Consumer rights regarding Personal Trainer

Mackers12

UPDATE - PROCEEDING TO SMALL CLAIMS

Hi all, on the issue above:

- I sent the LBA, and got a response on the same day stating, "no questions, cheers". Deadline has now passed.

- I got some very valuable info from the gym manager about the issue, on a phone call. I also followed up with an email, so have evidence to the effect:1) his access was terminated due to breaching their terms / string of other performance issues; 2) the gym head office / HR are aware of and investigating multiple complaints regarding the PT his content, payment issues. 3) They made it clear his access would not be restored (which is not what he communicated to me), and 4) the first of the three sessions he cancelled he claimed was due to a bad back, it's clear now from the timings that this was due to him breaching his contract and being denied access.

When i put my summary of the call in writing, the manager confirmed the points above (so have this all confirmed in writing) though she did ask me not to communicate this to the PT, in case the PT uses this to cause trouble for The Gym. However, considering its relevance - I do intend to include it in the particulars of claim, which he will presumably see (but won't otherwise send directly to the PT).

I also got in touch with another gym he used to be involved in. From a phone call, it looks highly likely he got the sack there too in Aug - (but they were more careful not to confirm in writing).

I'm proceeding to take action through small claims. He sounds like an absolute con artist (and tried to lie his way out of giving me my money back).

I've drafted the following particulars of claim - any advice on how this has been drafted?

---

IN THE [………..] COUNTY COURT
Case No.
BETWEEN
[x] Claimant
and
[x] Defendant

PARTICULARS OF CLAIM

1) At all material times the Defendant was in the business of offering Personal Training services at The Gym, Acton, whilst the Claimant was a customer of the Defendant's.

2) On the 25th October 2019, I, the Claimant, entered into a contract for the supply of Personal Training services, at the location of ‘The Gym, Acton’ and paid the sum of £360 by bank transfer.

3) The contract was formed following a meeting held on 8 October 2019, where the Defendant and Claimant first met at The Gym, Acton. During this discussion, and during subsequent electronic communications – the Defendant agreed to provide the following terms to the Claimant:

i. A six-week continuous Personal Training programme, running on a one-session per week basis, from the week commencing 4th November 2019 to the week commencing 9th December 2019.

ii. That each session would cost £60 (totalling £360 for the continuous programme), and would be paid on an up-front basis paid by the Claimant (ie prior to the first session).

iii. That the Defendant would provide a tailored fitness programme with a specific programme goal, monitoring of the Claimant’s progression towards stated goal, workout plans for non-session training days, and a tailored nutritional plan and diet monitoring / guidance in line with stated goal.

4) The defendant failed to provide the services under the contract properly or at all; in particular:

i. Failure to provide training session during week four of the six-week continuous programme, scheduled for 29th November, which was cancelled by the Defendant;

ii. Failure to provide training session during week five of the six-week continuous programme, scheduled for 6th December, in which the Defendant failed to show up, or provide any prior notice of intent to cancel;

iii. Failure to provide training session during week six of the six-week continuous programme, scheduled for 11th December, which was cancelled by the Defendant;

iv. Failure to provide nutritional guidance and tailored diet plan, in line with fitness objectives, as agreed;

v. Failure to provide a workout plan for non-personal training sessions, as agreed; and

vi. Failure to monitor progress of the six-week continuous plan, and progression towards programme goal, as agreed.


5) It was an implied term of the contract that the Defendant would exercise reasonable skill and care in the performance of the contract. I am of the opinion that the Defendant failed to exercise reasonable still and care, as i) no health assessment was conducted for the Claimant prior to commencing the six-week continuous programme, a requirement of The Gym, Acton, ii) considerable parts of the sessions held were unsupervised (including warm up, cool down, stretches), and iii) continual use of a mobile phone meant that the Defendant was frequently not focused on the Claimant, or the exercises being instructed.

6) By reason of the Defendant’s material breach of contract, the Claimant has suffered loss and damage.

7) I expressed my concern to the Defendant via the WhatsApp messaging app on the 6th December 2019, when the Defendant failed to show up to a session that had been confirmed, and following three sessions that did not meet the contractual terms agreed.

8) During further correspondence via WhatsApp, the Defendant stated that owing to a dispute between himself and The Gym, Acton, which arose from training non-gym members, and subsequently refusing to pay the ‘gym floor rent’ – he no longer had access to The Gym, which was required to fulfil his contractual obligations with the Claimant.

9) Given the material breach of contract, and owed to a lack of assurances about if / when Gym access would be restored, the Claimant first requested a refund for all outstanding sessions on the 6th December. The Defendant refused this request, claiming he did not issue refunds.

