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Multiplex Construction Europe LTD against WSP UK Ltd (Court of Session) [2025] CSOH 59 (27 June 2025)
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[2025] CSOH 59
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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 59
CA83/24
OPINION OF LORD BRAID
In the cause
MULTIPLEX CONSTRUCTION EUROPE LIMITED
Pursuer
against
WSP UK LTD
Defender
Pursuer: MacColl KC, A Mckinlay; Brodies LLP
Defender: Barne KC, Blair; CMS Cameron McKenna, Nabarro & Olswang LLP
27 June 2025
Introduction
[1]
This is the "downstream" action against WSP UK Ltd, referred to in my opinion of
today's date in the action by Greater Glasgow Health Board (GGHB) against Multiplex
Construction Europe Ltd (MPX) and another (CA80/24) (the principal action). That opinion
should be referred to for a full account of the factual background and the legal principles in
play, and requires to be read in conjunction with this one for a full understanding of the
case. In this action, MPX concludes for (1) declarator that WSP is in breach of both its
contract with, and its duty of care to, MPX and that it is liable in damages to MPX;
(2) declarator that WSP has infringed the rights of Others (as that term is defined in the
2
Conditions of Contract) and is accordingly liable to indemnify MPX against "claims,
proceedings, compensation and costs" payable arising out of such infringement; and
(3) payment of damages of £23,380,407.80 in respect of the alleged atrium defects. It should
be noted that whereas the principal action concerned only the cladding in the atrium, the
declarators sought in this action relate to both that cladding and the external cladding.
However, reflecting the position in the principal action, the preliminary proof before answer
in this action was restricted to the sole question of whether or not MPX's claim against WSP
in respect of the atrium cladding has prescribed.
[2]
For the reasons stated in my opinion in CA80/2024, I have found that GGHB's claim
against MPX in respect of the atrium cladding has prescribed under the Prescription and
Limitation (Scotland) Act 1973, and that MPX is entitled to decree of absolvitor.
Consequently, it follows that insofar as the present action is founded upon a breach of
contract and breach of common law duty by WSP in respect of that cladding, WSP is
likewise entitled to decree of absolvitor. However, lest my decision in the principal action
turns out to be wrong, I will consider whether MPX's claim against WSP has in any event
prescribed. It is also necessary to consider whether any claim under the indemnity has
prescribed.
Date of service
[3]
Service of the summons was effected on WSP on 6 December 2021
principal action, the prescriptive period is five years from the date when the obligation or
obligations owed by WSP to MPX became enforceable, subject to any arguments open to
1
This was the date agreed by joint minute, although the certificate of service in process gives a date of
3 December 2021. Nothing turns on the discrepancy.
3
MPX that the commencement of prescription was delayed by section 11(2) or (3) of the
1973 Act, or that its running was suspended by the operation of section 6(4).
The breach of contract/fault case
[4]
MPX avers, in Article 14, that WSP was in breach of various obligations under the
WSP contract and at common law in preparing a fire safety design strategy (FSDS) which
was defective in respects detailed in Article 11; and, in Article 15, that it was in breach of
those various obligations by approving and/or permitting and/or failing to prevent the use
of non-compliant cladding panels.
The indemnity case
[5]
MPX avers, in Article 18, that WSP is obliged to indemnify MPX under and in terms
of Clause 80.1 of the Conditions of Contract forming part of the WSP contract. That clause is
in the following terms.
"80.1 [WSP] indemnifies [MPX] against claims, proceedings, compensation and costs
payable arising out of an infringement by [WSP] of the rights of Others, except an
infringement which arose out of the use by [WSP] of things provided by [MPX]."
The issues
[6]
The issues in this action insofar as it relates to the breach of contract (and breach of
duty) case are, as in the principal action: when did prescription begin to run (in particular,
was its commencement postponed by either section 11(2) or 11(3) of the 1973 Act); and, was
the running of prescription suspended through the operation of section 6(4). In that latter
regard, MPX now relies on the collateral warranty granted by WSP in favour of GGHB in
March 2011 and the statement of design compliance signed by WSP on 22 January 2015. As
4
described in my opinion in CA80/2024, by the collateral warranty WSP warranted and
undertook to GGHB, among other things, that it had complied and would continue to
comply with all the terms and obligations incumbent on it under its contract with MPX, and
would complete its services in accordance with that contract; and that it had not and would
not specify for use in relation to the project any products or materials not in conformity with
relevant British or European standards. The statement of design compliance certified that
the prepared design had been carried out with the requisite care and skill.
