BIM before the English Courts

White & Case LLP

In a judgment released in August 2017, the UK High Court granted an interim injunction requiring a Building Information Modelling ("BIM") coordinator to provide access to a common data environment.

BIM is increasingly popular on construction projects as a process to improve efficiency, management, and design integration. A key element of BIM systems is that various disciplines can manage and access a single digital data room known as a common data environment. The English Technology and Construction Court's ("TCC") recent judgment in Trant Engineering Limited v Mott MacDonald Ltd [2017] EWHC 2061 (TCC) highlights some of the key issues for parties to consider on BIM enabled projects.

Key facts

The key facts of the case were as follows:

  • Trant Engineering Limited ("Trant") was employed by the Ministry of Defence as the main contractor on the Mid Atlantic Power Project in the Falkland Islands. Mott MacDonald Ltd ("MML") was engaged by Trant to provide design services and to act as the BIM coordinator, controlling access to the common data environment.
  • A payment dispute arose and the parties disagreed over whether a contract existed between them at all. MML suspended its services and revoked Trant's access codes to the common data environment. Trant terminated the alleged contract and, pending resolution of the substantive dispute, sought an interim injunction from the TCC requiring MML to provide Trant, and others involved in the project, with access to the design data and design materials that were stored in the common data environment.

Decision

The TCC granted the interim mandatory injunction and held, amongst other things, that:

  • Damages would not provide an adequate remedy for Trant because the likely losses on the GBP 55 million project would far exceed the GBP 1 million cap on damages recoverable from MML under the alleged contract. The TCC also found that Trant's potential losses would not be purely financial since the works were part of "a wider project to benefit the Falkland Islands".
  • The balance of convenience favoured granting the injunction. Even if a contract had not been formed, there was a "high degree of assurance" that Trant was entitled to access the design data in the common data environment. It was also relevant that, without access, Trant would lose a year's progress on its works, so the injunction would preserve the status quo.

Comment

As this case demonstrates, the coordinator of the common data environment within a BIM enabled project can be the gatekeeper to the data room for the entire project. If a BIM coordinator revokes access to a common data environment, which contractually it may be entitled to do (for example, for non-payment), the BIM coordinator is not only revoking access to its own designs, for example, but, potentially, to all other designs, schedules, contracts, reports and other data and information about the project within that platform.

In circumstances where the BIM coordinator is one of the project participants and not the employer, revocation of access to a common data environment could bring the project as a whole to a standstill. Whilst injunctive relief might be available in some jurisdictions, such as England & Wales, in other jurisdictions, it might not. Moreover, courts and tribunals often face difficulties when trying to deal with urgent injunction applications, as it is often unclear which party is right, and the prospects of success will depend on the particular facts and circumstances of each case.

It might be said that an employer is best placed to act as the BIM coordinator; however, the employer itself may not have the capability and / or the requisite technical expertise to act in that capacity.

On each project it is essential to carefully consider which party is best placed to host and control access to the common data environment. If, for example, a project participant is best placed to act as the data coordinator and gatekeeper, an employer may wish to regularly extract and store data from the common data environment, so as to ensure it has the most up-to-date project information. This may help to reduce the risk of a project becoming paralysed in the event access to the common data environment is denied.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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