The discovery of a fire-safety defect can leave a difficult question: who, if anyone, is liable?

For developers, consultants, contractors, subcontractors and suppliers, the answer may depend on what was known when the building was designed and constructed, the applicable building standards at the time of construction, what caused the defect and, crucially, whether there is still time to bring a claim.

Potential liability

At the time of the original construction of the building, the contractor would likely have been under an obligation to ensure that materials were satisfactory, that ‘reasonable skill and care’ was used when selecting them, and that the works were constructed in a good and workmanlike manner.

If a claim was brought against a contractor for using materials (such as combustible cladding) now deemed unsafe, the issue would be whether that choice would have been deemed ‘wrong’ or ‘negligent’ at the time. The law would not look at these issues with hindsight.

A pursuer (claimant) would need to prove a breach of duty/contract, which caused them to suffer a loss and that the loss was foreseeable in the event that there was a breach.

Issues to be addressed will include whether the alleged wrongdoer was actually at fault for specifying or using the particular cladding/construction product or for the underlying fire-safety defect. This will require consideration of the state of industry knowledge at the time of the project, and the fact that for several decades the cladding/construction product, which is now deemed unsafe, was being widely specified for use.

Causation will also need to be considered. Key questions will be whether the issues arise from the original specification or construction, from any works carried out since the original construction, or a failure of maintenance obligations.

Prescription and contractual limitation periods

The period of time since the project was designed and constructed is also likely to have a significant impact on any analysis.

In Scots Law, the right to bring claims based on breach of contract or breach of duty may be lost where an action is not raised within a specific period of time. Whilst there are some exceptions, this period is generally considered to be 5 years from the date of loss, not six years as in England & Wales.

Yet there is some uncertainty about when the five-year period begins.

It could be as early as when the design work was carried out. Therefore, parties (such as developers) wishing to bring claims against contractors or designers should keep a close eye on timelines. By contrast, a party facing a claim will want to gather evidence to show the prescription period started earlier.

Even where a claim is thought to have prescribed, changes in legislation can affect the legal position. A good example is how the Building Safety Act 2022 (“the 2022 Act”) changed the landscape for certain fire-safety related claims after the Grenfell disaster.

The 2022 Act provides that an action relating to a construction product may not be brought after the expiry of 15 years from the date the relevant works were completed. In relation to an action relating to a cladding product, it may not be brought after 30 years from the date on which the right of action accrued (if the right of action accrued before the commencement date) or 15 years (if the right of action accrued on or after the commencement date).

Therefore, parties looking to bring claims against manufacturers of construction or cladding products will have longer to do so.

Importantly, the 2022 Act provides that an obligation to pay damages arising from the liability summarised above is now one of the exemptions from the normal five-year prescription period. It should however be noted that the exemptions introduced by the 2022 Act do not extend the prescription period for claims relating to poor workmanship.

In addition to prescription, there may also be contractual time bars. For example, it is quite common to see in a construction contract or professional appointment that parties agree that no claims can be brought after 12 years from practical completion. There is also a similar time period during which parties are obliged to maintain professional indemnity insurance.

Fire-safety related claims can be complex to pursue, and many may already be prescribed. The changes introduced by the 2022 Act extend the time periods for specific types of claims, but do not open the door to every fire-safety related claim.

Taking legal advice on your particular project and circumstances as soon as possible is key.

MFMac’s Neil Kelly will be joined by Garry Borland KC of Axiom Advocates to discuss some of these issues at the Scottish Construction Summit on 22 October 2026. Join us then to hear more on this important topic.

MFMac’s Construction team provides legal advice throughout the lifecycle of a project, from inception to completion to post-completion disputes. This includes fire safety defects mitigation and remediation projects in Scotland. In acting for our clients, we have been at the forefront of addressing fire safety defects in Scotland.