Not upheld: Goods and services under S75 complaint against NewDay Ltd trading as Aqua

Decision detail

Summary

Mr R complained to NewDay about a package holiday he paid £1,649.78 for using a credit card, citing issues including non-working air conditioning, bugs, delayed flights and poor staff conduct. NewDay raised a chargeback claim which was defended by the booking agent, and subsequently offered £310 under section 75 plus £85 compensation for service failings. The ombudsman found the chargeback had no reasonable prospect of success under Mastercard rules since Mr R stayed the entire duration, and the section 75 claim lacked sufficient evidence of material breach of contract. The ombudsman upheld NewDay's offer as fair and proportionate, finding no grounds to direct further payment.

The Ombudsman's reasoning

The ombudsman applied Mastercard chargeback rules which typically only succeed where services are cancelled and unused portions are claimed. Since Mr R stayed for the entire holiday, the chargeback had no reasonable prospect of success. For the section 75 claim, the ombudsman found that while some issues were alleged (air conditioning, bugs), Mr R provided insufficient evidence of a complete breach of contract - the air conditioning evidence showed it wasn't working at a specific time rather than throughout the stay, no medical evidence supported health claims, and subjective complaints like rude staff lacked corroboration. The ombudsman noted Mr R failed to contact the booking agent's 24/7 support team during the holiday as required by terms. Given Mr R used all services including flights and accommodation for the full duration, a 40% refund of hotel costs (£310) was deemed reasonable and proportionate.

How this compares

Source

Read the original decision on the Financial Ombudsman Service website