Insurers often ask about the likely impact of Building Information Modelling (BIM) on the risk environment in the construction industry but there has been no reported case law about it, until now.
The use of other parties’ design information is a vital element of any construction project. However, the BIM environment can potentially enable a party to restrict access to data, potentially to the detriment of the project. Trant Engineering v Mott MacDonald provides useful insight into the precautions businesses should take when it comes to sharing data.
Trant was engaged by the Ministry of Defence as contractor for a £55 million project to construct a power station in the Falkland Islands. Mott MacDonald was appointed to provide design services, including acting as the BIM coordinator. Mott’s appointment was never signed but it provided that upon full payment of any fees due under the agreement, it would grant an irrevocable royalty-free non-exclusive license for Trant to use all their intellectual property rights, including the design data, in the project.
A fee dispute arose. As a consequence of Trant’s failure to pay two of Mott’s invoices totaling £2.1 million, Mott suspended all work on the project and revoked access to the servers hosting all of the design data. Pending resolution of the ongoing fee dispute, Trant applied for an injunction requiring Mott to provide access to the design data.
O’Farrell J applied the three stage test set out in American Cyanamid Co (No 1) v Ethicon Ltd v Ethicon, namely:
- Is there a serious issue to be tried?
- If there is, are damages an adequate remedy?
- Whether the balance of convenience lies in granting or refusing the injunction.
The judge was satisfied that there was a significant dispute about the services Mott was required to provide, including whether the parties had even entered into a concluded contract, such that the application passed the first limb of the test.
For the second limb, the judge determined that losses would not simply be pecuniary given that this was part of a wider project to benefit the Falkland Islands. The presence of a liability cap of £1 million in Mott’s appointment document also indicated that damages would not be adequate where the value of the overall project and the likely losses (assuming liability was established) would far exceed that cap. Damages therefore might not be an adequate remedy.
For the third limb, the Judge said the test was to assess which course of action is likely to carry the risk of least injustice. Access to the data was vital to progress the project and the judge was satisfied that Trant was entitled to the design data contained in the public folders on the basis that they had previously been granted access and had made some payment for it (and indeed Trant offered to pay additional monies into court pending resolution of the dispute).
The judge therefore granted a mandatory interim injunction requiring Mott to allow Trant to access the design data.
This case emphasises the importance of the role of the BIM coordinator and how common data is hosted and controlled. Determining the scope of that role at the outside is crucial. Employers and main contractors may take the view that allowing a member of the design team to host gives away too much control and creates the access risk highlighted by this case. Equally that hosting role requires technical infrastructure and knowledge which might only be available by way of the consultants’ expertise.
Although this case focuses on modern technological considerations, it also highlights age old risk management issues. Despite the size of the project involving two heavyweight names in the construction industry, work had been commenced without a contract being concluded or signed. While lawyers can create arguments about how the use of and payment for certain services creates implied rights, having a signed contract defining the parties’ rights and obligations is the best way to protect against such issues arising in the first place.