25 January, 2018
In Trant Engineering Ltd v Mott MacDonald Ltd, [2017] EWHC 2061 (TCC), England’s Construction and Technology Court, granted the Claimant an injunction, compelling the Defendant to provide access to design data in a common data environment (CDE) which the Defendant had prepared in connection with a construction project. Whilst the dispute primarily focused on the existence of a contract and its terms, this is perhaps one of the first UK published judgment’s where Building Information Modelling (BIM) is the subject-matter.
Background
The Claimant was employed by the Ministry of Defence to construct a power station in the Falkland Islands. During the tender process for that contract, the Claimant engaged the Defendant, Mott MacDonald Ltd (MML), to provide design consultancy services for a modest sum, with a view to MML carrying out full design consultancy services, should the tender be successful. The services included preparation and implementation of BIM. In this case, MML intended to implement the use of engineering project software called ProjectWise, to enable the design teams manage, share and distribute design data on a single platform.
The tender was successful and the Claimant notified MML that the project would go ahead, following which MML started to carry out design services. Although MML sent a contract and Schedules setting out, amongst other things, the scope of work it was to provide, terms of payment and the Claimant’s entitlement to a licence to use the design data once it had received payment, the Claimant did not respond to this and did not sign the contract.
The Dispute
The parties fell into dispute regarding the scope of works to be carried out by MML and its entitlement to payment.
MML claimed that there was no contract between the parties. Since its remaining invoices were unpaid, it notified the Claimant that it was suspending all work with immediate effect pending payment and invoking its copyright and intellectual property rights in respect of the design data provided up to that time. MML denied the Claimant access to the servers hosting the design data in ProjectWise, by revoking the passwords that had been issued to the Claimant.
The Claimant subsequently terminated MML’s services on the grounds that MML had repudiated the contract and sought an injunction seeking access to the CDE.
Injunction granting access to CDE
The Court granted the injunction allowing the Claimant access to the design data that had already been completed by MML because it found that:
(1) there was a serious issue to be tried. It was quite, feasible, the Court said, from the documents it had seen, that there was a concluded contract based on the contract documents sent by MML to the Claimant, followed by performance by the parties;
(2) damages would not be an adequate remedy for any delays caused by the Claimant’s inability to use the design data because the likely losses on a project of this nature would far exceed the £1 million limit cap on damages recoverable from MML under this form of contract;
(3) as to the balance of convenience, the least risk of injustice lay with granting the injunction. The Court was not satisfied that there was a high degree of assurance that the Claimant would be able to establish at trial a contract based on the documents sent by MML to the Claimant. It was satisfied that there was a high degree of assurance that the Claimant was entitled to the design data that had already been carried out by MML and that was sitting in the public database area of ProjectWise, on the basis that it had either been done under the contract produced by MML or a simple contract. Even if there was no contract, MML had already accepted payment on account in respect of the work that it had carried out.
Comment
With the increasing use of BIM in construction projects in Hong Kong, the Trant case raises the important question as to which party should be the gatekeeper of CDE. Denying access to CDE could effectively bring the project to a standstill. Should the employer host the CDE such that it has full control over the access to CDE thus avoiding the Trant case scenario? But will the employer have the adequate technical resource to do so, in particular, in cases of less sophisticated employers? How about the project team remaining the CDE host but with regular back-up by employer?
Whatever the arrangement may be, it is essential that the contract contain clear terms regarding its use, access rights, who is to host and have control of the database, intellectual property and licence rights. Parties need to ensure that data access would not be allowed to be used as a bargaining chip in a dispute.
