In Trant Engineering Ltd v Mott MacDonald Ltd  EWHC 2061 (TCC) the High Court was asked to grant an interim injunction to permit access to a building information model (“BIM”).
The claimant was employed by the Ministry of Defence as a works contractor to build a £55 million power station in the Falkland Islands and the defendant was engaged by the claimant as a design consultant for the project.
The defendant’s role in the project was to produce design data which it controlled and hosted in a shared data environment that the claimant had access to.
During the course of the project, a fee dispute arose which prompted the defendant to suspend work and revoke the claimant’s access codes to the common data environment.
Pending resolution of the dispute, the claimant applied for a mandatory interim injunction requiring the defendant to give it and other stakeholders in the project access to the design data.
The Court held that in determining whether to grant the claimant the mandatory injunction it had to (i) consider which course posed the lesser risk of injustice and (ii) have a high degree of assurance that the claimant was entitled to the design data in the BIM.
Damages would not provide an adequate remedy for the claimant. The likely losses on a £55m project would be significant. It was alleged that a cap of £1m applied to any damages claim against the defendant. Further, the Court found that the works were part of a wider project to benefit the Falkland Islands.
The balance of convenience favoured granting the injunction. Whilst there was a dispute as to whether a written agreement had been formally entered into by both parties, the Court felt it likely that Trant was entitled to access the data. Without access, Trant could lose a year’s progress on the project so granting the injunction would help preserve the status quo.
The defendant was ordered to give the claimant access to the design data subject to the claimant making a payment into court (£475,000) regarding the disputed invoices to minimise the potential for injustice should the defendant succeed at the full trial.
This case is important because it appears to be the first time a court has considered access to a BIM as part of a construction dispute. The case has ignited debate as to who is best placed to be a BIM host, as a host is not only a gatekeeper to the information stored within a BIM, but also fundamental to the steady progress of a construction project.
This case also highlights the importance for parties to a construction project to ensure that they set out adequate protection measures in relation to access to BIMs in the event that a dispute arises in the contractual documents.