[7]
The issue in relation to the indemnity claim is simply, when did prescription begin to
run. There is also an issue between the parties as to whether the indemnity is engaged at all,
but strictly speaking that issue falls outwith the scope of the preliminary proof.
Decision
The breach of contract case
When did prescription begin to run?
[8]
The earliest date on which an application for payment was made in relation to the
allegedly non-conforming cladding in the atrium was 23 November 2012, when Clad (UK)
Ltd submitted an application for the Signi installed in the cores. Contrary to the position
adopted in its pleadings and its note of argument, MPX now accepts that there was a
concurrence of injuria and damnum by December 2012, when it first made payment for a
non-conforming material, and so, absent any argument available to MPX by virtue of
section 11(2) or 11(3) of the 1973 Act, the prescriptive clock began to tick in November or, at
the latest, December 2012. (Although there was more than one product installed in the
atrium, paid for on different dates, MPX do not contend for "salami slicing" of the claim, ie,
that different prescriptive periods should apply to different products). It follows that unless
5
MPX can invoke either section 11(2) or (3) to delay the commencement of prescription, or
section 6(4) to suspend it, MPX's claim had prescribed by December 2017.
Does section 11(2) apply?
[9]
The commencement of prescription may be postponed by section 11(2), which, as it
applies to this action, provides that where as a result of a continuing act, neglect or default,
loss, injury or damage has occurred before the cessation of that act, neglect or default, the
loss, injury or damage is deemed to have occurred on the date when the act, neglect or
default ceased.
[10]
MPX avers in Article 21 of condescendence that WSP's breaches of contract and
common law duty insofar as they occurred before January 2015 were continuing breaches in
terms of section 11(2) at least until the date of practical completion. It further contends that
those averments should be taken pro veritate and that it is entitled to be given the
opportunity to prove, at a future proof on the merits, that there were continuing breaches.
[11]
On that latter point, I disagree. The purpose and scope of the preliminary proof is to
determine whether MPX's claim against WSP has prescribed or not. To decide that, it is
necessary to determine when prescription began to run; and to determine that, the court
must deal with the section 11(2) argument.
[12]
As is submitted on behalf of WSP, there is a difference between a continuing duty, a
continuing breach and a completed breach with continuing effects: see Johnston v Scottish
Ministers 2006 SCLR 5, para [17]; John G Sibbald & Son Ltd v Douglas Johnston
Here, the breaches complained of are two-fold, namely, first, that WSP prepared a defective
FSDS, and, second, that it approved the use of defective products in the atrium. Even if the
6
contract was breached more than once in that latter regard (by approval of more than one
drawing providing for the defective products) on any view the breach or breaches were
completed by the time of the purchase and installation of the products. In general, in the
absence of express instructions to do so, the design responsibilities of an architect (and, by
parity of reasoning, of a fire consultant) do not include a continuing duty to review its
design or supervise the works, unless something occurs to make it necessary or prudent for
a reasonably competent architect to do so: Jackson & Powell (9th ed), paragraphs 9-025; New
Islington and Hackney Housing Association Ltd v Pollard Thomas & Edwards Ltd [2001] PNLR 20,
Dyson J at para [14]. Although MPX relies on paragraph 3.26 of the WSP Scope of Services,
which required WSP to undertake regular inspections of the Works and provide reports as
required by MPX, it does not aver that WSP was required to undertake an inspection of the
ACMs as they were being installed, far less aver that inspections undertaken after their
installation should have identified their presence. Nor does MPX aver that there were any
breaches by WSP in the post-installation period, or circumstances that might have given rise
to a duty on WSP to revisit what had been installed.
