LizB vs Fitness First and CARS

I'm partially blogging this to keep records, and partially so that I don't have to repeat myself again, and again, and again.

Fitness First - great gym. Joined last year (crucially, on 8 July 2010). Went, enjoyed, hurt ankle snowboarding, moved house, became less convenient. It happens.

So when my 12 months was up, I sent off my cancellation notice (on 8 June 2011). Actually, I called several times, waited forever, and emailed instead. Didn't hear anything, so called. All sorted - cancelled, even refunded that £30 joining fee they were meant to the previous year, done.

At this point, the agent raised the issue of calendar month vs 30 days notice. Awesome. Admittedly, at this point I hadn't read the contract, so I told them that I had misunderstood, already cancelled the debit order, and gave them verbal permission to reinstate it.

Did they? No. Did I care? Not really. I'd read my contract (carefully) and sent them the following.

I've read my contract and the cancellation clause says ''except where you are within the minimum contract period where notice may be given to coincide with the end of that period'. I would like you to change the end date of my cancellation to the 8th of July as per my contract terms and as per the notice that I have given below. I will therefore only pay a pro-rated amount for July.

Seemed like that stated my concern quite clearly. Response, 21 July:

The minimum period of your contract is 12 full months. Therefore full membership fees need to be paid for 12 months. This means that your contract minimum term ends at the end of July. I hope this is clearer for you.

So, fair enough. We have different interpretations. One contract, 2 clauses, contradictory - I thought I'd give it another go, because although that sarky tone in the conclusion pissed me off, I really just thought the agent must have been mistaken.

No, this is not clearer to me. My contract began on 8 July 2010 and therefore should finish on 7 (or at a push 8) July 2011. That ensures that I pay for 12 months, as my original joining included a pro-rated amount for the rest of July 2010.

What does "except where you are within the minimum contract period where notice may be given to coincide with the end of that period' mean if it does not mean that?

Erk. Confusing. Yes, possibly they were right, but I felt that there was far too much doubt for me to be taking the word of a company who had a reputation for poor, screwy contract terms.

Please refer to clause 3.3 of your terms and conditions, which states "....full membership fees must be paid for at least the minimum number of months confirmed overleaf as adjusted for a freeze period before cancellation notice can be effective".
This means that we require 12 full payments to complete the minimum term of your contract, which does not include any pro rata payments made on joining.

Okay, but this term is specifically referring to what happens when there is a freeze period in the contract, so how is it relevant to the contract terms of a Normal 12 Month Contract.

There was no freeze period on my account, so this clause should not be applicable?

Simple, to the point.

We have used this clause as an example as it shows that the minimum term is 'full months'.

Boring. I've wasted a significant amount of time on this point. I still believed that Fitness First would be taking my next payment via debit order (as I'd asked for it to be reinstated). But I couldn't leave it alone - it's always the 'not the money, the principle' statement that comes up at this point, and stupidly appropriate here.

But as quoted in your terms that actually refer to the minimum contract term, the exception to this is when cancelling within the minimum contract period. Unfortunately, an example clause doesn't mean that the actual clause referring to the cancellation term is overridden.

I'm trying to be patient here but I've not been given any reason to doubt that contractually, my contract should be cancelled on 8 July. Should I be taking this to a relevant ombudsman - if so, who is the relevant organisation?

Here's the response. Quite a straightforward and plausible one - I was kinda convinced.

The clause 3.3 referred to you is under the heading 'Membership Duration'. The phrase 'full membership fees' is referring to the duration of the contract. Any mention of freezing memberships is included in this clause to ensure that it applies to all members and that they are not excluded of this.
We will be requesting payment for July.
There is no ombudsman for Gym memberships. We will not be entering into any further correspondence regarding the validity of our Terms and Conditions.

But if only dear Lesley hadn't dismissed me, I wouldn't have gone to Consumer Direct. They were apparently right, I was wrong. I got it. Didn't like it, but got it. Again, at this point I reiterate that I gave verbal consent for my debit order to be reinstated and was under the impression that there was no actual money being debated - only whether it was right to be taken.

