A panel of three judges in the Inner House of the Court of Session, chaired by Lord Pentland, upheld an earlier decision that the health board’s action over defective cladding at the £842 million hospital was time‑barred under the Prescription and Limitation (Scotland) Act 1973.

The ruling brings to an end NHSGGC’s bid to recover between £16m and £33m for remedial works to the 13‑storey atrium and upper‑floor cladding.

The court found that NHSGGC had five years from practical completion in January 2015 to raise proceedings. However, the board claims it did not become aware of the cladding defects until 2021, after Multiplex urged it to review the atrium materials.

A fresh action was raised in March 2022, well outside the statutory period.

Neither of the two legal “saving provisions”, induced error (s6(4)) or lack of discoverability despite reasonable diligence (s11(3)), applied.

One judge noted that had the board exercised “reasonable diligence”, it could have “discovered the error almost immediately after completion in November 2015”.

The court repeatedly highlighted a “stumbling block”, namely NHSGGC’s failure to comply with its own fire‑safety assurance requirements, including guidance set out in CEL 11. A thorough check of the operations and maintenance manual during a 2015 fire‑risk assessment would have revealed that the cladding did not meet the required Euroclass B standard.

Background to the dispute

Multiplex built the QEUH under a 2009 design‑and‑build contract. Practical completion was certified in January 2015.

NHSGGC raised a £73m claim in 2020 over other alleged defects, but the atrium cladding issues were not included because the board said it was unaware of them.

The cladding concerns surfaced only after Multiplex’s 2021 letter “strongly urging” the board to carry out an immediate review.

The board argued that the defects had been “hidden”, but the court ruled this was irrelevant unless NHSGGC had first exercised reasonable diligence.

The Inner House also noted that NHSGGC had led no evidence from board members about their state of knowledge, which was “fatal” to its argument that Multiplex had induced an error under s6(4).

NHSGGC said it was “disappointed” and is considering its next steps with legal advisers. It continues to pursue other claims against Multiplex and its parent company BPY Holdings LP. 

They added: “We are disappointed with the outcome of these proceedings, and we are currently considering our next steps in collaboration with our legal teams.

“Good progress is being made to install new wall linings in the atrium of the Queen Elizabeth University Hospital (QEUH), and it is anticipated that work will be completed this year. We would like once again to thank our patients, staff and visitors for their flexibility and understanding during this project.”

The Scottish Government said it was “in close contact with NHSGGC in relation to ward 4B” and received “regular updates to maintain an accurate picture of any ongoing developments”.