Not upheld: unfair credit relationship under Section 140A of the Consumer Credit Act 1974; misrepresentation claim under Section 75 of the Consumer Credit Act 1974; alleged breach of Regulation 14(3) of the Timeshare Regulations 2010; undisclosed commission; insufficient information provision complaint against Clydesdale Financial Services Limited trading as Barclays Partner Finance

Decision detail

Summary

Mr T complained that Clydesdale Financial Services Limited (trading as Barclays Partner Finance) acted unfairly by being party to an unfair credit relationship and by declining his Section 75 claim for misrepresentation regarding a Fractional Club timeshare membership purchased on 27 March 2017 for £20,734, financed by a loan of £24,217. The complaint, raised on 18 October 2023, alleged the Supplier made fraudulent misrepresentations about property ownership, investment returns, and holiday benefits, and that the Lender failed to disclose commission payments. The ombudsman found the Section 75 claim was time-barred under the Limitation Act 1980 (six-year limitation period expired) and that the credit relationship was not unfair under Section 140A because Mr T's own evidence showed family holidays were the primary motivation for purchase, not investment returns, and the commission of 2.5% was low and properly considered. The complaint was not upheld.

The Ombudsman's reasoning

The ombudsman applied the Limitation Act 1980, finding that the six-year limitation period for misrepresentation claims under Section 75 of the CCA had expired (claim made 18 October 2023, more than six years after 27 March 2017 sale date). Regarding Section 140A unfairness claims, the ombudsman found: (1) alleged misrepresentations were not proven as factual statements rather than opinions; (2) even if Regulation 14(3) was breached regarding marketing as investment, Mr T's evidence showed family holidays, not investment returns, motivated the purchase; (3) the commission of 2.5% was low and comparable to the Supreme Court's guidance in Hopcraft, Johnson and Wrench; (4) Mr T had sufficient information about costs and could have exercised choice; (5) regulatory breaches do not automatically create unfairness under Section 140A without demonstrating material impact on the debtor's decision.

How this compares

Source

Read the original decision on the Financial Ombudsman Service website