Prescription and design defects

Tilbury Douglas Construction Ltd v Ove Arup & Partners Scotland Ltd [2024] CSIH 15

In Tilbury Douglas Construction Ltd v Ove Arup & Partners Scotland Ltd [2024] CSIH 15, the Inner House of the Court of Session held that the defenders were entitled to rely on a defence of prescription (ie limitation) in order to defeat the claim brought against them by the pursuers. The claim brought by the pursuers was held to be a claim for a global loss based on the costs and delays resulting from the alleged defective design and did not consist of a multiplicity of defaults causing separate and distinct defects. The clock on that claim began to tick more than five years before the claim was brought because the loss and damage were sustained when the pursuers entered into a fixed-price contract under which they had assumed responsibility for the cost of any redesign of the project. Nor could the pursuers rely on induced error to postpone the running of the prescriptive period because it was held to be unable to point on the evidence to an error which had been induced by the defenders which had caused it not to make a claim.