[13]
Consequently, MPX has neither averred, nor proved, that any breach by WSP was
one which continued beyond installation. I therefore conclude that section 11(2) did not
delay the commencement of the prescriptive period.
Does section 11(3) apply?
[14]
MPX submits that it is entitled to rely upon section 11(3) of the 1973 Act to postpone
the start of the prescriptive period until it received Mr McCracken's initial advice on
21 January 2021; it was only then that it became aware of the relevant loss, namely the
liability to GGHB. However, since MPX also now accepts that the relevant loss was incurred
7
by around December 2012, when it incurred wasted costs to JDP and Clad UK in relation to
cladding products which it is alleged did not meet the requirements of the Building
Contract, and since MPX was aware that it had incurred those costs, there is no basis,
standing the current state of the authorities (referred to in my opinion in CA80/2024) upon
which it can rely on section 11(3) to delay the commencement of the running of prescription.
[15]
Consequently, the prescriptive period commenced, at the latest, in December 2012,
meaning that MPX's claim against WSP will have prescribed unless it is entitled to rely on
section 6(4), to which I now turn.
Does section 6(4) apply?
[16]
Subject to what I say below about payment, MPX relies on three matters as having
engaged section 6(4): that WSP sought and obtained payment for its services; the collateral
warranty provided in favour of GGHB; and the statement of design compliance. In relation
to the first of these, payment for services, MPX advanced that submission only in the event
of the court rejecting its submission in the principal action that the provision of everyday
services, and claiming payment therefor, could not provide a basis for engaging section 6(4).
Since I have upheld that submission, the MPX submission need not be considered, but, for
completeness, the provision of services by WSP (including their assigning a status to a
drawing or drawings) and the claiming of payment for those services were, in the context of
the contract between MPX and WSP, routine occurrences which could not, viewed
objectively, have induced error such as to engage section 6(4). In any event, the evidence
was insufficient to establish that those services, or the claiming of payment, led to any error
on the part of anyone within MPX which induced it to refrain from making a claim. The
8
evidence from Mr Fernie and Mr Murray, relied upon by MPX, is merely to the general
effect that MPX would have relied upon the expertise of the design teams, including WSP.
The collateral warranty
[17]
MPX submits that in the collateral warranty, to which it was party, WSP represented
that it had complied and would continue to comply with its obligations, and that although
the warranties were primarily for GGHB's benefit, MPX took comfort that WSP would carry
out its work in a way that was compliant with the contractual requirements placed on it.
Under reference to Rowan Timber Supplies (Scotland) Ltd v Scottish Water Business Stream Ltd
[2011] CSIH 26, it is said that there is no reason in principle why a representation made in
advance of a service being provided cannot induce error on the part of the recipient of the
service.
[18]
WSP points out that the warranty was granted between January and March 2011 and,
as such, it pre-dates construction work on QEUH. It argues that an undertaking to exercise
reasonable care in the performance of one's duties given to a third party in advance of the
project commencing cannot amount to a representation that the works were in fact
completed with reasonable care, and a fortiori cannot amount to an inducement not to make
a claim.
[19]
Whether or not a representation made by the debtor before the obligation in question
came into existence might in some circumstances induce error on the part of the recipient of
the service, I do not consider that the collateral warranty relied upon here, viewed
objectively, could reasonably have induced an error in the mind of MPX that construction
works and design services carried out after the date of the warranty had in fact been
concluded to a particular standard, not least as the warranty was primarily for the benefit of
9
GGHB. It is hard to see how a somewhat tautologous contractual obligation to comply with
contractual obligations could induce the sort of error envisaged by section 6(4); were that the
case, then section 6(4) could apply in virtually every case. It would also be conceptually
somewhat curious if the prescriptive period could be suspended before it had even started
to run. It is true that Rowan, above, does on one view suggest that a representation made in
advance of an obligation arising might in some circumstances induce a section 6(4) error, in
that the Inner House found to be "unduly restrictive" an argument that conduct inducing
the creditor to refrain from making a claim must, logically, be conduct which post-dates the
coming into existence of the obligation. However, the facts in that case were unusual (and
far removed from those here) inasmuch as it was averred that there had been a series of
charges issued by Scottish Water for services which had not in fact been provided, which the
pursuers had paid, and the alleged obligation was one of repetition. The court's
observations were made in the context of holding that the pursuer's averments were suitable
for proof. Further, what the Lord President (Hamilton) actually said, at para [18] was:
"It will in the end be for the respondents to prove what in fact induced them to
refrain from making their several claims earlier than they did. But it would be
within the scope of their averments to seek to establish that the periodical and
repeated issuing of charges (carrying the implication that the sums charged were
due) induced them to refrain from pursuing a claim for repetition of a sum earlier
charged and paid. It may also be that, looking at each transaction distinctly, the
implicit representation contained in the notice was such that it not only induced
payment but also subsequently induced the error which in turn induced the
respondents to refrain from making a relevant claim in repetition."
