Not upheld: section 75 claim handling - breach of contract complaint against Marks and Spencer Financial Services PLC (M&S Bank)

Decision detail

Summary

Miss Y complained about M&S Bank's handling of a section 75 claim relating to cosmetic surgical procedures performed abroad between November 2022 and April 2023, for which she paid approximately £11,200 using her M&S Bank credit card. She alleged the procedures were not performed with reasonable skill and care and sought approximately £30,000 in compensation including procedure costs, associated expenses, and future corrective surgery. M&S Bank rejected the claim citing lack of contract evidence, jurisdictional uncertainty, and insufficient evidence of breach. The ombudsman upheld M&S Bank's decision, finding that the evidence was insufficient to establish breach of contract, M&S Bank had valid concerns about liability for procedures paid with another bank's card, and the complex medical nature of the dispute made it unsuitable for the Financial Ombudsman's informal forum.

The Ombudsman's reasoning

The ombudsman found that M&S Bank had valid concerns regarding liability for the first set of procedures paid with another bank's card. Without a written contract, M&S Bank reasonably wanted certainty about whether it had liability. The evidence provided was insufficient to definitively establish that the procedures were not carried out with reasonable skill and care, particularly given the complexity of surgical procedures, multiple variables affecting outcomes, and the absence of detailed medical evidence. The ombudsman noted that the Financial Ombudsman Service may not be the appropriate forum for resolving complex medical disputes that would benefit from expert evidence and court proceedings.

How this compares

Source

Read the original decision on the Financial Ombudsman Service website