Not upheld: unfair credit relationship under Section 140A CCA; Section 75 misrepresentation claim; undisclosed commission complaint against Clydesdale Financial Services Limited (trading as Barclays Partner Finance)

Decision detail

Summary

Mr S complained that Clydesdale Financial Services Limited (trading as Barclays Partner Finance) acted unfairly by being party to an unfair credit relationship and by refusing to accept a Section 75 misrepresentation claim relating to his 2012 purchase of Fractional Club timeshare membership financed by a £21,263 credit agreement. The ombudsman found the Section 140A unfair credit relationship complaint was outside jurisdiction as it was not made within the required time limits. The Section 75 misrepresentation claim was time-barred under the Limitation Act 1980 because more than six years had elapsed between the Time of Sale and when the claim was first notified to the Lender, with no persuasive evidence of fraud or concealment to extend the limitation period. Regarding the undisclosed commission of £1,433.13 (6.74% of the amount borrowed), the ombudsman found this did not warrant compensation as the commission level was low and the borrower would likely have proceeded with the loan regardless of disclosure. The complaint was not upheld.

The Ombudsman's reasoning

The ombudsman found that the Section 140A unfair credit relationship complaint was outside the service's jurisdiction as it was not made within the required time limits. Regarding the Section 75 misrepresentation claim, the ombudsman determined it was time-barred under the Limitation Act 1980 because more than six years had elapsed between the Time of Sale (7 February 2012) and when the claim was first notified to the Lender (15 February 2023). The ombudsman rejected arguments that fraud or concealment extended the limitation period, finding no persuasive evidence of either. On the commission disclosure issue, the ombudsman found the commission level was low (6.74% of the amount borrowed) and was not persuaded that disclosure would have changed Mr S's decision to proceed with the loan, as he wanted the timeshare and had no other means to pay for it. The ombudsman also found the Supplier did not owe Mr S a fiduciary duty as it was acting as a seller of contractual rights rather than as Mr S's agent.

How this compares

Source

Read the original decision on the Financial Ombudsman Service website