That falls far short of holding, as a generality, that a single representation made before an
obligation has come into existence is capable of inducing an error under section 6(4).
[20]
In any event, the evidence in the present case did no more than establish that had the
warranty not been provided, that may have prompted further inquiries, but that is nothing
to the point. Further, no evidence was led which established that the warranty had in fact
10
induced an error either in MPX's corporate mind or on the part of any person acting as its
agent as to the conformity of the cladding in the atrium. It was signed on behalf of MPX by
Timothy Bicknell, who was not a witness; and Mr Ballingall, the managing director of MPX
at the material time, did not speak to it.
[21]
Accordingly, the provision of the collateral warranty did not engage section 6(4).
The statement of design compliance
[22]
MPX submits that while it was not aware of any issues as regards the cladding prior
to receipt of the statement of design compliance, the statement provided a sense of comfort
that WSP had designed in accordance with its obligations and that if it had failed to provide
a certificate, that would have prompted further investigation. The fact that WSP was
contractually obliged to provide it did not prevent it from having induced error. In context,
the certificate was plainly referring to WSP's full scope of design services. The provision of
such a certificate was not within the scope of "everyday" conduct addressed in Tilbury
Douglas Construction Ltd v Ove Arup and Partners Scotland Ltd 2024 SLT 811.
[23]
WSP submits that since the document was one which WSP was obliged to provide,
and it was produced as part of the contractual machinery, then it fell into the same category
as an application for payment. Furthermore, it was no more than an expression of
confidence in the WSP prepared design, which was insufficient to suspend the prescriptive
clock. There was no evidence that the document induced in MPX's corporate mind a
specific error as to the scope of its remedies, nor that it induced a specific error that the
installed ACMs were compliant with the FSDS.
[24]
Again, I prefer WSP's submissions. The statement of compliance was something
which WSP had to provide in order to receive payment. As such, it was, in the context of this
11
contract, both an everyday occurrence and a mere statement of confidence in WSP's design.
As with the collateral warranty, it is nothing to the point that had it not been provided,
questions would have been asked. It was plain from the evidence that the provision of the
statement of compliance was essentially no more than a tick-box exercise.
[25]
In any event, as with the warranty, none of the witnesses spoke to having been
induced into error as to the composition of the atrium cladding materials. Mr Fernie, for
example, said that he understood the statements of design compliance as the consultants
confirming their designs were in compliance with the contractual requirements, but that
falls far short of his being induced into error, at the time, as a result of the statement.
Similarly, Mr Wales said that MPX "took comfort" from the statements, which showed that
the consultants and subcontractors had taken due diligence in carrying out their works, but
such generic comfort again is insufficient to establish corporate error on the part of MPX in
relation to the atrium cladding. This evidence illustrates the "scattergun" approach MPX
took towards the statements. In other words, MPX took comfort from the statements as a
whole, rather than place reliance on any particular statement. The evidence merely
underlines that no real thought was given by anyone as to which particular consultant (if
any of them) had the contractual responsibility to approve the materials, which undermines
the argument that either the WSP (or for that matter the NA) statement induced an error in
the mind of MPX which induced it to refrain from making a claim.
[26]
Accordingly, the provision of the collateral warranty did not engage section 6(4).
[27]
For all of these reasons, WSP did not induce an error in the mind of MPX such as to
induce it to refrain from raising proceedings against WSP, and MPX is unable to rely on
section 6(4) so as to suspend the running of prescription.
