Ogilvie Construction Limited against M1 Re Glasgow Limited and Ogilvie Construction Ltd against Leach Rhodes Walker Ltd
| Jurisdiction | Scotland |
| Court | Court of Session |
| Judge | Lord Lake |
| Judgment Date | 05 May 2026 |
| Neutral Citation | [2026] CSOH 43 |
| Date | 05 May 2026 |
| Published date | 05 May 2026 |
| Docket Number | OUTER HOUSE, COURT OF SESSION |
PLEASE NOTE: THIS OPINION SUPERSEDES THE OPINION
ISSUED ON 1 MAY 2026
[2026] CSOH 43
OUTER HOUSE, COURT OF SESSION
[2026] CSOH 44
CA139/24
CA71/22
OPINION OF LORD LAKE
In the causes
OGILVIE CONSTRUCTION LIMITED
Pursuer
against
M1 RE GLASGOW LIMITED
Defender
and
OGILVIE CONSTRUCTION LTD
Pursuer
against
LEACH RHODES WALKER LTD
Defender
Pursuer: Wolffe KC et Reekie, (sol-adv); Brodies LLP
Defender: MacColl KC for M1; DLA Piper Scotland LLP
Defender: McKenzie KC et McKinlay for Leach Rhodes Walker ; CMS Cameron McKenna LLP,
Nabarro LLP and Olswang LLP
2
5 May 2026
Introduction
[1] These cases both arise out of works to construct a hotel at Oswald Street, Glasgow
which is operated under the Motel One brand. Ogilvie Construction Limited, the pursuer
in both actions, were appointed to be the design and build contractors. The defender in
the first action, Leach Rhodes Walker, were appointed by Ogilvie as architect for the project.
M1 RE Glasgow Limited, were the owner and operator of the hotel who had appointed
Ogilvie and are the defender in the second action. I refer to these actions as the LRW action
and the M1 action respectively. I refer to the parties by their names rather than their
designation to avoid confusion. I heard a preliminary proof before answer in each action
concerning issues of whether obligations relied on by Ogilvie and M1 have been
extinguished by the operation of prescription in terms of the Prescription and Limitation
(Scotland) Act 1973 as amended by the Prescription (Scotland) Act 2018.
[2] Before identifying the issues that arise, it is necessary to set out the background to
the actions and the remedies sought in a little more detail. The hotel is a 15-storey building
which is averred to be a little over 38 metres tall. The construction used cladding which
included a layer of insulation. The design prepared by LRW at the stage that construction
commenced specified a 70mm layer of Kingspan Kooltherm K15 insulation (“the 70mm
Design”). In 2017, while the hotel was under construction, the Grenfell Tower fire with its
appalling loss of life occurred. A review of the cladding design at the hotel was carried out
following that and this led to a re-design in which the decision was to add a further 30mm
of K15 to the 70mm Design. This is referred to as the 70+30mm Remedial Design.
[3] In 2020, Ogilvie raised the LRW action in which they sought to recover damages in
respect of the costs of carrying out works to the hotel to implement the 70+30mm Remedial
3
Design as opposed to the 70mm Design. This alleged that the 70mm Design was defective
and that LRW had been in breach of their duties in producing it. After sundry procedure, a
proof before answer was fixed to commence on 11 July 2023. On 23 May 2023, solicitors for
LRW sent a letter to solicitors for Ogilvie expressing the view that the 70+30mm Remedial
Design was also defective. The proof was discharged and the case was sisted to allow
investigations. After those investigations, Ogilvie prepared and lodged a minute of
amendment. This added a case against LRW that the 70+30mm Remedial Design did not
comply with the building regulations and that they were in breach of their obligations in
specifying it. In addition, further averments were added alleging that the design of the
cavity barriers - another element relevant to fire safety - was also deficient. In relation to
loss, the minute of amendment introduced averments that as a result of the defects, Ogilvie
were liable to M1 under the design and build agreement between them. In their answers to
the minute of amendment, LRW claimed that any obligations that they owed to Ogilvie in
respect of the elements added by the minute (ie in respect of the 70+30mm Remedial Design
and the Cavity Barrier Design) had prescribed. They also averred that any obligations that
Ogilvie had owed to M1 in regard to both the 70+30mm Remedial Design and the Cavity
Barrier Design had prescribed. As the amendment procedure drew to a close, Ogilvie raised
the M1 action. In that action, Ogilvie seek declarators that the obligations on them to make
reparation to M1 in respect of the 70mm Remedial Design, the 70+30mm Remedial Design
and the Cavity Barrier Design have prescribed. M1 dispute this.
[4] All parties led evidence. There were joint minutes in respect of certain agreed facts
and it was agreed that all the evidence before the court would be evidence in both actions.
Ogilvie led evidence of fact from Robert Innes, formerly commercial manager employed by
them, Ronald MacDonald, their managing director, and Neil Robertson, a senior quantity
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