TILBURY DOUGLAS CONSTRUCTION LTD AGAINST OVE ARUP & PARNTERS SCOTLAND LTD [2023] ScotCS CSOH_53 (16 August 2023)

TILBURY DOUGLAS CONSTRUCTION LTD AGAINST OVE ARUP & PARNTERS SCOTLAND LTD [2023] ScotCS CSOH_53 (16 August 2023)

The court held that the pursuer's claim, as framed, related to the need for extensive redesign of the enabling works and consequential costs, which only became apparent in November 2014. Earlier costs for additional brick repairs and coring were not actionable loss arising from the pleaded breaches but were within the contractual risk. The prescriptive period did not begin until the pursuer was, or ought to have been, aware of the loss caused by the alleged breaches, which was not before November 2014. The claim was therefore not prescribed.

Citation
[2023] ScotCS CSOH_53
Parties
Pursuer: Tilbury Douglas Construction Limited; Defender: Ove Arup & Partners Scotland Limited
Jurisdiction
Scotland
Judgment Date
16 August 2023
Procedural Posture
Commercial Action (outer House, Court of Session) / Preliminary Proof Before Answer on Prescription
Outcome
Defender's plea on prescription repelled; proof before answer allowed on remaining averments.
Legal Topics
Professional Negligence, Prescription and Limitation of Actions, Engineering Design Liability, Loss and Damage in Construction Contracts
Construction Law Contract Law Delict (tort) Limitation and Prescription Professional Negligence Prescription and Limitation of Actions Engineering Design Liability Loss and Damage in Construction Contracts

Case Brief

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Parties

Tilbury Douglas Construction Limited

Pursuer

Ove Arup & Partners Scotland Limited

Defender

Procedural Posture

Commercial Action (outer House, Court of Session) / Preliminary Proof Before Answer on Prescription

Legal Issues

  1. 1 Whether the pursuer's claim is prescribed under the Prescription and Limitation (Scotland) Act 1973
  2. 2 When the prescriptive period began to run for the pursuer's claim
  3. 3 Whether the pursuer had actual or constructive awareness of loss more than five years before raising the action

Ratio Decidendi

The court held that the pursuer's claim, as framed, related to the need for extensive redesign of the enabling works and consequential costs, which only became apparent in November 2014. Earlier costs for additional brick repairs and coring were not actionable loss arising from the pleaded breaches but were within the contractual risk. The prescriptive period did not begin until the pursuer was, or ought to have been, aware of the loss caused by the alleged breaches, which was not before November 2014. The claim was therefore not prescribed.

Court Disposition

Defender's plea on prescription repelled; proof before answer allowed on remaining averments.

Orders

  • Repel defender's third plea in law (prescription)
  • Allow proof before answer on remaining averments