12
[28]
It should be noted that I have reached my view in relation both to the collateral
warranty and the statement of design compliance without finding it necessary to make any
finding as to the scope of WSP's contractual and delictual obligations. I would have reached
the same view regardless of whether WSP owed MPX any duty in relation to the approval of
documents on Aconex, or not.
Reasonable diligence
[29]
For completeness, I will consider the position in relation to the reasonable diligence
proviso to section 6(4). On the assumption that WSP did induce error in the mind of MPX
which induced it to refrain from court action, when could MPX, with reasonable diligence,
have discovered that error? That must be assessed by asking what the prudent person
carrying on business of the type operated by MPX would do (Glasgow City Council v VFS
Financial Services Ltd [2022] SC 133, Lord President (Carloway) at [57]). (Note that in this
action, WSP did not advance the argument advanced by JDP in the downstream action
against it, that MPX had actual knowledge by 2 August 2018, doubtless because of its
confidence in the strength of its position that the error should have been discovered before
that date. I will therefore not address the issue of actual knowledge in this opinion.)
[30]
While there are arguments available to WSP on the evidence that MPX could with
reasonable diligence have discovered its error at an earlier date for example, at completion,
when it was under an obligation to deliver an accurate O&M Manual to GGHB the lines of
battle drawn between the parties to this action focus the dispute on whether MPX could
with reasonable diligence have discovered that non-compliant cladding had been installed
as part of the post-Grenfell investigations in 2017, failing which as part of MPX's atrium
investigations from March 2018. MPX submits that there was no failure by MPX to use
13
reasonable diligence during those periods of time and that, at GGHB's request, the
2017 review dealt only with the external cladding. Further, if MPX failed to use reasonable
diligence in not considering the atrium in the immediate aftermath of Grenfell, it should
follow that GGHB also failed to use reasonable diligence at that time. MPX could not have
ascertained the position sooner than it did, in 2021.
[31]
Dealing with the submission about the extent of the 2017 review first, whether
GGHB exercised reasonable diligence at that time is fundamentally irrelevant to the question
whether, in a question with WSP, MPX did so. Further, this is only a live question if it is
assumed, not only that MPX was induced into error by WSP, but that GGHB was induced
into error by MPX and that its claim has not prescribed, which involves also assuming that it
did not fail to use reasonable diligence. This submission therefore takes MPX nowhere. The
fact is that both MPX and GGHB were or ought to have been aware in 2017 that the atrium
was to be treated as an external space. That GGHB requested that the review deal only with
the external cladding therefore does not avail MPX in a question with WSP.
[32]
WSP argues that information about the ACMs which had been installed in the atrium
ought to have been readily identifiable on Zutec, ie from the O&M Manual, in which event
MPX could with reasonable diligence have discovered the fire classification of the ACMs
almost immediately after Grenfell, proposing a date of 1 August 2017. Alternatively, it
argues that any error must have ceased to have effect by, at the latest, the point at which
MPX's investigations had confirmed that the cladding included Alucobond PE, Etalbond PE
and Larson Signi PE and had the information necessary to understand the characteristics of
those products. That was on 23 March 2018, when Fergus Shaw was emailed that
information and reported it to Julie Mayer. It was also around that time that MPX informed
its insurers.
14
[33]
Insofar as MPX's position is that it did not know and could not have known of the
true position until 2021, that may be the date by which it had the facts necessary to establish
a prima facie case, but it is not the date on which it had information such that it could no
longer be said to be operating under induced error. It is the latter date which triggers the
resumption of the running of the prescriptive period: Glasgow City Council, paras [52]
and [53].
[34]
I consider that WSP's contention with regard to the O&M manual is well made, and
that with reasonable diligence MPX could have discovered its error by 1 August 2017. Even
if that is wrong (and JDP adopted a slightly more cautious argument, also building in time
for MPX to take expert opinion) the error could have been discovered by the end of 2017,
and even if that is wrong, 23 March 2018 would, on any view of the evidence, be the last
date by which MPX could, with reasonable diligence, have discovered any error under
which it was operating due to any representation by WSP.