10) Following further attempts made by the Claimant to resolve via email, the Defendant threatened to “withdraw and rescind the contract” unless the Claimant agreed to resume the training at The Gym, Acton in 2020, the following year. This constitutes an attempt to impose a unilateral contract variation that the Claimant did not agree to, and considering the continuous nature of the six-week programme agreed, would have had a material adverse impact on the services provided. The Claimant was later made aware that The Gym, Acton made explicitly clear to the Defendant prior to this communication that gym access would not be reinstated (see para x). The defendants claim to ‘resume’ the sessions in the new year amounts to false representation by the Defendant with intent to cause detriment to the Claimant.

11) The Defendant stated in an email dated 9th December 2019 that as, “you [the Claimant] have not accepted the options I [The Defendant] have provided, Im cancelling the contract on those grounds”.

12) It is argued that the cause of the Defendant’s material breach of contract was due to factors within his control (breaching his contractual terms with the Gym, Acton – which resulted in being denied access) and therefor the Defendant is liable for damages. The assertion that the Defendant may hold the Claimant liable for his contractual obligations (ie payment) without fulfilling expressly agreed terms of the contract contravenes the Claimants rights under contract law, and constitutes an unfair contract as per the CMAs guidance on unfair contract terms (paras 2.38 - 2.39), which provides a non-exhaustive list of unfair contractual terms, including:

i. Consumers being denied full redress if things go wrong.
ii. Consumers being tied into the contract beyond what they would normally expect.
iii. The trader not having to perform their obligations.
iv. Consumers unfairly losing prepayments, if the contract is ended.
v. The trader arbitrarily varying the terms after they have been agreed, for instance, so as to supply a different product, raise the price or reduce consumer rights.
vi. The trader determining the price or subject matter of the contract after the consumer is bound by it.
vii. Consumers being subject to disproportionate financial sanctions.

The majority of the unfair terms provided in paras 2.38 – 2.39 above are applicable to this case.

13) I have outlined a summary of the communications referred to above, in Annex X.

14) The Claimant subsequently contacted the Defendant several times to resolve from the 9th – 11th December 2019. This included a request to engage through a trade association or Alternative Dispute Resolution (ADR) to resolve, and making clear that legal action would likely result if the issue could not be resolved. The defendant refused to engage in the Claimant’s ADR proposal. The defendant also confirmed which address should be used for any future correspondence, including for the purposes of the serving of any potential legal proceedings.

15) Following a complaint made by the Claimant to The Gym, Acton – The General Manager of the Gym, Acton ([name]) phoned the Claimant on the 12th December to discuss the complaint against the Defendant. During the call, the General Manager confirmed:

i. That the Defendant is not allowed on the premises due to breaching his contractual terms with The Gym, Acton, that access was ceased from the 29th / 30th November 2019 and the expectation that was communicated to the Defendant is that access would not be restored;
ii. That The Gym Group Management, HR and Head Office are aware of and investigating matters relating to the Defendant’s poor performance, and confirmed that multiple clients have complained about the Defendant’s conduct and competency as a Personal Trainer, and that these complaints have been similar to the issues faced by the Claimant.
iii. That the expectation is that the Defendant, as with all of their Personal Trainers, work with their clients with clear plans for developing their fitness goals, including setting a goal, monitoring progress, and providing nutritional advice and support, which clearly hasn’t happened in this instance; and
iv. That following performance issues and subsequent gym access termination, the Defendant has refused to productively engage in mediation discussions.

16) On the 13th December 2019, The Claimant wrote a Letter Before Action advising the Defendant of the intention to issue proceedings in respect of the material breach of contract. I have outlined this letter in Annex X. On the same day, the Defendant responded to the Letter Before Action, “no questions, Cheers”.

17) The claimant seeks a full refund for the three outstanding sessions

18) The Claimant seeks a refund of the price paid for the services in the sum of £270. This is calculated as:

i. £90 - 50% of the value of the three sessions held, at £60 per session – on the basis they were of insufficient standard to be considered as being provided with reasonable care and skill, and on the basis that they did not include the fundamental agreed terms of our contractual agreement; and

ii. £180 – 100% of the value of the three sessions cancelled by the Defendant, at £60 per session
I attach a copy of the bank transfer made on 25 Oct to The Defendant via bank transfer, in Annex X.

19) The Claimant further claims interest on the amount claimed pursuant to s.69 of the County Courts Act 1984 at a rate of 8%, or such rate as the Court awards.

20) I, the Claimant, believe that the facts stated in these Particulars of Claim are true.

Signed …………………………………………………..
PRINT NAME…………………………………………..
Dated…………………………………………………….

Juddermann

The POC are restricted to 24 lines of 45 characters and a total of 1080 characters, aren't they?

Mackers12

I was going to opt for the sending the more detailed 'additional' particulars of claim and sending within 14 days, unless the draft above is clearly too lengthy and I can cull down easily.

