RECLAIMING MOTION BY TILBURY DOUGLAS CONSTRUCTION LTD AGAINST OVE ARUP & PARTNERS SCOTLAND LTD [2024] ScotCS CSIH_15 (12 June 2024)

RECLAIMING MOTION BY TILBURY DOUGLAS CONSTRUCTION LTD AGAINST OVE ARUP & PARTNERS SCOTLAND LTD [2024] ScotCS CSIH_15 (12 June 2024)

The prescriptive period commenced when Tilbury entered the fixed price contract in November 2013, as loss was sustained at that point due to reliance on Arup's defective design. Section 11(3) does not postpone prescription since Tilbury was aware of the loss, and section 6(4) does not apply because Tilbury failed to prove an induced error attributable to the company that caused them to refrain from making a claim. The claim is a single, indivisible obligation and has prescribed.

Citation
[2024] ScotCS CSIH_15
Parties
Pursuer and Respondent: Tilbury Douglas Construction Limited; Defender and Reclaimer: Ove Arup & Partners Scotland Limited
Jurisdiction
Scotland
Judgment Date
12 June 2024
Procedural Posture
Reclaiming Motion (appeal) in Commercial Action / Appeal Against Preliminary Proof Decision on Prescription
Outcome
Reclaiming motion allowed; commercial judge's interlocutor recalled; Arup's plea of prescription sustained; decree of absolvitor granted.
Legal Topics
Prescription of Claims, Induced Error, Duty of Care in Design, Contractual Breach, Limitation Periods
Contract Law Tort Law Construction Law Prescription and Limitation Prescription of Claims Induced Error Duty of Care in Design Contractual Breach +1 more

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Parties

Tilbury Douglas Construction Limited

Pursuer and Respondent

Ove Arup & Partners Scotland Limited

Defender and Reclaimer

Procedural Posture

Reclaiming Motion (appeal) in Commercial Action / Appeal Against Preliminary Proof Decision on Prescription

Legal Issues

  1. 1 When does the prescriptive period commence for a claim based on defective design?
  2. 2 Does induced error under section 6(4) of the Prescription and Limitation (Scotland) Act 1973 suspend prescription?
  3. 3 Are multiple breaches in design separate causes of action for prescription purposes?

Ratio Decidendi

The prescriptive period commenced when Tilbury entered the fixed price contract in November 2013, as loss was sustained at that point due to reliance on Arup's defective design. Section 11(3) does not postpone prescription since Tilbury was aware of the loss, and section 6(4) does not apply because Tilbury failed to prove an induced error attributable to the company that caused them to refrain from making a claim. The claim is a single, indivisible obligation and has prescribed.

Court Disposition

Reclaiming motion allowed; commercial judge's interlocutor recalled; Arup's plea of prescription sustained; decree of absolvitor granted.

Orders

  • Recall of commercial judge's interlocutor
  • Sustain Arup's plea of prescription