[35]
Whether any or all of those dates would have been sufficient to prevent the claim
from prescribing turns on when any error was found to have been induced. If error was
induced by the provision of the collateral warranty (which pre-dated the concurrence of
iniuria and damnum), prescription would not begin to run until 1 August 2017 at the earliest,
or 23 March 2018 at the latest, and the action would have been raised within the prescriptive
period whichever date is taken. If, on the other hand, the error was induced only by the
statement of design compliance provided in January 2015, by that time prescription had
already been running for 2 years and 1 month, with the consequence that MPX had 2 years
and 11 months within which to serve a court action, that is, by July 2020 at the earliest or
February 2021 at the latest. On that hypothesis, too, it matters not which date is taken as the
15
recommencement of prescription, since in all cases, the claim would already have prescribed
when the action was eventually served in December 2021.
The indemnity claim
[36]
Leaving aside for the moment the question of whether the indemnity is engaged at
all (WSP argue that it is not, because it is not said to have infringed the rights of "Others"),
WSP submits that the indemnity is an indemnity against liability and that since any claim by
GGHB against Multiplex accrued (as I have found) at practical completion in January 2015,
the prescriptive period in respect of any claim under the indemnity against WSP also ran
from that date and has now prescribed. MPX submits in reply that WSP's obligations to
indemnify MPX did not arise until, at the earliest, MPX was subject to claims or proceedings
from which it might require an indemnity; alternatively, that they will only be triggered if
and when MPX is found liable to pay compensation or costs to GGHB; and that, either way,
WSP's obligations to indemnify MPX have not prescribed.
[37]
Parties are agreed that the point at which an indemnity becomes enforceable is a
matter of contractual interpretation: Scott Lithgow Ltd v The Secretary of State for Defence
1989 SC (HL) 9. Keating on NEC Contracts (Second Ed) at 20-03 leaves open the question of
whether the Clause 80 indemnity is one against liability, or a general indemnity.
[38]
There is a discussion of the conflicting case law and the difference between a liability
indemnity and a so-called general indemnity in The Mayor and Commonalty and Citizens of the
(25 February, 2000). In that case His Honour Judge Hicks QC had regard to the width of the
words used in the clause under consideration, in coming to the view that the clause
provided a general indemnity. So, too, here, it seems to me that the reference to
16
"proceedings", "costs" and "compensation" payable is suggestive of the indemnity
becoming enforceable only at the point when liability has been established, rather than at an
earlier date. It is significant that the clause refers to "proceedings" rather than to
"liabilities", which is, at the very least, a pointer that the indemnity does not bite before
proceedings are raised which is sufficient for MPX for present purposes. Further, it would
be odd if the parties' intention had been that one of them had to pursue a claim under the
indemnity clause for costs incurred in defending an action before an action had even been
raised, or before the extent of it was known. For that reason, I do not consider that a claim
under the indemnity has prescribed.
[39]
As regards whether the indemnity is engaged at all, it seems to me that WSP's
submission that it is not, which is supported by the passage in Keating referred to above, is
correct. However, that is a question for another day, since the relevance of the averments
about Clause 80 is not a matter in issue in the preliminary proof on prescription.
Disposal
[40]
Although WSP seeks decree of absolvitor (quoad the atrium cladding only) in respect
that MPX is to be assoilzied from the GGHB action, it is not clear to me that that is
necessarily appropriate standing MPX's construction of the indemnity, which it maintains
entitles it to recover expenses from WSP, notwithstanding that WSP was successful in the
GGHB action. While it is undoubtedly entitled to have its third plea-in-law sustained quoad
the atrium cladding, it is less clear to me that it is entitled to have its fourth plea sustained at
this stage. I will therefore put the case out by order to discuss the precise terms of the order
to be issued in light of my opinions in this, and the principal action, and to discuss further
procedure in this action. In the meantime, those advising MPX may wish to reflect whether
17
there might not be considerable force in the argument that the indemnity is simply not
engaged, since if that argument were accepted as (or found to be) correct, absolvitor would
indeed fall to be granted