BACK

Timeshare Consumers Association

Background

I was telephoned by Elite Marketing & Promotions Ltd and asked if I wished to attend a timeshare promotion.  Merely for attending I would be awarded a free, flights inclusive, holiday subject only to paying £29 per head processing fee.

My wife and I attended the promotion at Pendragon Promotions Ltd premises in Taunton and received a voucher for completion and forwarding to Cloud Nine Ltd in Bournemouth.  We should have had our holiday within 18 months from June 1999.

Developments

From that point forward I kept a fairly meticulous record of all conversations and correspondence with the above companies.  Where possible I took names of people I spoke to along with dates and times of calls made.

We received one holiday offer which required us to complete forms and return them within very short timescales to qualify us for the holiday.  We subsequently received a letter telling us that the holiday offer had been "over subscribed" and that we would be put on the "re-offer" list.

I frequently chased Cloud Nine and received promises and reassurances that our holiday would materialise.  In the Autumn of 2000 I strongly reminded them that their 18 month contracted period for supplying our holiday was running out.  As a result we received a second holiday offer which, in turn, proved to be "over subscribed".

Once again, Cloud Nine offered to put us on the "re-offer" list.  I said that I wanted a refund of my processing fee and they agreed although it did take about 9 weeks before I got the money back.

I then decided to write to Pendragon because I still felt that we were entitled to a holiday or something in lieu of the holiday to the same value.  I gave a full history of our case and suggested that Pendragon should compensate us because they were responsible for the failure of their agents who had not delivered our holiday.

From later correspondence it seems that this first letter could not be found (in other words I think they ignored it).  I badgered Pendragon who then offered us the choice between a new Cloud Nine offer for which they would pay the processing fees or, alternatively, they would pay us a cash sum to equal to Cloud Nine's processing fee (now £158).  I ignored all of that.

Meanwhile, we decided that we would take a holiday that equated to the holiday we expected to receive from Cloud Nine.  I exchanged my own timeshare week through RCI and with two friends booked flights to Tenerife.  The direct cost of this holiday was £780 and I felt that one of the companies owed us that amount in compensation.

I contacted Citizens Advice and was told that some solicitors offer free, short consultations and managed to speak with one solicitor who advised that there was clear evidence of both breach of contract and misrepresentation.

Key point #1 - The fact that I had forced a refund of my processing fee was not a problem.  I was recommended to use words like "I gave the company sufficient opportunities to provide my holiday and when they did not, I no longer felt compelled to deal with them".

I wanted, however, a second opinion before committing myself to further expense and hassle with any court proceedings.  I managed to get another free appointment with a different solicitor who, as it happened, was a timeshare owner and specialised in company law.  This solicitor agreed that there was misrepresentation and breach of contract.  The problem, as far as he could tell, would be in deciding which company to pursue as liability was not clear.

Key point #2 - The solicitor's (excellent) advice "sue the lot of them and let the judge sort out who is liable".

This lead me to confirming that I could take a single action, for a single court fee, against any number of defendants and I therefore listed all three companies on the claim forms.

When I discovered that my initial letter to Pendragon failed to get reply I sent another, complete with a copy of the first, by recorded delivery.  The recorded delivery letter actually went astray.  I took up an enquiry with the Post Office to find that Pendragon has all its mail re-directed to another address.  Because of the way the Post Office operate re-directions it is possible for a recorded delivery item to be included with other ordinary mail and mail can thus be delivered without the receiver's signature.  The Post Office would not release the forwarding address but I did obtain a post code for the district in which it was delivered.

I interrogated the post code in the Post Office's website and found the "Abacus Business Centre" in Budleigh Salterton.  I telephoned this new address and asked whether it would be okay to send post for Pendragon to them.  I was told that all Pendragon's mail was redirected to them, that they acted as a clearing house for their mail.

I sent a third letter, covering copies of the first two, to Pendragon care of Abacus Business Centre.  Subsequently I received notice from the Post Office that both the second and third letters had actually been delivered and cross checked those deliveries with the Post Office's website (in case you haven't seen it you can actually track recorded mail on that site).

Key point #3 - one solicitor advised me that there was no need to use expensive recorded delivery.  None of their post goes by anything other than standard Royal Mail and letters sent are "deemed received" two days after posting.  The solicitor said that if arguments arose about delivery/receipt issues he would simply swear an affidavit to the effect that he had sent correspondence and that courts would usually accept that.  This view was supported by actual County Court correspondence which was marked with the exact phrase the solicitor had used.

I had become intensely curious as to the possible links between various companies purporting to work from a variety of addresses and I felt that I needed evidence of links between them because my intention was to argue "vicarious liability" in support of my claim.

Amongst my discoveries were the links shown in the diagram (see later).  These are some others:
· Richard Jones appears also to be using the name "Richard Jones Jones".  The latter is the name on company returns held by Companies House.  The individual's legal name does appear to be a single "Jones", however, because that is the name he gave on his later statement to the Court.
· Richard Jones co-habits with one Susan Holley who is a director of Riverbrook (UK) Ltd based at the same address as Riverbrook Ltd directed by Richard Jones.
· Someone has invented "Incentive Leisure" as a marketing arm (not a company in its own right) of a company called "Vakia Ltd".  Incentive are pointing people to timeshare demonstrations with "Excalibur Promotions".  Vakia's registered office is the same as Cloud Nine and Elite while Excalibur is trading out of the Taunton address used by Pendragon.  (There is a distinct Arthurian theme developing here).
· Although many companies are listed as having their registered offices at 28 Alexandra Terrace, Exmouth the only company name shown on the premises is that of their common accountants "Thompson Jenner" .
· Company returns are not being correctly or fully completed by individuals involved with these firms.
I obtained a set of forms from my local County Court and set about collating copies of application forms and correspondence.  I spent a great deal of time preparing individual sets of papers targeted at the individual companies.

