Lord ordinary dismisses action against builders of Queen Elizabeth Hospital in respect of defective cladding

About this case:

• Citation:
  [2025] CSOH 56
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Greater Glasgow Health Board raised the action against Multiplex Construction Europe Ltd (MPX) and others asserting that it was entitled to damages in excess of £16 million for alleged defects in the hospital. MPX counterclaimed for repayment of sums it paid to GGHB pursuant to two adjudication decisions, which it argued were wrongly decided in fact and in law. The claim in relation to the cladding was not included in another claim served on MPX alleging defects in other parts of the hospital, which remained before the court.

The action was heard by Lord Braid in the Outer House of the Court of Session. Moynihan KC and Broome, advocate, appeared for the pursuer and MacColl KC and A Mckinlay, advocate, for the defenders.

Routine matters

In December 2009 GGHB entered into a building contract with MPX for the design and construction of Queen Elizabeth University Hospital. It was the pursuer’s case that the cladding used in the atrium of the adult hospital, a 13-level structure designed as the central concourse of the building, did not meet the Euroclass B-s3, d2 standard, contrary to the provisions of the Building Contract. GGHB accepted that the action had commenced more than five years after the obligations it sought to enforce became enforceable but argued that the statutory requirements to stop the prescription clock had been met.

The pursuer, relying on section 6(4) of the Prescription and Limitation (Scotland) Act 1973, stated that it had been led into error in not knowing that the cladding panels were not of the Euroclass B standard. It cited a number of representations made by MPX which it said had induced error, including seeking payment for work including the cladding and its failure to tell GGHB what it knew on relevant dates in 2018, when the Scottish Government began to investigate the use of ACM products in NHS buildings.

For MPX it was submitted that the summons made it clear that it was alleged to have breached the design obligation of the contract rather than the construction element. The matter could be tested by asking if it could have been sued for the defective design at any time after January 2013, when MPX first sought payment, to which the answer was clearly yes.

In relation to the specific matters raided by GGHB, it was submitted that none of them were capable of engaging section 6(4), as they were simply everyday, routine matters which were not out of the ordinary. In any event, none of the circumstances prayed in aid were in fact spoken to as having been relied upon by any of GGHB’s witnesses who gave evidence.

Further than unaware

In his decision, Lord Braid began with an assessment of MPX’s obligations: “The core obligation on MPX was to provide the works, as required by Clause 20.1 of the contract. That included both a design and a construction, element, but it is significant that MPX was not to proceed with work until its design had been accepted by the project manager; and that a reason for not accepting the design was that it did not comply with the Works Information. Thus, I do not accept MPX’s submission that it would have been open to GGHB to sue MPX in respect of a defective design before the date of sectional completion.”

Turning to the section 6(4) case, Lord Braid said: “Ignorance of a state of affairs is not necessarily the same as labouring under an error as to that state of affairs. If I venture outside without an umbrella, not knowing whether it is raining or not, I cannot to be said to have been in error as to the weather conditions. On the other hand, if I am told that it is sunny, when in fact it is raining, then I will have ventured out under error. For this reason, it does not avail GGHB for [its witness] Mr Steele to say, as he did, that had GGHB known of the issue with the atrium cladding, that issue would have been included in the 2020 action. That is no doubt true, but GGHB must go further than simply showing it was unaware of the issue.”

He added: “As senior counsel for MPX submitted, if GGHB’s argument were correct, virtually every section 6(4) case would become self-proving. It is one thing to say that MPX might have been well-advised to have alerted GGHB to the potential difficulty in 2018, quite another to say that their failure to do so gave rise to any cause of action against them, let alone that it induced error such as to interrupt prescription.”

Lord Braid concluded: “I find that there is no principle of Scots law which requires a party to a contract to act against its own interest; even if there was such a principle which could arise in certain special circumstances, it has no bearing on the operation of prescription; and MPX’s silence in March 2018 was not such as to trigger the operation of section 6(4).”

Decree of absolvitor was therefore granted in favour of MPX and the second defender in the principal action. The case was put out by order to discuss further procedure in respect of MPX’s counterclaim.