On 31 March 2026, three judges in the Inner House of the Court of Session (the Scottish Appeal Court) refused an appeal by Greater Glasgow Health Board (“GGHB”) in respect of a first instance decision that GGHB’s claim against Multiplex Construction (Europe) Ltd (“Multiplex”) had prescribed.

Background Facts

In 2009, GGHB and Multiplex entered into a contract for the design and construction of the Queen Elizabeth University Hospital in Glasgow (the “Hospital”). Practical Completion occurred on 26 January 2015. Thereafter, GGHB alleged a number of issues in relation to the construction of the Hospital which were set out in a Summons raised in January 2020.

However, purported issues in relation to the 13-storey atrium of the adult hospital (the “Atrium”) were not included in that first claim and were the subject of a separate action raised on 4 March 2022. In that action, GGHB sought payment of more than £23million. Multiplex brought it's architect (Nightingale Architects Limited) and fire engineer (WSP UK Limited) (together the “Third Parties”) into those proceedings.

As with all hearings on issues of prescription, GGHB’s factual case – for the purpose of the prescription hearing only – was treated as accurate. The case therefore proceeded on the basis that GGHB’s claims that the ACM cladding installed to the cores, link bridge between the cores and the external walls of meeting pods which overhung the Atrium all failed to meet the requirements of the contract on the basis that the did not achieve a fire classification of Euroclass B-s3, d2 or better, were true.

However, Multiplex (and the Third Parties) argued that – even if everything which GGHB had claimed was true – the claims still came too late and were extinguished by the provisions of the Prescription and Limitation (Scotland) Act 1973 (the “1973 Act”). This is because the default position under the 1973 Act is that where a claim is raised more than five years after it became enforceable (in this case at practical completion) then it is time barred unless the pursuer can bring itself within one of the two exceptions to the general rule:

  • Section 6(4) – which allows any period where the pursuer has refrained from making a claim due to an error which has been caused by the defender to be deducted from the calculation of the time which has passed. 

It should be noted that this saving provision does not apply to any period when the pursuer ought to have been aware of their error (this will be important later) by the application of reasonable diligence.

  • Section 11(3) – which allows the commencement of the five year period to be delayed in relation to any the pursuer was not and could not with reasonable diligence have been aware of the fact that loss injury or damage had occurred

First Instance Decision

As discussed in our previous article, the judge at first instance, Lord Braid, held that Multiplex’s arguments were well founded and that GGHB had not been able to bring itself within either of the two saving provisions of the 1973 Act. Lord Braid found that:

  • GGHB had not led any evidence to show that either (i) the witnesses themselves; or (ii) GGHB as a corporate entity had been induced into error by any of the factors relied on in support of the case it made in respect of s6(4).
  • In any event, GGHB had failed to follow the guidance set out in CEL 11 – a letter issued to all Scottish Health Boards by the Scottish Government setting out requirements that Heath Boards required to meet in terms of assuring fire safety in the Hospital. This was a failure to exercise reasonable diligence, meaning that the exception to the saving provision applied.

The Appeal

GGHB sought to appeal the first instance decision, arguing that Lord Braid’s decision was incorrect. GGHB claimed it had presented sufficient evidence to utilise the protections of the saving provisions, and that reasonable diligence – based on the factual position at the time – would not have led them to discover the situation with the Atrium at an earlier time.

Multiplex and the Third Parties argued that the decision of Lord Braid was correct, and that the Inner House should adhere to that decision.

Evidence

The Inner House noted that it was “important to note that GGHB did not identify any new or additional findings-in-fact which it said should be substituted for the factual findings made by the commercial judge” and that the factual findings made by Lord Braid therefore remained in place. They noted that this created “major and ultimately insurmountable difficulties for [GGHB] in challenging his conclusions on induced error” as Lord Braid had “carefully considered all the evidence and arrived at reasoned conclusions based on his factual findings.”

The decision confirmed that the fact that “GGHB led no evidence from any Board member, nor evidence as to what the Board’s state of mind actually was as opposed to what it “would have been” “ was fatal to its arguments that it should be afforded the protections of s6(4). There was no evidence presented that GGHB had been misled by Multiplex and GGHB’s arguments were therefore unsuccessful.

The Court went on to note that GGHB’s position that a failure to disclose the presence of defects on the part of Multiplex was sufficient to bring it within the scope of s6(4) – if correct – would effectively render a s6(4) argument as self-proving. This was rejected by the Inner House and described as not a “tenable interpretation of the provision.”

Reasonable Diligence

Again, the Inner House affirmed the first instance decision. They noted that the “stumbling block for GGHB was the failure to comply with its own requirements (CEL 11), something that would clearly be expected of any owner of premises of that type” and that, had it done so, “GGHB could have discovered the error almost immediately after completion”.

This meant that the additional six months which Lord Braid had allowed was “arguably generous”. Coupled with the fact that there was no challenge to the evidential basis on which Lord Braid’s decision regarding reasonable diligence had been made, meant that this argument also failed.

Conclusions

The effect of this is that GGHB’s claim against Multiplex is time barred and cannot proceed.

It also shows that the Court are taking a strict approach to the application of the saving provisions – as Lord Pentland notes “[t]he court’s duty is to apply the language Parliament has chosen to use when prescribing the conditions which must be met before the operation of the normal rules on prescription can be relaxed.”

If there is insufficient evidence for a pursuer to bring themselves within the language of the 1973 Act – or if the evidence suggests that the pursuer has failed to use reasonable diligence – then claims which are more than five years old are likely to fail.

Contributors

Eric Johnstone

Legal Director

Louise Shiels

Head of Dispute Resolution and Risk & Partner