Key point #4 - Wrong.  The Court Manager advised that each defendant must receive exactly the same information and the documentation had to be stripped down and reassembled.

In essence, I forwarded three sub-sets of information.
· A group of papers supporting my breach of contract claim - application forms, offer withdrawals and the like along with a copy of the original letter of invitation from Elite which supported my claim of misrepresentation.
· Documents intended to show that all the companies were in fact one business enterprise and that jointly they were working to deceive their customers.
· Evidence that I had in fact taken a holiday at my own personal expense.
My claim amounted to £780.00 plus the Court fee which for this size of claim amounted to a further £80.00.

My claim was issued by the Court on 8 March 2001 to each of the three defendants.

Great news:  A few weeks later I received notification that Elite Marketing & Promotions Ltd had gone into voluntary liquidation some 8 days after my claim was issued.  I was, according to the company winding Elite up, to be put onto their creditors list.  Subsequently I received copies of their closing accounts and minutes of the liquidating meetings.  Later still, Pendragon of course blamed Elite for my problems.

Interestingly, a new company, Elite Marketing (South West) ltd was incorporated on 8 February 2001 – only a few days before Elite Marketing & Promotions Ltd went into liquidation.

Key point #5 - while it may have been tempting to chase after money from a liquidated company based upon the assumption that their liquidation may have been an admission it is essential to ignore the liquidated company - after all, that leaves only two to fight with.

As far as the Court was concerned the next instruction was that each side should fill in an "Allocation Questionnaire".  The idea was to establish the type of hearing e.g. Small Claim or "fast-track", how long the hearing would take and to identify in which Court the hearing should take place.  Usually the Court closest to the defendant is nominated and that would have been Exeter for companies with registered addresses in Exmouth.

Because of this guideline I sent my forms directly to Exeter as stated in the Court directions.  Upon enquiring however, it seemed that Exeter had not taken my forms into their records and I subsequently received notice from my own local Court that a District Judge had decided to hear  the claim in my own local County Court in Trowbridge, Wiltshire.

Along with the District Judge's pronouncement came a further instruction for each side to exchange any documents that may have been needed in Court and to include written statement(s).

Next in the post was a letter from Pendragon's solicitors warning me that if I were to lose the claim then they would pursue me for Pendragon's legal costs.

I sent a raft of documents to Pendragon and Cloud Nine and beefed up my statement to drive home further my beliefs that all the companies were so inextricably linked that they should be considered to be one single business entity.  I had to copy my statements to the Court and took the opportunity to enclose the above solicitor's letter to show the Court how I felt I was being threatened by Pendragon.

In turn I received statements from a Mark Turner for Cloud Nine and Richard Jones for Pendragon.  Neither party however, were able to provide much in the way of supporting documentation.  Richard Jones sent none at all while Mark Turner sent some 13 different exhibits which, on closer examination, and with one exception proved to be only copies of the documents I had sent to them.

Key point #6 - I met with all Court directions well within the specified time requirements - neither defendant did - Mark Turner's paperwork was a day over the limit while Richard Jones' was a couple of weeks.  I asked the Court about this and was advised that I could argue that the late statements were inadmissable but unless they introduced something radically new then the Judge would accept them.

Comes the glorious day of the hearing.  My wife and I nervous for various reasons.  My wife because she did not want to be confronted with pushy individuals like those we met at the timeshare presentation; myself because I really did not want to lose.

Up-side or down-side?  They did not show up at the Court!!!

The Deputy District Judge to whom the claim had been assigned stated that he would proceed in the defendants' absence.  The DDJ seemed at first to take a very cursory view of the whole picture.  He said that he had not read all the papers but had seen that Pendragon had offered compensation and were unlikely to have done that if they felt they had no contractual obligation.  He also found that Cloud Nine had failed to provide the holiday in accordance with the conditions of the contract.

It did not matter that I had gained a refund of the processing fee which was in fact only damage limitation and did not alter the terms of the contract.

Having said all the above in a most relaxed fashion so the we knew the outcome up front, the DDJ proceeded to record his formal findings on tape.  Amongst his findings he remarked that he found the sum of £780 very low for a holiday for four people for one week and then concluded that the defendants were "jointly and severally" liable to pay the sum of the claim (plus the Court fee).

The cheque arrived on the last day of the court order and I subsequently ensured that it had cleared at the bank before "going public".

Key point #7 - I was quite surprised and a little dismayed that the whole thing had gone through the hearing so easily.  I had armed myself with reams of documents ready to drive the other side into the ground and, in Court at least, did not need to use most of them.  I even drove to Devon to take photos of 28 Alexandra Terrace, Abacus Business Centre and 54 Douglas Avenue (obsessed or what?).  But, I do feel that thorough research, detailed documentation and timely delivery may have:
· Given me confidence that there really had been actual breach of contract and mis-representation.
· Laid upon the defendants (who I believe to be streetwise but unintelligent) an amount of information they could not handle.
· Given the Court sufficient information that they really could see why I believed my claim was genuine.
· Given me background information so that I could assess when I was being mis-led by the defendants.

Nigel Willis  Email: nwillis@supanet.com
July 2001