This is all a fairly tedious story. I sent an electronic copy of the contract to Consumer Direct who replied with a general affirmation that my interpretation of the contract could be valid but it was up to the court to fully decide - and they recommended addressing my concerns with the vendor. If the vendor failed to respond appropriately, I would have to take the case to small claims court (at a cost, of course).

Back to Fitness First. Who had said they wouldn't respond ever again and stood true to their word.

I've received a text message requesting that I call you as my last debit order has not gone through. I cancelled my debit order when I gave my notice, but when I found out that there was no way to pay the last month manually, I asked the gentleman dealing with my query to reinstate the debit order, which he said he did.
I have been in contact with Consumer Direct, requesting some advice on this contract. They have confirmed:"It is ultimately only for a court to decide on what a contract terms means, however if the terms of the contract state you have to give a months’ notice in a minimum term contract then you are correct in saying that you will need to give a months’ notice prior to cancelling."Therefore according to my interpretation of the contract, and Consumer Direct's interpretation of the contract, I only owe you for the first 8 days of July. Please provide me with bank details so that I can pay this amount into your account and close this matter.
I understand that your interpretation of the contract differs from mine, but I do believe that in light of the fact that the contract is not clear enough and causes debate, you should review your contract terms to reflect your business rules more specifically.

I once again made an offer to pay them, but they had refused to respond. Instead, they handed me over to their debt collection agency - CARS.

Delightful people. I guess it's not really a debt collection agency's job to debate the contract terms anyway - just to collect. At this stage (according to Fitness First's interpretation of the contract) there was £42 outstanding - July's 2011 payment.

First person I explained the issue to didn't quite get it, and advised me to address with Fitness First.

Second person I explained the issue to did get it, including the fact that Fitness First wouldn't respond, and advised me to post proof of my cancellation and the dispute to them. I did.

Third person called in response to my letter, and after having to read through the notes (while making me wait for ages) asked me to explain - which I did, a third time. He decided that the amount of notes on the system clearly meant that Fitness First had investigated the dispute but wasn't able to explain in any satisfactory way. This was an incredibly long phonecall, where I was patient and tried to be helpful but in the end he raised his voice and became increasingly forceful at which point (as I usually do when faced with an aggressive man person) I decided to run away. My version - "right, how much and what's the bank account details?".

£277. That's apparently 6 months of membership plus a £25 debt collection fee.

I said (now feeling that panic that ensues when things have thoroughly spiralled out of control and you're dealing with irrational, powerful people that can completely rape your credit rating) that this was not correct, and that I needed an explanation of what the £277 was for. Fed me some ludicrous story about how I was 2 months in arrears, paid in arrears (er, no) and the contract wasn't cancelled in June so July, August and September were also outstanding. His logic became increasingly flawed and I requested the outline in writing (via email). He promised it by the end of the day and I hung up on him. Furious. Literally seeing white flashy stars in front of me (which are strangely recurring now...hmm).

Did I get an email? No. Did I get another call a week later from someone I had to explain my story to again? Yes. Kerry, this time I believe. Last Tuesday. I explained I was disputing the outstanding amount - not bothering with the long version again - and said I wanted it in writing.

Did I get it? No. Did I get another call yesterday? Yes. Did I take it? No. At this point, I'm spent. I need someone to step in and make it right, somehow. I really care about my credit rating.

In summary... God, this was long. No one's still reading it now!

It was wrong of them to cease communicating with me. I don't believe I showed any signs of being unreasonable, and particularly in my final email I offered to pay - they did not respond.

Fitness First should not have handed over an account for debt collection when the amount was clearly in dispute. Now that they have, they've washed their hands.

Anything I do now is futile. Perhaps I should just let them be damned, and forever have a black mark against my name, never being able to get a mortgage. Or perhaps someone else has some advice.