Personal Trainer not honouring paid sessions

djtaylor12 · 31 July 2015 at 5:28PM

Hi
Can someone give me some advice?

In March I signed up with a personal trainer for an eight week programme and paid for all sessions up front. 3 weeks in I was hospitalised with gallstones and had to have my gallbladder removed. I texted the trainer to say what had happened and that I would be in touch when I was able to resume the sessions.
At the beginning of June I was ready to go back but unfortunately was in an accident and broke two toes meaning that the training was once again off. I hadn't heard from the trainer at all so texted him on 14th June to tell him about the toe situation - the break was just diagnosed then although I had the accident on 2nd June... I just thought I had hurt my foot.
He replied to say that I had to use all the sessions before 21st August and that he would be back in on 14th July and hoped to see me that week. There had been nothing in his Ts anc Cs about th sessions having to be used within 5 months and I thought it better to speak to him about this when face to face. I read the text that he was unavailable until 14th July and I didn't text him back to make an arrangement as it was still a month away. When 14th July came around I was on holiday as it had become the only time I could get away from work ( I am self employed).
He texted me on 14th to ask when I could come in but as I was away and didn't have my phone on I didn't get the message until I returned.

I have now returned and got in touch to arrange the sessions to be told that he is 'charging me' two sessions for consistent postponements ( as per his ts and cs) . he is saying that my failure to respond to his text on 16th June is a postponement as is not arranging to see him week of 14th July.
He is 'running a business and cant have clients booking 8 week programmes and taking 7 months (his maths is wrong) to complete it.
His Ts and Cs do allow for charging for postponements however I haven't postponed any sessions, I was just unable to resume the programme until now for health reasons. The sessions are HIIT so I need to be able to both run and be very out of breath which I was not recommended to do after the gallbladder op.
I paid for the sessions by visa.
What am I best doing ?
Could I get a refund from visa for the 2 sessions he is arbitrarily charging me without notification? He saying that I only have 3 sessions left of the 5 as hes charging me 2 sessions for the delay even tho 4 weeks of that delay I believed he was unavailable.
Can I take him to small claims court?

I appreciate that its not reasonable to conclude an 8 week programme after such a time but this was out of my control and theres nothing in his Ts and Cs that covers this.

Am I being unreasonable expecting to get the sessions?

Many thanks

Valli · 31 July 2015 at 5:41PM

djtaylor12 wrote: »

In March I signed up with a personal trainer for an eight week programme and paid for all sessions up front. 3 weeks in I was hospitalised with gallstones and had to have my gallbladder removed. I texted the trainer to say what had happened and that I would be in touch when I was able to resume the sessions.
At the beginning of June I was ready to go back but unfortunately was in an accident and broke two toes meaning that the training was once again off. I hadn't heard from the trainer at all so texted him on 14th June to tell him about the toe situation - the break was just diagnosed then although I had the accident on 2nd June... I just thought I had hurt my foot.

Surely these two occurrences amount to a postponement? Well two consecutive postponements...

tomtontom · 31 July 2015 at 6:02PM

Yes, I'd say your expectations are unreasonable. He may have been more flexible if you'd bothered to respond to his texts, but you've been pretty tardy in keeping in touch - I can understand why he is taking this stance.

unholyangel · 31 July 2015 at 6:37PM

Valli wrote: »

Surely these two occurrences amount to a postponement? Well two consecutive postponements...

But postponement isnt reason alone to levy a charge unless they've incurred a loss. If OP didnt actually schedule an appointment, I'm unsure how he can argue he's incurred a loss as presumably, OP would have only been able to book any dates he didnt already have booked up. Unless perhaps he's so fully booked that when (if OP did tell him this) OP said they'd be ready to go in 2 weeks, he kept spaces clear for them and turned down other work.

5.1 It is unfair to impose disproportionate sanctions for breach of contract. A
requirement to pay more in compensation for a breach than a reasonable
pre-estimate of the loss caused to the supplier is one kind of excessive
penalty. Such a requirement will, in any case, normally be void to the
extent that it amounts to a penalty under English common law. Other types
of disproportionate sanction are considered below – Part III, Group 18(c).

5.4 Potentially excessive penalties. A penalty that states a fixed or minimum
sum, to be paid in all cases, will be open to challenge if the sum could be
too high in some cases.

5.8 Disguised penalties. Objections under the Regulations to an unfair financial
penalty can apply to any term which requires excessive payment in the
event of early termination, or for doing anything else that the supplier has
an interest in deterring the consumer from doing. This includes terms in
contracts under which consumers agree to make regular payments for
services provided over a period of months or years, which state that they
may cancel, but will remain liable to make all the payments agreed. The
OFT considers such terms are particularly open to objection where they
relate to a period of over one year. See 'disguised penalty' example in
'specimen terms', p100.

5.9 The Regulations are concerned with the intention and effects of terms, not
just their mechanism. If a term has the effect of an unfair penalty, it will be
regarded as such, and not as a 'core term'. Therefore a penalty cannot be
made fair by transforming it into a provision requiring payment of a fee for
exercising a contractual option.

Nor can he add terms (such as that they have to be used within 5 months) after the contract has been agreed.

Le_Kirk · 31 July 2015 at 6:48PM

unholyangel wrote: »

But postponement isnt reason alone to levy a charge unless they've incurred a loss.....

....and he has been paid up front for all sessions (see post #1) so where is the loss for which he is now charging?

unholyangel · 31 July 2015 at 7:49PM

Le_Kirk wrote: »

....and he has been paid up front for all sessions (see post #1) so where is the loss for which he is now charging?

The prepayment doesn't have any bearing on whether he has incurred losses or not - it just allows him to offset his losses against the prepayment.

The same way a consumer can offset their losses due to a traders breach of contract against a balanced owed (or should be able to under the right of set off - again terms having the effect of excluding the right to set off can be unfair and upset the balance of a contract).

Of course, that is assuming that what the OP has done amounts to a breach of contract. Put the shoe on the other foot, if the trainer was cancelling due to the reasons the OP was stating, would the OP be justified in charging him for a freebie lesson despite not actually having agreed an appointment time? Or would we be telling them they're only entitled to their actual losses?

I've read a few judgements (none for personal trainer services specifically - a few for gym contracts though) where the judge says (paraphrasing) providers should be more flexible and less rigid. And I can see where they're coming from - usually a service provider will have clauses in the contract stating that they may give written notice of changes/price increases/discontinuation of services/end provision under certain circumstances - some of which may give you the right to end the contract without penalty (ie without being subject to the price increase/change in contract). And some of these may be for no other reason than its not economically viable any more. Yet they bind the consumer regardless? Thats quite an imbalance.

marliepanda · 31 July 2015 at 10:41PM

Surely you signed up for an '8 week programme' not '8 personal training sessions as and when you want over the next however many months'

I assume the trainer set aside an hour for you each week and you have postponed this twice, and took a holiday! As an 8 week programme I think he has been more than reasonable. You didn't sign up for 8 PT sessions, you signed up to a 'course'

Personal Trainer not honouring paid sessions

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