BIM reaches the courts

Withholding access to a common data environment was an inadequate response to a flawed contract

The first reported UK BIM case has arrived: Trant Engineering Ltd v Mott MacDonald Ltd.

The Ministry of Defence employed Trant in May 2016 to provide a new £55 million power generation facility in the Falkland Islands, the Mid-Atlantic Power Project. During the tender period, Trant had engaged Mott MacDonald to provide design consultancy services, including preliminary design, detailed design, design co-ordination, preparation and implementation of BIM and procurement support and principal designer responsibilities.

In July 2016, after Trant had notified Mott MacDonald that it had been given the green light to go ahead with the project, Mott MacDonald emailed to Trant a proposed contract and schedules regarding its scope of services and terms of payment. Trant did not respond to Mott MacDonald’s proposed contract, nor did it sign and return the contract.

The relationship between Trant and Mott MacDonald eventually broke down. In April 2016 Mott MacDonald had issued an invoice claiming the sum of £475,000. Trant did not pay it or issue a pay less notice. It did pay Mott MacDonald £500,000 on account in early 2017, and in May Mott MacDonald issued a further invoice for £1,626,000. Trant did not pay that and in June Mott MacDonald denied Trant access to the servers hosting the design data (ProjectWise) by revoking its passwords.

The dispute concerned what services Mott MacDonald was to provide, their value and what sums Mott MacDonald was entitled to. In addition, the parties disputed whether a contract existed and whether the terms of any such contract entitled Trant to access the design data Mott MacDonald had prepared which was stored on ProjectWise.

Trant did not pay and in June Mott MacDonald denied Trant access to the servers hosting the design data

Ultimately Trant applied to the Court for an interim injunction that Mott MacDonald should provide access to the design data.

Trant argued that a contract did exist which included the obligation for the BIM preparation and implementation. While it had not responded to the proposed contract in July 2016, Trant considered that it had accepted those terms and conditions by performance in making payments to Mott MacDonald. Further, it argued that Mott MacDonald carried out its services in accordance with the schedules attached to that contract.

Mott MacDonald argued that a contract did not exist. It made the point that there was no express acceptance of the contract and that the fees, contract terms and scope of its services had not been finalised or agreed.

On the documents before it, the Court was not able to determine whether or not a contract existed between the parties – that was to be decided at a full trial. But it was satisfied that there was a serious case to be tried, that damages would not be an adequate remedy and that there was a high degree of assurance that Trant was entitled to the design data that Mott MacDonald had already carried out. The Court noted that even if there were no contract, Mott MacDonald had already accepted payment on account in respect of the work that it had carried out.

The Court also considered that the balance of convenience lay firmly in granting the injunction. It therefore ordered Mott MacDonald to make available the design data that had been procured to date.

As this case reminds us, careful consideration should be given to the identity of the co-ordinator of the common data environment (CDE) and the terms on which each participant has access to it. To avoid disputes halting a project, parties may want to put in place, where possible, procedures for alternative access to backup copies or otherwise.

This case also highlights the importance of agreeing fundamental obligations (such as scope of services) at the outset. Parties need to embrace dealing with these issues in their appointment. Here, denying access to the CDE was a by-product of a wider dispute about scope of services and payment. 

Stacy Sinclair, Fenwick Elliott

 


IN PLAIN ENGLISH

BALANCE OF CONVENIENCE

In Trant v Mott MacDonald, when deciding whether to order the injunction, the Court had to consider the question of the 'balance of convenience': which course of action was likely to carry the least risk of injustice if it turned out to be wrong. The Court must weigh the relief given to Trant against any inconvenience or injury to Mott MacDonald if it did grant the injunction.

Trant argued that without restoring access to the relevant database on ProjectWise, the project could not be progressed: Trant would be forced to start the project over again, losing a year of progress. Trant also argued that there would be little harm to Mott MacDonald in providing access to the design data that it had already provided, particularly in circumstances where Trant was prepared to pay compensation, whether by way of outstanding fees or damages that might subsequently be ordered.

The Court considered that the balance of convenience lay firmly in granting the injunction.