Our client had sold a pony after advertising it on social media.  The pony had measured 128cm when it was last measured and our client advertised it as a 128cm pony.  Some months after the sale the pony was measured again and, on this occasion, measured 130.7cm.  The purchaser raised an action against our client for damages for breach of contract (or alternatively misrepresentation).  He argued that the pony was not 128cm and so our client misdescribed it in the advert. 

After a proof (trial) in the Sheriff Court the Sheriff decided against our client and found her liable to pay damages.  We appealed to the Sheriff Appeal Court on the basis that the Sheriff erred in his decision as he had no basis on which to conclude that the pony was not 128cm when it was sold.  The only evidence before the Sheriff had been that some months before the sale the pony measured 128cm, some months after the sale it measured 130.7cm together with evidence that a pony's height can vary on different occasions (due to factors such as how it was prepared for measurement, its condition and how relaxed it is). 

The Sheriff Appeal Court agreed with our submissions and overturned the Sheriff's decision. In reaching its decision, the court (in a decision given by Sheriff Principal Stephen QC) found that as there was no single absolute height for a pony a snapshot of the pony's height on a particular day was not of assistance. The pursuer had to prove that the pony did not measure 128cm as at the date of the contract of sale and he had failed to do so.

The Sheriff Appeal Court also explained that the expert evidence led by both parties did not assist the pursuer. There were, according to the decision "two conflicting but perfectly valid measurements by reputable and experienced veterinary surgeons, neither of whom would criticise the other's methodology or the result". Indeed, the pursuer's expert had accepted in evidence that 128cm might be the lowest measurement.

Accordingly, the court held that our client was not liable to make any payment of damages and found the pursuer liable to pay her the expenses of the entire court action to date.