Out-Law News | 29 Aug 2017 | 9:49 am | 2 min. read
The consultant, Mott McDonald, changed the passwords associated with the account to prevent client Trant Engineering from accessing the model following a dispute over payment for the design work. Mott also claimed that the two parties had not entered into a valid contract. Trant has argued that the parties did in fact conclude contract negotiations.
The court concluded that there was a serious case to be tried between the parties, that damages would not necessarily be an adequate remedy for either party and that the balance of convenience lay in granting the injunction, satisfying the three legal tests for granting an injunction. It also ordered Trant to pay an amount equal to the first of Mott's outstanding invoices into court, pending a full hearing in the case, according to a summary published on Lawtel.
While the full judgment is yet to be published, the case is interesting as one of the first in which the court has been asked to settle a dispute arising from the use of BIM, according to David Greenwood of Pinsent Masons, the law firm behind Out-Law.com.
"The case represents a useful reminder of the importance of agreeing the correct terms when it comes to access rights to design data held in a BIM model," he said. "Where access to another party's design is conditional on timely payment of fees or some other performance by the paying party, there is a real risk that non-payment or non-performance could result in passwords being revoked and the design data being held hostage."
"These sorts of problems are likely to become more common as parties increasingly rely on joint access to a digital environment to deliver projects. Careful thought should be given up-front to ensure the licences granting access rights to the data are robust and watertight," he said.
BIM involves the use of centralised computer-generated models to collect and manage information about the design, construction and operation of a project. This allows employers, contractors and subcontractors to make real-time changes to the same project.
Trant had been engaged by the Ministry of Defence to deliver a £55 million power station project in the Falkland Islands. It subsequently engaged Mott McDonald to carry out design work on the project, including the preparation and implementation of a BIM model. Mott also acted as the BIM coordinator, controlling access to the common data environment.
Trant's case was that Mott had agreed to do so for a lump sum payment of £780,000, although neither party had signed the contractual documentation, according to the Lawtel summary. By the time the dispute reached court, it had made £500,000 worth of payments. Mott had issued invoices for a further £2.1 million, which it claimed represented additional costs and changes in scope. It withdrew Trant's access to the common data environment when these payments were not made.
Granting the interim injunction, the court held that whether a contract had come into existence between the parties and on what terms was a serious issue to be tried. While it did not have a high degree of assurance that Trant would be able to establish the existence of a valid contract, it heard that the client had full access to the design materials and shared folders before Mott had withdrawn access.
It required Trant to pay £475,000, reflecting the first outstanding invoice issued by Mott, to minimise the potential for injustice should Mott be successful after a full hearing.