Introduction

The case of Trant Engineering v Mott MacDonald [2017] EWHC 2061 (TCC) is notable for being the first judicial decision to consider the use of BIM, and provides some interesting insight into the practicalities of using a BIM Model.

Summary

In granting an interim injunction requiring a BIM Co-ordinator to provide access to the BIM model, the Court confirmed that an employer can, in appropriate circumstances, obtain access to the BIM Model if a dispute with the BIM Co-ordinator develops. The case also highlighted that parties on BIM-enabled projects should carefully consider which party should host and control access to the BIM Model, and the circumstances (if any) in which access can be denied.

What is BIM?

In her judgement, Mrs Justice O’Farrell described BIM as follows:

The BIM system is building information modelling. It comprises a software system which is intended to assist the design, preparation and integration of differing designs and different disciplines for the purposes of adequate and efficient planning and management of the design and construction process.”

A benefit of BIM is that as data is uploaded to the model, clashes between designs inputted by different consultants can be identified at an early stage, so as to save time when on site. BIM data is usually uploaded to a “Common Data Environment” which is shared between the various project participants, such as the consultants, the contractor and the employer.

The Facts

The claimant contractor (Trant) was appointed by the Ministry of Defence to carry out the construction of the “Mid-Atlantic Power Project”, a £55 million power station at the Mount Pleasant Complex in the Falkland Islands – the Mount Pleasant Complex being the main UK military base supporting the British Forces South Atlantic Islands.

Trant appointed the defendant (Mott) as a design consultant with a wide brief, encompassing various design responsibilities including acting as the building information modelling coordinator who controlled access to the Common Data Environment.

While Mott did produce a proposed form of appointment and scope of works at an early stage, the full contract was never entered in to. This, and the parties’ subsequent conduct resulted in a question as to whether a contract existed between the parties and, if there was a contract, what its terms were.

The parties ultimately entered into a dispute over fees payable. As a consequence of this dispute, Mott suspended the performance of their services and withdrew access to the codes of the BIM Model. Trant then terminated the alleged contract and sought an interim injunction to obtain access to the BIM Model pending the settlement of the wider dispute between the parties. Trant contended that this withdrawal effectively prevented Trant from proceeding with the project.

The Court’s decision

The injunction was granted requiring Mott to restore access to the BIM Model, but only after Trant making a payment into Court of £475,000 pending the final settlement of the dispute.

The injunction was granted following the test established in American Cyanamid Co (No 1) v Ethicon Limited & Ethicon [1975] UKHL. In granting the injunction, Mrs Justice O’Farrell was satisfied that:

  • there remained a serious issue to be tried – there remained an outstanding dispute to be settled as to what services had been provided by Mott and the sum that Mott was entitled to for those services;
  • damages would not be an adequate remedy for Trant – amongst other reasons, the contractor’s potential losses would not be purely financial given the wider benefit of the project to the Falkland Islands; and
  • given that damages would not be an adequate remedy, the balance of convenience favoured the granting of the injunction – there was a high degree of assurance that the contractor was entitled to access the design data that had already been carried out on the basis that the work was done under the alleged contract or under a simple contract under which the design consultant had accepted payment on account in respect of the work it had carried out. It was also relevant to the Court that without access, the contractor would lose a year’s progress on the works, so the injunction would preserve the status quo.

Implications

As the use of BIM Protocols become increasingly prevalent, this case serves to highlight the importance of considering in advance the impact that losing access to the BIM Model may have on the progress of a project should a dispute with the BIM Co-ordinator occur and to allow for the same in the BIM Co-ordinator’s appointment.

It is important to emphasise that the decision in this case to provide interim access to the BIM Model was because of the particular facts at play – including the perceived significance of the development to the Falkland Islands and its people. Rather than establishing a legal principle in relation to how BIM Models should be treated, the Court was enforcing established legal principles applying to interim injunctions. As such, parties to construction disputes where access to the BIM Model has been withdrawn should not assume that an injunction will be granted to restore access.

In the present case, Trant and Mott failed to conclude a contract. This lead to uncertainty, not only as to the amount of fees due and payable to Mott that resulted in a dispute but also to whether Mott was entitled to withdraw access to the BIM Model because of the alleged non-payment. Given the importance of the BIM Model to a project and the set back that its sudden absence could cause to the progress of a development, this case serves as a timely reminder for developers on BIM-enabled projects to consider who should host and control access to the BIM Model and the circumstances (if any) in which access can be denied and to ensure that this is captured in the relevant contract documents.