SCOTLAND's largest health board has won a fight to stop a £73m damages claim from being kicked out over design flaws and defects that compromised safe healthcare at the £800m superhospital complex.

NHS Greater Glasgow and Clyde (NHSGGC), which was placed under special measures last year by the Scottish Government, was accused of sidestepping a contractual obligation to carry out an independent dispute resolution over the row by pursuing the matter in court and moves were made to have the claim dismissed.

The move had been a blow for the health board which wants the contractors rather than taxpayers to foot the £70m plus repair bill.

But it has emerged that Lord Tyre has decided that the case should not be dismissed but paused to await the outcome of a separate adjudication in the dispute.

Scots legal precedent had been used to argue that the health board claim resulting from problems within the Queen Elizabeth University Hospital and the linked Royal Hospital for Children was a breach of contract and therefor invalid.

The health board set out where its requirements were "not met in either design, commissioning or building stages" in 11 specific areas since the contract to build was signed in December, 2009.

These include the water system, ventilation, toughened glazing, doors and an atrium roof.

Those fighting the action claimed the health board began court action urgently on January 2020 indicating it had not acted swiftly enough to comply with the terms of the contract.

The health board was suing the contractors Multiplex Construction Europe Limited, performance guarantors BPY Holdings, project supervisors Capita Property and Infrastructure Ltd and lead consultants Currie and Brown UK for losses and damages incurred through the technical issues including water contamination.

But Multiplex and BPY Holdings have said that the first time it knew that there was going to be court proceedings was through media coverage at the end of December, 2019.

And those contesting the claim over multiple problems since the QEUH complex opened in 2015 say the health board was contractually barred from making the claim.

Gavin MacColl QC for Multiplex and BPY Holdings said that was because the health board failed to meet its contractual obligations in trying to resolve the dispute by going to an independent adjudicator first.

Those fighting the health board's action referenced a previous case dismissed by Lady Wolffe in January when Fraserburgh Harbour Commissioners sought £7m over a defects in a project to deepen part of the harbour.

A 2015 public information film about the hospital and how to use it.

Commissioners chose not to refer the dispute with contractors McLaughlin and Harvey to adjudication but instead instigated court proceedings in October 2020.

In January, judge Lady Wolffe found in favour of the contractors and dismissed the action. She held that independent adjudication was a mandatory first step that must be taken before bringing any further proceedings in the courts.

The court heard action for damages was a means of preventing the claim being time-barred due to length of time it had taken to investigate the extent of the claim.

At the centre of that dispute and the health board action is a clause in the NEC Engineering and Construction Contract (ECC), relating to the dispute resolution procedure that applies under the UK Housing Grants, Construction and Regeneration Act 1996.

The clause states: "A party does not refer any dispute under or in connection with this contract to the tribunal [a court] unless it has first been decided by the adjudicator in accordance with this contract.

"If, after the adjudicator makes a decision, a party is dissatisfied, that party may notify the other party of the matter which is disputed and state that it intends to refer the disputed matter to the tribunal. The dispute may not be referred to the tribunal [court] unless this notification is given within four weeks of being informed of the adjudicator’s decision."

But Lord Tyre said that the NHSGGC case was "not incompetent". But he said that because there was a contractual requirement to refer the dispute to an adjudicator, "it cannot be entertained by the court until the adjudication process has concluded".

He said: "The effect on the jurisdiction of the court of an agreement to submit to arbitration is long established: jurisdiction is not wholly ousted although the court is for the time being deprived of jurisdiction to inquire into and decide the merits ofthe case. Should the arbitration prove abortive, the full jurisdiction of the court revives."

He added: "In my opinion the appropriate course is to sist [pause] the action to await the outcome of the adjudication(s). I agree that that is the usual course and I see no reason to depart from it.

The health board has faced criticism over its infection control procedures after the deaths of two children at the city's largest hospital complex four years ago.

The Herald:

Former health secretary Jeane Freeman was facing calls to put the health board into special measures following the of the two children. Both were treated in a ward in the hospital which was later closed because of problems with the water supply.

It is understood that first issues with the building were found between June, 2015 and November, 2015, involving a pneumatic tube system, doors, and ventilation in two wards.

An alleged link between infections and the hospital water supply was under investigation by April, 2018 and it is understood by the end of the year £1.5m was allocated to deal with the issue.

The repair bill included £26.5m for the water system, £10.9m on doors, £7m on the heating system, £6.9m on ventilation in two wards, £6.7m on an internal fabric moisture ingress, £5.7m on toughened glazing and £5.4m on standard isolation rooms ventilation and £1.3m on a roof.