I just want to make sure I say enough to relay the facts and my arguments. I found the 1080 character limit very restrictive, so not sure if it's better to slim down considerably, on the basis that I'll have more opportunity to say more at a later stage if it does get defended - or just start off with a more detailed PoC in the first place?

Thanks!

Mackers12

Just to sound a note of caution here, I suspect that you're going to find it incredibly difficult to get anything back.

I had considered that too ThumbRemote... but figured for the £25 fee it's worth a punt, and the likelihood of getting a judgement against him (and as you say, I would be surprised if he bother to engage or defend).

I know roughly (street and postcode) where he lives, and know another place where he works - so if nothing else, think he'd be very easy to trace - and could at least make things slightly difficult for him in the hope he does pay! I'm also stubborn and don't just want to let him get away with stealing from me (and I only keep burly friends :beer: )

In terms of the question about using the MOCL1080 characters? Any thoughts? It would be easier for me to just go with the 1080, as my particulars will essentially be duplicating what I've put to the PT already - so I'm more concerned if I can sufficiently articulate my argument to a judge using the 1080 character (which seems unnecessarily restrictive!) and risk him / her deciding I haven't provided enough information for it to proceed.

unholyangel

You've done well.

The only things that jumped out immediately is 5) The reasonable care & skill would cover where he had provided services that were of unsatisfactory quality rather than him not providing services at all. s50 of chapter 4 (of the Consumer Rights Act 2015) might be better for the point of failing to provide sessions. Reasonable skill is s49 of the same chapter/act.

The other thing was in 14. Don't mention the address thing. Its relevant to his defence, not to your claim. Also, in the circumstances its more likely to affect an award for costs (filing fee etc) than it is the claim itself. It only really becomes important to the claim itself if you're close to the limitation period - the time limit in which you have to make a legal claim. For contract thats 6 years in england & wales.

Mackers12

V helpful unholyangel. I take it from your suggestions it's better to stick (with a few tweaks) to issuing the additional PoC from the get go?

unholyangel

Eh you dont have to detail every point, just basicallly the "facts of the claim". But you've put effort into the points behind it so thats definitely good.

This might help provide some guidance for drafting, if you're unsure (specifically 16.4):
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16

Mackers12

FYI, having now tried to submit the claim - it looks like there's a new system in place, so the particulars on MCOL aren't restricted to 1080 characters (I was able to upload the entire text above). On the next page it then asks you to complete a detailed timeline of events, and then another page on what evidence you have to support your case (it only asks you to list it and summarise what it is... not attach it).

So at least I don't need to post any additional PoCs it seems!

Mackers12

UPDATE - CCJ awarded 
Hi all, as expected - the court awarded the CCJ (by default). My understanding is the defendant was fully aware of the claim, but decided not to engage. I think he thinks that the consequences of a CCJ on him will be zero as the judgement is not under his home address, so can't be linked to him. Even though I'm fairly sure he is aware of the judgement, I'm planning on emailing him in the next few days in light of the judgement being awarded, to confirm again how I wish the debt to be paid. I know there is no guarantee I will see any money - but at least want to try (without throwing too much at this) to go down enforcement.

Question on impact of pursuing enforcement at a new address.
After some detective work, I have now (after the CCJ response deadline expired) found out his home address, as confirmed by a land registry search which proves he owns the property. As the claim was at an old address (the address he provided and confirmed), if I inform the court I believe he is at a new address and try to pursue enforcement action at this new address - will this actually mean the CCJ will be associated with his new address (and therefore be linked to him in some material way, and hit his credit rating etc)? I couldn't find a lot about this online (sorry), so appreciate any advice.  

Question / advice on enforcement options:

Asking the debtor to attend court - Thinking of doing this just to find out about his financials / assets are - For £50, might be worth a punt! And at least it forces him to engage, or risk jail! 

Baillifs - He lives in a gated community, so it's unlikely debt collectors will have much luck even getting into the block of flats, unless they tailed in from another resident. He does have a road bike, and he cycles to work - is there a chance the baillifs would be able to go to his work and seize his bike? Also, are the good MSE forum people aware of any any genuine no-win, no-fee agencies that might be worth getting in touch with?

Third party debt order / charging order - Really interested in these if there could be a chance at succeeding. Has anyone ever had any experience in pursuing these options and whether this is really a hail mary approach? From a google, it sounds like there's a fairly high bar to these actually being awarded. I know he owns the house, so both are on the table (though I would rather go through a TPDO to get the money quicker - but I'm worried he will just try to lie his way out of it being awarded, considering the apparent high bar of awarding these, and the fact the CCJ was a default judgement. 

powerful_Rogue

I would send in the High Court Enforecement Officers (Sherriffs).