Sheriff Appeal Court overturns ruling in breach of contract case over show-jumping pony

Richard Mawson raised an action for “breach of contract” and “misrepresentation” against Anne Morris after purchasing the Connemara pony called Shy Strikes Again in March 2016 for £9,000, having seen it advertised on Facebook with its height given as 128cm.

But six months later, when officials at the Joint Measurement Board (JMB) of the British Show Jumping Association (BSJA) asked for another measurement, the 15-year-old gelding’s height was recorded at 130.7cm.

A sheriff found in Mr Mawson’s favour, having considered that the pony did not match the description.

But the Sheriff Appeal Court allowed Ms Morris’s appeal after ruling that there was in fact “no evidence” before the sheriff of the height of the pony at the date of sale.

‘Gold certificate’

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Marysia Lewis and Appeal Sheriff Norman McFadyen, heard that the appellant advertised the pony for sale in early 2016 as a “JA”-grade 128cm gelding, and that following a successful trial by the pursuer’s nine-year-old daughter the contract of sale was concluded on 1 March 2016.

At the time of the sale the appellant was in possession of a height certificate dated 11 June 2015, which was provided by a vet and which recorded the pony’s height as 128cm, but it was only valid until the end of that year.

Subsequently, the pursuer’s daughter competed in several events with Shy Strikes Again (SSA), but at the end of May 2016 the pursuer was required to provide a JMB height certificate, and the pony’s registration with the BSJA was suspended pending that being done.

On 14 September 2016 the pursuer arranged for the pony to be measured by another vet, in the presence of a JMB official, who issued a gold certificate which recorded the height as 130.7cm, which meant the gelding was not suitable to compete in the JA class under-12 category, which only admitted ponies up to 128cm.

‘Breach of contract’

The pursuer raised an action claiming that the pony did not match the description in respect of its height at the date of sale and therefore the defender was in breach of contract, as it was an implied term under section 13(1) of the Sale of Goods Act 1979 that the goods will correspond with the description.

The court was told that ponies would not naturally grow in height after the age of eight and that as an adult pony 15 years old at the time of sale, Shy Strikes Again - who died from natural causes in 2017 - would not have grown in height between 11 June 2015 and 14 September 2016.

The sheriff noted that there was no evidence as to the height of the pony on the day of the contract of sale and that there were “two conflicting measurements”, but found that the gold certificate measurement carried with it “higher authority” and was “more reliable”, leading to the conclusion on the balance of probabilities in finding in fact 23 that the pony after purchase by the pursuer measured 130.7cm and “did not conform to the description ‘128 JA’” and that the defender “breached the contract of sale”.

‘Sheriff erred’

On behalf of the appellant, it was submitted that the sheriff “erred” when he felt compelled to “pick a winner” between the two measurements.

The crucial question ought to have been “what was the height of the pony at the date of sale?” In other words, did the pony conform to the sale description?

There was no evidence before the sheriff to allow him to hold that the pursuer had proved that the pony was not 128cm at the date of sale and having failed to discharge that onus the pursuer’s case had to fail.

The solicitor for the pursuer and respondent argued that the sheriff was entitled to prefer the evidence of the second measurement and was therefore entitled to find that the defender and appellant had breached the contract and misrepresented the height of the pony to the purchaser.

However, the appeal sheriffs ruled that the sheriff “addressed himself to the wrong question”.

‘Correct question’

Delivering the opinion of the court, Sheriff Principal Stephen said: “It appears to us that had the sheriff addressed the correct question - ‘on the balance of probabilities did the pony conform to a height measurement of 128cm as at the date of the contract of sale?’ - he would have been bound to answer that question with an acknowledgement that there was no evidence of the pony’s height at the date of sale and that he could not find that the pony when advertised for sale and at the point of sale was not 128cm as described by the defender and appellant.

“For the reasons we give we consider that the sheriff addressed himself to the wrong question and therefore the answer he reaches in the second sentence of finding in fact 23 and in his finding in fact and law is not one he is entitled to reach on the evidence before him. Of course, it was open to the sheriff to make the finding he does in the first part of finding 23 with reference to the measurement on 14 September 2016. However, that has little relevance to the issue before him.

“We have come to the conclusion that on his findings in fact and the helpful analysis provided by the sheriff of the evidence led before him, he was not entitled to come to the conclusion that the pursuer had proved on balance of probabilities that the pony was not 128cm as described by the defender when offering the pony for sale and at the point of sale. The sheriff ought not to have concluded that the defender was in breach of contract nor that the defender misrepresented SSA’s height by advertising him as a 128cm pony.”