Not upheld: Goods and services under S75 complaint against Shawbrook Bank Limited

Decision detail

Summary

Mr and Mrs M purchased Fractional Club timeshare membership for £11,238 in November 2016, financed by Shawbrook Bank Limited. They complained in February 2023 that the supplier misrepresented the product as an investment and guaranteed end date, that they could not holiday as promised, and that the lender was party to an unfair credit relationship. The ombudsman found no actionable misrepresentation or breach of contract by the supplier. While acknowledging the supplier may have breached Timeshare Regulations by marketing the product as an investment, the ombudsman found this was not material to the complainants' decision, as their own evidence was unreliable and lacked detail about investment motivations. The lender's affordability checks were adequate, and the credit relationship was not unfair. The complaint was rejected in full.

The Ombudsman's reasoning

The ombudsman applied a holistic assessment under Section 140A of the CCA, examining the supplier's sales practices, information provision, and regulatory compliance. While acknowledging the possibility that the supplier may have breached Regulation 14(3) by marketing membership as an investment, the ombudsman found this was not material to the complainants' purchasing decision. The complainants' own evidence contained significant factual errors (wrong lender, wrong number of fractional points) that undermined the reliability of their recollections. The statement lacked sufficient detail about what was said regarding investment aspects. Crucially, the ombudsman found no evidence that the prospect of financial gain was a motivating factor in their decision. The ombudsman distinguished this case from the Supreme Court's Johnson case, noting the absence of a commission payment at the time of sale and the lack of evidence of a fiduciary duty owed by the supplier. The lender's affordability checks were not shown to be deficient, and the complainants did not exercise their 14-day cooling-off period.

How this compares

Source

Read the original decision on the Financial Ombudsman Service website