1999 to consider any complaint made to him about a general-use contract term being unfair under UTCCR 1999. So, in principle at least, if a new case is made to them which they haven’t considered (i.e. Esporta falls foul of the significant imbalance clause, three calendar months’ notice for me vs. none for them), then they have to look at it. Although it might take pressure through MPs, parliament etc. to make them get on and do it if they’ve already ruled once against Esporta. My other thought was, if I end up paying them the extra two months, whether to take them to Small Claims Court to recover the money plus my costs, claiming the fees were taken in breach of the UTCCR 1999 significant imbalance clause. Dunno.
I am in a similar situation with Virgin Active Gym and APC. Virgin too forged a signature on a 3 month membership contract, and now want me to pay a total 6 months monies even though I havent been using the gym, unaware that on the contract it states you need to give a further notice period, even though the contract was only for 3 months. APC are chasing me and I am not sure whether they or VIrgin forged my signature, but its so obvious it has been forged on the contract. Hugely unethical ways of doing business.
Just to share my ongoing episode with Esporta~~
I am moving this Sep. When I e-mail (27th of July)to inform the moving and ask for direction how to transfer to the Club close to my new home, the membership manager try to convince me that I will need to pay a different rate for the new club. When I asked what will be changed from my original package, she told me 13 month membership and 3 month notice for cancellation will stay the same, only the price will be different. She didn’t even bother to tell me what the price will be.
That was when I decided I want out. I asked her if I’ll be forced to transfer to new club and pay its new rate due to my moving. Then she changed her story and told me I only need to pay my original rate in the new club. (Can I sue her for intending to trick me for paying more for new club? All conversation were made via e-mail, and I told her if she call me I will need to record it.)
Still I want out, but my new home needs to be more than 20min drive away from the new club and they still ask for 3 month notice, regardless there is no specific notfication about 3 month notice in Clause 8 for resignation due to medical condition, home moving & redundancy. When I told her about it, she then told me it’s on their website. I told her no where in Clause 8 mentions there will be extended conditions on Esporta website for those 3 circumstances and 1 month notice will stand in court. She stoped discussing this subject on her later e-mail (I think she is still asking for help on this one).
Regarding to 20min drive, it’ll be measured by RAC route planner. I drop her a question: what if the quickest route & shortest route come out differently, which they will take into account or they only take the one that is in their favour. She hasn’t answer me. I guess she needs to ask head office AGAIN.
I got the feeling that the membership manager is not every professional and doesn’t know what she are talking about. I actually told her to be careful what she replied to me. They will be evidences against her if she jeopardize my right in her interpretation of my agreement.
Hi,
Yes, I am in the same situation here. Not sure how you all resolved your situations?
I will be flying to Hong Kong for 3-6months and hope to find work, but esporta still want me to pay for two months after I go (I gave them one written months notice).
I was made redundant and you STILL have to give three months written notice! I wouldn’t even have minded giving three months notice, its just not made clear.
I would love to stand up to them but only have a few days before I go. Is there any substance in the OFT statement regarding the contract?
@Becky Basically, Becky, I stood my ground, made it clear that under no circumstances were they going to get money out of me, that it would do them no good at all, and that they should just give it up. They did make attempts to scare my partner into paying, but she did as I said and refused. It’s now about 9 months since we last heard a peep from them or their debt-chasers.
Hi,
I have just received my first ‘threatening letter from ARC (esports debt collecting agency), I have the same issues as lots of others. I want to get out a contract and cant. Your last post today looks promising, how long did they chase and threaten you, im debating whether to ‘pay up’ or ‘wait it out’ and see what happens. Any more info would be much appreciated
i am a member of esporta brighton. when i signed up for a years membership they asked for an application fee to be paid on top of the membership fee. when i argued about this, it was withdrawn. i wanted to pay my £768 ‘limited access’ membership fee upfront for just one year. however, i was told that the type of membership i wanted had to be paid by on a pcm basis by DD. i was not offered a copy of the agreement contract form but insisted on one. i was not aware of the 3 months notice clause until i had read the contract at home. it does seem a bit unreasonable – surely 1 months notice should be more than enough ? i have no problems with the club but a friend of mine was offered a ‘corporate membership’ , which gives full access to the club, for a similar amount. its a great space and its fantastic that the huge outside pool opens even when its snowing – 364 days per year !
Hi
Just wanted to say that I have an identical issue with another gym and their debt collection agency. This agency (another notorious one – Harlands) have now filed a court claim against me. Prior to this I had not heard from them for about 13 months. Wish me luck- any tips?
The key point to examine is whether the notice periods are fairly balanced on either side – if they say it’s three months for you and one month for them, ask the judge to strike out the entire termination clause from the contract as an unfair contract term. Just don’t give in – it’s what they want you to do, and as a woman it’s probably what they expect you to do.
Have just had a letter from their solicitors saying they will take me to court if I don’t pay up within 10 days and threatening bad credit referencing etc. My inclination is to ignore it. Have they actually taken anyone to court?
Well I’ve not heard anything from them in over a year now I guess… a general rule of thumb in anything involving civil litigation through the small claims channel seems to be that if they threaten, bully, intimidate and generally hassle you, then they’re as desperate as they appear, and best to ignore them – because ultimately if they’re working from anything involving something possibly dodgy in their T&Cs rather than a clear point of law, the chances are it’ll be a lost cause in court. See my parking related posts. However, of course, you should treat everything I say as hearsay and take your own advice – I’m not a qualified commentator, merely a fellow victim!
Further to my last post, another solicitor’s letter which didn’t sound threatening enough to me so I ignored it. I had in fact sent them a cheque for three months’ fees and they sent it back uncashed saying it was unacceptable. So I think they may now be on a sticky wicket as far as legal action is concerned. They’ve now got Scotcall on the case but I shall ignore them too. It’s almost fun if you don’t worry about it!!
I agree it’s always fun keeping bullies from their goals