"That which can be asserted without evidence, can be dismissed without evidence."

"That which can be asserted without evidence, can be dismissed without evidence."

How are the Courts approaching potential delay of proceedings amidst the coronavirus pandemic?

"That which can be asserted without evidence, can be dismissed without evidence." Christopher Hitchens.

It is not for a defendant to disprove an unproven case, but rather for the claimant to produce sufficient evidence to support its allegation. In MG Construction Ltd v AGD Equipment Ltd [2020] ScotCS CSOH 72, the Outer House of the Court of Session has reminded us of this, dismissing a claim on the basis that the claimant had failed to prove its case.


The claimant, a construction company (MG Construction), purchased a pile driving hammer from the defendant (AGD Equipment) which failed while in use on a construction site. Although the manufacturer replaced it, this caused delay to the contract and MG Construction raised an action against AGD Equipment for recovery of the amount paid in settlement for breach of the construction contract, loss of profit on the remaining work due to be carried out, legal costs, consultancy fees and lost director’s time. MG Construction claimed that the hammer was not of satisfactory quality under s14 of the Sale of Goods Act 1979.

The piling hammer, used for pile driving, is attached to a leader which acts as a guide for the hammer. Part of the mechanism that acts as a guide is the “ram box”, which had broken into two parts and the hammer collapsed. On inspection of the failed hammer, it became apparent that it had sheared along the line of a pre-existing crack which had been repaired by welding.

Five days prior to the hammer failure, Mr Jack, one of MG Construction’s employees, carried out an inspection after a foreman had noticed a blemish on the ram box. Mr Jack produced a report which stated, “Noticed small crack in paintwork on side shift ram box section. Applied weld to crack for visual check” but this was a separate weld to the repair weld along the crack.

MG Construction claimed that it had not made the weld along the pre-existing crack and so it must have been made prior to delivery. AGD Equipment denied this and said that it must have been misused after delivery which caused it to fail.

There was no dispute between the parties that the failure was caused by the poor quality of the weld and the dispute centred on the question of when the weld was undertaken. Ultimately, the claim came down to whether MG Construction could prove that the weld had been made prior to delivery or whether it was caused on site. There was no onus on AGD Equipment to prove its position, but rather for MG Construction to establish that on the balance of probabilities, the weld was undertaken prior to delivery of the hammer.

MG Construction presented evidence that there had never been any recorded misuse of hammers in the 28-year history of the company and that the equipment was regularly inspected. However, its factual witnesses did not include Mr Jack who was working offshore in South Africa and had refused to participate. Additionally, MG Construction had lost the smaller section of the broken ram box and this was therefore not presented as evidence.

AGD Equipment submitted that in the absence of evidence from Mr Jack and the fact that the part was not available for inspection, MG Construction had failed to discharge the onus to prove the hammer was not of satisfactory quality.


The court held that the fundamental difficulty MG Construction faced was that it had not led Mr Jack in evidence. Without hearing from him, the court was unable to determine whether what he wrote in his report was true and there was no evidence on whether or not he made the weld. The court noted that there are a number of mechanisms that can be used to ensure that the evidence of a key witness is before the court and MG Construction did not seek any of these solutions, instead proceeding in the absence of an essential witness.

The court held that the evidence did not prove, on the balance of probabilities that the weld was not made by Mr Jack and the circumstantial evidence did not prove, on the balance of probabilities that the weld was made before delivery. As MG Construction had failed to satisfy the onus on it to prove its case on the balance of probabilities, the case was dismissed.


The judge observed that “no judge likes to decide cases on burden of proof if he can legitimately avoid having to do so” but that “there are cases, in which owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take”. The case serves as a useful reminder that in the absence of sufficient evidence to support a claimant’s allegation, the court will have no option but to dismiss the claim.

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