On 27 June 2025, the Court of Session released its judgment in the case of Greater Glasgow Health Board (GGHB) v Multiplex Construction (Europe) Ltd [2025] CSOH 56. This case is the latest to discuss the Prescription and Limitation (Scotland) Act 1973 (the “1973 Act”), and in particular what are commonly referred to as the “saving provisions” of sections 6(4) and 11(3) which operate as exceptions to the ordinary rule that a claim will be extinguished if it has existed for five years without a relevant claim being made.
In this case, the Court found that GGHB were unable to bring themselves within the saving provisions and found in favour of Multiplex, holding that GGHB’s case had prescribed and could not therefore proceed.
Background
In 2009, GGHB and Multiplex entered into an NEC3 Contract for the design and construction of the new Queen Elizabeth University Hospital in Glasgow. Practical Completion of the works was granted on 26 January 2015.
This claim concerned cladding installed in the 13 storey atrium of the adult hospital (the “Atrium”). The Atrium consists of four cores, a link bridge between two cores and a number of coloured “meeting pods” built out from the link bridge. The Atrium was clad with aluminium composite material (ACM) panels, some of which had polyethylene cores. The panels included:
- Signi to the cores;
- Alucobond to the link bridge; and
- Alucobond and a Etalbond L to the meeting pods.
The presence of these materials was discovered through reviews carried out in light of the Grenfell Tower Inquiry and, on 4 March 2022, GGHB raised a claim seeking payment of more than £23million.
Multiplex brought its supply chain into the dispute through a combination of third-party procedure and standalone claims. Those parties were:
- WSP UK Limited (the Fire Engineer for the Project)
- Nightingale Architects Limited (the Architect for the Project)
- J&D Pierce (Contracts) Limited (one of two subcontractors who carried out the works, the other having been placed in liquidation)
A two-week hearing on prescription took place in March 2025. As in all cases involving prescription, the claims made by GGGHB were treated as true. The assumed facts for the hearing were therefore taken to be:
- There was a contractual requirement for all cladding materials to meet Euroclass B-s3, d2 standard (Euroclass B for short)
- None of Alucobond, Etalbond or Signi met that requirement; and
- Multiplex was therefore in breach of its contractual obligations to GGHB.
The issue in question was therefore whether, in making its claim some seven years, one month and seven days after practical completion, GGHB was able to bring itself within either of the saving provisions of the 1973 Act.
GGHB position
GGHB argued that it could rely on s6(4) of the 1973 Act to protect its position. S6(4) sets out:
“In the computation of a prescriptive period in relation to any obligation for the purposes of this section -
- (a) any period during which by reason of
(i) fraud on the part of the debtor or any person acting on his behalf, or
(ii) error induced by words or conduct of the debtor or any person acting on his behalf
the creditor was induced to refrain from making a relevant claim in relation to the obligation... shall not be reckoned as part of the prescriptive period:
Provided that any period such as is mentioned in paragraph (a) of this subsection shall not include any time occurring after the creditor could with reasonable diligence have discovered the fraud or error, as the case may be, referred to in that paragraph.”
GGHB argued that it was in error as to the materials which had been installed and the fact that they did not comply with the contract. It sought to rely on a number of active and passive steps taken by Multiplex, including applications for payment, emails and not raising an alert an earlier stage in support of this position.
Multiplex position
Multiplex argued that none of steps which GGHB relied upon were capable of engaging s6(4), as most of the steps amounted to everyday conduct, and thus didn’t engage the provisions. It also argued that GGHB failed to provide any evidence which showed any error on the part of GGHB.
Multiplex also led evidence to support its position that even if GGHB was able to bring itself within the protection of s6(4), then its claim would still fail as standalone duties applied under a document known as CEL11 for GGHB to carry out its own check regarding the information relating to the materials installed. If this had been done, any potential issues would have been identified at a far earlier date.
Decision
Lord Braid agreed with the arguments put forward by Multiplex. He noted that “none of the witnesses [led by GGHB] gave evidence that they were in fact induced into error, at the time, by any of the things now relied upon by GGHB as having induced error on its part” and that was “essentially fatal” to GGHB’s argument. It was not enough for evidence to show GGHB did not know about the properties of the materials and the breach of contract – it had to show that they had been led into that error by Multiplex’s actions.
He also found in favour of Multiplex’s argument on CEL11 – holding that (as supported by evidence from experts acting for both Multiplex and GGHB) that GGHB was placed under standalone duties to know what materials were in its building, and that checks carried out at or around handover would have uncovered a lack of clarity around those materials. This would have led to further questions and, in due course, relevant information about those materials coming to light. In failing to meet these duties, GGHB had not exercised reasonable diligence and therefore, even if Lord Braid was wrong in his primary decision, he would have held that the proviso to s6(4) applied, and GGHB’s claim was out of time.
Looking forward
This decision has provided some welcome clarification as to the scope of the protections offered by clause 6(4) of the 1973 Act. It has shown that a pursuer who wishes to rely on these provisions will have to lead clear evidence of the state of mind of the party making the claim and also of the inducement which was made by the debtor. In the absence of such evidence, the claim is unlikely to succeed.
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