Opinion: Ignorance of a state of affairs is not sufficient for section 6(4) – GGHB v Multiplex & Ors

Opinion: Ignorance of a state of affairs is not sufficient for section 6(4) – GGHB v Multiplex & Ors

Andrew McConnell and Victoria Hayward

Andrew McConnell and Victoria Hayward of Beale & Co examine a recent court judgment on prescription.

Prescription remains a very hot topic and in this article we look at the Court of Session’s approach to the application of section 6(4) and the evidence relied upon by Greater Glasgow Health Board (GGHB) in seeking to postpone the prescriptive period. 

This recent decision is important for both insurer/insured clients as prescription remains a complex area of law in Scotland. We therefore examine the implications of the decision for clients facing professional negligence claims.

Introduction

On 27 June 2025, the Court of Session released its judgment in the case of Greater Glasgow Health Board v Multiplex Construction (Europe) Ltd [2025] CSOH 56 (Court of Session judgment).

This case considered the Scots law of prescription which concerns the extinction of obligations through the passage of time, and the technical rules which sometimes postpone the start date or suspend the running of prescription.

In particular, the case carefully examined the application of section 6(4) of the Prescription and Limitation (Scotland) Act 1973.

Background

In December 2009, GGHB entered into a building contract with Multiplex Construction (Europe) Ltd for the design and construction of the Queen Elizabeth University Hospital in Glasgow. Practical completion for the project was achieved on 26 January 2015.

On 4 March 2022, GGHB served a Court of Session summons on Multiplex, alleging defects relating to the cladding in the atrium of the hospital.

The atrium consists of four cores and a link bridge between them, connecting the two sides of the building and providing access to wards. Pods are attached to the link bridge, used as break-out rooms and offices.

As designed and constructed, the atrium included cladding in the form of aluminium composite material panels, some of which had polyethylene cores. Those included:

  1. in the cores, a product called Singi;
  2. in the link bridge, a product called Alucobond; and
  3. in the pods, Alucobond and Etalbond LT.

GGHB alleged that the cladding should have met the Euroclass B-s3, d2 standard and that the products used do not meet that standard.

GGHB sued Multiplex for damages of £16,325,000, averring breaches of various provisions of the building contract. Multiplex convened the following consultants as third parties in the court proceedings:

  1. WSP UK Limited (the “Fire Consultants”);
  2. Nightingale Architects Limited (the “Architects”); and
  3. J&D Pierce (Contracts) Limited (one of the subcontractors who supplied the cladding for the pods).

Multiplex defended the action on the grounds that any claim GGHB had has prescribed (become extinguished through the passage of time) through the operation of section 6 of the Prescription and Limitation (Scotland) Act 1973 which, in general terms, provides that an obligation to which that section applies shall be extinguished if it has subsisted for a continuous period of five years without a “relevant claim” having been made (which in this case meant without a summons having been served).

Preliminary proof on prescription – Outer House of the Court of Session

Lord Braid fixed a preliminary proof on the sole question of whether any of the claims in respect of cladding in the atrium have prescribed. GGHB accepted that the obligations it sought to enforce became enforceable more than five years before the court action was raised but relied on section 6(4) of the 1973 Act, which provides that:

  1. In the computation of a prescriptive period in relation to any obligation for the purposes of this section—

    1. any period during which by reason of—

      1. fraud on the part of the debtor or any person acting on his behalf, or

      2. error induced by words or conduct of the debtor or any person acting on his behalf,

      the creditor [failed to make] a relevant claim in relation to the obligation, and

    2. any period during which the original creditor (while he is the creditor) was under legal disability,

    shall not be reckoned as, or 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.

The questions before the court were:

  1. When did the prescriptive period start to run?
  2. Does section 6(4) apply, and if so, during what period?

The second question involved considering (i) whether Multiplex had induced error in the mind of GGHB; (ii) whether any such error caused GGHB to refrain from raising a court action against Multiplex; and (iii) whether, with reasonable diligence, GGHB might have discovered the error sooner (and if so, by what date). The evidence turned on GGHB’s state of knowledge (or that of its employees) and as to what it (or they) may (or may not) have relied upon.

Decision

In terms of when the obligation became enforceable, the competing dates were (a) no later than January 2013 (the date contended for by Multiplex) and (b) 26 January 2015, the date contended for by GGHB.

Multiplex submitted that the summons made clear that it was the design obligation which Multiplex was alleged to have breached and the matter could be tested by asking if it could have been sued for the defective design at any time after January 2013, when Multiplex first sought payment of their invoice, the answer to which was clearly yes.

However, Lord Braid preferred GGHB’s submissions that the contractor’s liability for not completing works in accordance with the contract will normally arise not on the date that defective work was carried out, but on the date of completion.

Turning to section 6(4), Lord Braid confirmed that GGHB must go further than simply showing it was unaware of the issues:

“GGHB did not lead evidence from any Board member, nor did it lead any evidence as to what the Board’s state of mind actually was, (as opposed to what it “would have been”, which several witnesses purported to speak to). It now seeks to argue that the witnesses who did give evidence were officers or employees of the company who were acting as its agents. There are at least two difficulties with that approach. First, it is not foreshadowed to any extent in the pleadings. Second, none of the witnesses 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. That is essentially fatal to GGHB’s claim that prescription was suspended through the operation of section 6(4)… 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 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.”

Lord Braid also held that GGHB was required to carry out its own investigations into the as-built condition of the atrium.

GGHB had failed to comply with guidance set out in a policy document issued by the Scottish Government which contained the fire safety policy for NHS Scotland (referred to as the CEL (Chief Executive Letter) 11). GGHB needed to know what was in the building and checks to be undertaken at the point of handover would have led to inquiries being made as to what products had been installed.

In failing to comply with CEL 11, GGHB failed to exercise reasonable diligence within the meaning of section 6(4) of the 1973 Act and therefore even if Lord Braid had found that GGHB had been induced into error by Multiplex, he would have found that prescription would have resumed running from May 2016 (when GGHB would have discovered the defects if they had exercised reasonable diligence).

Comment

This case demonstrates that it is not enough to show ignorance as to a state of affairs in reliance on section 6(4) – a pursuer must establish by evidence that somebody was induced by error. For large organisations, it can be difficult to show that a specific person was induced by error.

Those acting on behalf of defenders should consider (a) inserting calls into pleadings to call upon the pursuer to disclose the natural person that they say was induced into error and (b) using specifications of matters to obtain the name of that person.

The decision is certainly helpful from an insurer/insured client perspective when faced with complex professional indemnity construction claims. Previously, a pursuer did not have to rely on much evidence to establish the test under section 6(4) but the courts are clearly now adopting a much more strict approach to the provision.

While the issue of prescription remains a complex area of law in Scotland, it is no longer enough for a pursuer to simply rely on everyday conduct such as providing services, accepting payments or giving assurances about work undertaken to rely on section 6(4) to interrupt and postpone the prescriptive clock.

While the case is fact sensitive, it is certainly a welcome approach from a defender’s perspective when defending professional negligence claims.

Andrew McConnell is a partner and Victoria Hayward is a solicitor at Beale & Co, where they act on behalf of professional indemnity insurance clients

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