Esporta Health & Fitness Club
- Investigation:
- Esporta Health & Fitness Club
- Contract identifier:
- UTCCRContract-1
- Country of complaint:
- United Kingdom
- Country of origin:
- United Kingdom
- Trading sector group:
- Wokingham District Council
- Trading Sector: xxxxxxx
- Holiday and Entertainment//Sports and hobby equipment and services --Holiday and Entertainment//Sports and hobby equipment and services
- Action taken by:
- OFT
- Local Authority:
- Wokingham District Council
- Legislation used:
- Community Infringements Specified UK Laws//Unfair Contract Terms 1999
- Regulation considered:
- Unfair Contract Term
- Notes:
Notes
| Original term | Application of regulations/Enforcer view | How changed | New term |
|---|---|---|---|
| 2 | 1(d) Retention of pre-payments on consumer cancellation : Term stated that the joining fee is non-refundable. |
See Specific reservations in relation to term 6.4 | |
| 2 | 1(e) Penalty clause (financial) : Term imposed an unfair financial penalty on the member where he cancelled the contract early on in the Commitment Period because the Club was in breach. |
Term provides that the member may terminate membership if the Club breaches the contract and receive a refund of prepayments and/or compensation. | 6.2 |
| 4 | 1(e) Penalty clause (financial) : Term failed to reflect the Clubs duty to mitigate its loss, where possible, when a member cancelled the contract during the Commitment Period. |
Term offers a reduction in outstanding fees if the Club has a waiting list for membership and can find a replacement member. | 6.1 |
| Term 5 | 1(f) Unequal cancellation rights : Term failed to give adequate notice of a proposed increase in fees to members paying annually in advance, so that they could exercise their legitimate cancellation rights if desired. |
Term gives all members 1 months notice of a change to membership fees. If the fee increases by more than 5% above the Consumer Price Index over any 12-month period, the member can cancel by giving 3 months notice (during the notice period, the member will be charged at the previous membership rate). | 3.5 |
| Term 6 | Reg 7 Plain and intelligible language : Term failed to make clear whether the notice to terminate the contract could be given at the beginning of the 12th month or whether the full year had to pass before giving notice. |
Term provides that notice to terminate can be given at any point during the 12-month Commitment Period. | 1.2 |
| Term 12 | Reg 7 Plain and intelligible language : Term included jargon bona fide. |
Term deleted | |
| Term 14 | 1(k) Right to change what is supplied : Term gave the Clubs General Manager the right to alter the service provided without a valid reason. |
Term states that changes to opening hours or facilities would be likely to occur due to maintenance or refurbishment. | 2.2 |
| Term 15 | 1(k) Right to change what is supplied : Term failed to state that members would be given notice if part of the facilities were not available, and failed to give members a corresponding right to cancel the contract and receive a refund of prepayments if the unavailability materially affected their enjoyment of the contract. |
Term provides that, where possible, notices will be displayed at the Club reasonably in advance. Where the unavailable facilities (unavailable for at least 20 days in a period of 60, or 60 days in a year) comprise a substantial part of the facilities and this has a material adverse effect on the members use of the Club, the member will be entitled to a refund of prepayments and/or compensation. | 6.2 |
| Term 16 | Reg 5 Other unfairness : Term failed to state that the Club would exercise its discretion reasonably when deciding if a member had behaved in an inappropriate manner, and thus expelling or suspending the member or refusing them admission. |
Term provides that if a member is dissatisfied with any decision of the Club, they can request it to be reviewed by the Esporta Regional Manager. | Club Rule 20 |
| Term 17 | 1(j) General variation clause : Term gave the Club too wide a right to vary terms generally and unilaterally, without giving the member adequate notice and a corresponding right to cancel the contract and receive a refund of prepayments. |
Term provides that where significant changes to terms are made for security, legal or regulatory reasons, at least 1 months notice will be given, where reasonable, by display on the Clubs noticeboard. Where the change has a materially adverse effect on the members use of the Club, the member can terminate the contract by giving 30 days notice. | 13 |
| Term 17 | 1(l) Right to increase the price : Term gave the Club the right to alter fees and charges at any time, without giving the member adequate notice and a corresponding right to cancel the contract and receive a refund of prepayments. |
Term provides that the Club will give all members 1 months notice of a change to membership fees. If the fee increases by more than 5% above the Consumer Price Index over any 12-month period, the member can cancel by giving 3 months notice (during the notice period, the member will be charged at the previous membership rate). | 3.5 |
| 19 | 1(a) Exclusion/restriction of liability for death or injury : Term excluded liability for death or personal injury caused by negligence or any other breach of duty on the part of the Club. |
Scope of term narrowed so that the Club does not exclude liability for negligence or breach of any legal duty by the Club or its staff. | 5.1 |
| Declaration | Reg 5 18(e) Consumer declarations about contractual circumst : This declaration bound members to wording regardless of whether they had any real awareness of it or opportunity to read the terms. |
Term deleted from Membership Terms and Conditions. Important Points to Note outlines key terms in the contract and states that the member should read the full Club terms and conditions and rules. | Important Points to Note, paragraph 2 |
- Outcome reached:
- Undertaking obtained with no admission
- Date effective:
- 22 December 2004
- Received from:
- Outcome text:
Specific Reservations
The OFTs position was reserved in relation to: Important Points to Note, Term b) and Membership Terms and Conditions, Term 1.2 OFT has concerns that, where the member has already completed the 12 month Commitment Period, requiring him to give a further 3 months notice if he wishes to cancel the contract is excessive. Membership Terms and Conditions, Term 1.5 The term gives the Club the right to require the member to transfer his membership to the Club he most uses in any 3-month period. OFT considers 3 months too short a time to denote a permanent change of residence and has concerns that the term has the potential to unfairly change what is supplied. Membership Terms and Conditions, Term 3.5 The term requires members to give 3 months notice if they wish to cancel due to a price increase. OFT has concerns that this is an excessive notice period. The term further states that, where members are in their Commitment Period, they must inform the Club of their wish to cancel within a month of being notified of the price increase. OFT has concerns that this unfairly shifts the balance of power in favour of the company. Membership Terms and Conditions, Term 6.4 The term states that the joining fee will not be refunded under any circumstances if either the Club or the member terminates the contract. OFT has concerns that this unfairly allows the Club to retain fees paid by members when they legitimately cancel the contract. Club Rules, Term 6 OFT has concerns that this term unfairly penalises members whose guests behave inappropriately, by allowing the Club to terminate their membership. Whilst it is considered that the potential for unfairness remains in these terms, further enforcement action was considered not to be warranted at this time, pending complaints or other evidence suggesting that these terms are operating unfairly.
- OFT telephone enquiries:08457 22 44 99
- Consumer Direct telephone enquiries:08454 04 05 06