No claim, no excuse: Inner House reinforces strict approach to prescription

Construction disputes continue to provide fertile ground for arguments over the operation of section 6(4) of the Prescription and Limitation (Scotland) Act 1973 (“the PLSA”).

Prescription is a doctrine in Scots law which (subject to certain “saving provisions” such as those which are the subject of this article) operates to extinguish certain obligations within 5 years, should a pursuer fail to either bring a relevant claim or acknowledge a relevant claim within that time-frame.

This article examines the recent decision of the Inner House of the Court of Session to refuse a reclaiming motion (appeal) by Greater Glasgow Health Board of the first instance decision of Lord Braid in Greater Glasgow Health Board v Multiplex Construction and Others [2025].

The appeal considered the application of the commonly relied upon “error” saving provision under section 6(4) of the Act, within the context of a construction defect claim.

Section 6(4) explained 

Section 6(4) is frequently relied upon by pursuers to argue that the “standard” 5-year period has been suspended for a defined interval and therefore ought not to be considered as part of the prescriptive period.

Section 6(4) excludes from consideration any period of time in which a creditor failed to raise a relevant claim due to

1. fraud on the part of the debtor or person acting on his behalf
2. error induced by words or conduct of the debtor or any person acting on his behalf or
3. any period during which the original creditor (while he is the creditor) was under legal disability.

The intention behind the fraud and error provisions is to protect someone who does not claim against another because of the latter’s actions.

This provision commonly enters the fray in construction disputes, particularly where latent defects  are at issue. Pursuers will argue that they were under error as to the presence of such defects due to assurances from or representations made by a defender.

The decision of the Outer House 

In June 2025,  the Court of Session issued its judgement in Greater Glasgow Health Board (“GGHB”) v Multiplex (“MPX”) following a preliminary proof (evidential hearing) on prescription.

The case was brought by GGHB, a health board, against MPX, a construction company, in connection with alleged cladding defects  installed at the Queen Elizabeth University Hospital in Glasgow. The sum sued for was circa £23 million.

GGHB attempted to rely upon section 6(4) to advance an argument that, although the claim had been brought 5 years after practical completion of the hospital, it had been operating under error for a number of years due to representations made by MPX.The time period had accordingly been suspended during that period.

MPX argued that the representations relied upon by GGHB were not sufficient to engage section 6(4) due to

1. their “everyday” nature and
2. that GGHB had failed to lead any evidence that it had been induced into error by MPX.

The court ultimately found in favour of MPX. Lord Braid, the presiding judge, was clear that a pursuer must lead evidence which speaks to what their state of mind actually was, to rely on the error provisions of 6(4), as opposed to what it “would have been” at the time.

The court was also clear that ignorance of an issue does not equate to labouring under a state of error. Lord Braid referred to the following helpful analogy;

“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.”

The key takeaways from the decision are

1. it is not enough for a pursuer to simply plead ignorance of any claimed defects; the onus is on it to prove that it was persuaded or incited to abstain from raising a claim due to words or conduct on the part of a defender and
2. the pursuer’s actual erroneous state of mind must be supported by evidence, rather than retrospective conjecture as to what it might have been.

The decision of the Inner House on appeal 

GGHB appealed the Outer House decision to the Inner House of the Court of Session.

GGHB’s grounds for appeal (in so far as section 6(4) was concerned) were broadly that Lord Braid had erred

1. finding that inducement of error required “a representation of some sort by the debtor” because relevant conduct may include silence or activity
2. in failing to consider whether MPX’s conduct contributed to inducing error on GGHB’s part and
3. in requiring GGHB as creditor, as opposed to MPX as debtor, to prove when the period of error should have ended through reasonable diligence.

The court was unsympathetic to the arguments presented by GGHB.

A fundamental issue for GGHB was that it had not challenged any of Lord Braid’s findings of fact which ultimately presented to GGHB “insurmountable difficulties” in challenging Lord Braid’s conclusions.

The court was very clear that it was for GGHB to prove that it had been misled by MPX which prevented it from making a claim on time. The simple point was that GGHB had not led any evidence regarding any erroneous state of mind on its part at the material time at proof. The absence of that evidence itself had been fatal to its reliance on section 6(4).

The court was also unconvinced by GGHB’s position on the correct interpretation of section 6(4), which broadly amounted to an argument that a failure to “speak up” about a breach of contract or defect permits reliance by a pursuer on section 6(4).

The court reiterated that a mere assertion that a debtor had performed its obligations or has not been negligent does not permit reliance upon section 6(4). It said the approach advocated for by GGHB would render section 6(4) to be “meaningless”.

The point made by the court can perhaps be demonstrated via a practical example. Suppose a contractor in a construction project has been negligent, knows it has been negligent but does not positively say to the pursuer in terms “I have been negligent”.  The pursuer cannot say the mere absence of that statement is sufficient to amount to words or conduct inducing error for section 6(4) purposes.

That makes a good deal of practical sense because, as the court identified, the result of interpreting section 6(4) in such a fashion would effectively render it to have no purposeful effect. It would mean in any case a defender had been negligent but had not expressly stated that fact (contrary to its own interests) the pursuer could point to that as excusing a failure by its own hand to bring a claim timeously.

As the court indicated, such an approach would contravene the parliamentary intention sitting behind the PLSA, which is to prevent the bringing of stale claims.

Comment

The decision of the Inner House in Greater Glasgow Health Board v Multiplex Construction and Others [2026]  provides additional comfort for defenders that neither

1. mere ignorance on the part of a pursuer nor
2. an assurance by a defender which simply amounts to confirmation that it has complied with contractual obligations or has not been negligent will suffice as conduct invoking section 6(4) of the PLSA.

The courts have emphasised there is no duty in Scots law upon a party to act contrary to its interests in disclosing a breach of its obligations. A mere failure to “speak up” about such a breach cannot be relied upon as conduct invoking section 6(4).

What is also clear is that the onus sits firmly with the pursuer to prove that it has been positively persuaded or incited to refrain from making a relevant claim by a defender’s actings. 

This does not allow a defender, acting  in bad faith, to escape from a claim by reason of their own positive erroneous assurances. Instead, both decisions clarify important and logical “checks” on the ability of pursuers to excuse themselves from compliance with the “standard” period to raise their claim where induced error is relied upon to argue that the prescriptive period was suspended.

It will no doubt be of interest to see how this (very) complex area of law continues to develop.