Construction – building safety and cross-border claims issues

The Scottish and English construction law landscapes share many similarities, but they are not identical and it is important to be aware of the differences.

The building safety regime

Scotland and England have long had separate building regulations – both intended to ensure safety, but each has their own unique provisions. It is crucial for parties involved in projects on either side of the border to ensure that they are aware of the different requirements.

The Building Safety Act 2022 has brought in some significant changes which apply to both jurisdictions – namely the creation of new rights to claim against those who have an involvement with “construction products”, and extended time limits for bringing such claims. However, the vast majority of the Act’s provisions do not apply in Scotland. The Scottish Government is in the process of bringing in its own separate regime for assessment and remediation of dangerous cladding.

Delay claims

One area where the Scottish courts have gone their own way is in delay claims involving “concurrent delay” – i.e. where a delay to completion of the project has been caused by both (1) something for which the contractor is responsible, and (2) something for which the employer is responsible. The English courts allow the contractor a full extension of time for completion of the works, notwithstanding the delay was in part due to something for which the contractor itself was responsible. The Scottish courts’ approach, in the absence of a “dominant” cause, is to apportion the delay between the competing causes. So whereas in England the contractor may be entitled to an extension of time to account for the full period of delay, in Scotland the contractor may only be entitled to a shorter extension of time based on apportionment.

Time bar

It is important for those contemplating construction claims to be aware that the Scottish time bar regime (“prescription”) is very different from what parties are used to in England and Wales. The headline difference is that Scottish claims are time barred by prescription after 5 years, compared with 6-year limitation in England and Wales. However, this area of Scots law is also fraught with complexity. For example, the date on which the 5-year clock started ticking depends on the specific circumstances and is often hotly contested. Time bar in construction defects claims has proven to be particularly contentious. It is important for those contemplating claims to seek advice at an early stage, to ensure their right to claim is not lost as a result of time bar.

We are here to help

If you have any queries relating to the legal landscape for construction and engineering in Scotland, please contact us here or email michael.collins@andersonstrathern.co.uk.