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Trant Engineering Limited v Mott MacDonald Limited [2017] – first reported BIM case

December 2017 - Issue 100

Building Information Modelling (BIM) is a digitally collaborative method of working between project team members to enable the whole life value of an asset to be optimised.

Trant Engineering Limited (Trant) v Mott MacDonald Limited (Mott) [2017] considered the claimant’s entitlement to access the design data held by Mott (as the BIM co-ordinator) following a payment dispute. We understand this is the first reported case on BIM and it provides a useful reminder of the control a BIM co-ordinator holds over a project.

Trant was employed to construct a power station in the Falkland Islands for the Ministry of Defence on the £55 million Mid Atlantic Power Project. Mott was engaged to carry out the design services for the project and held access to the common data environment.

A proposed contract between Trant and Mott included terms regarding the scope of services and terms of payment, however Trant never signed the documentation. The claimant argued the contract provided for a lump sum payment of £780,000 for the design works on the project and the claimant had paid £500,000 on account for the works carried out. However, Mott submitted 2 further invoices, exceeding the original fee estimate, arguing additional costs and a change in scope. The invoices were for £475,000 and £1.627 million. Trant disputed the invoices and did not make the payment, instead Trant submitted a pay less notice in regards to the invoice for the £1.627 million. Due to the lack of payment received, Mott denied Trant access to the BIM data by revoking the passwords already issued. Trant subsequently made an application for mandatory injunction to permit Trant and other third parties access to the design data while the main dispute was pending resolution.

The court considered whether a contract existed between Trant and Mott and what was the scope of Mott’s services and the fees for those services.

Mott argued that a contract had never existed because Trant had never accepted the terms of its offer by signing the contract documentation. Additionally, Mott made payments that were not in accordance with the payment terms, arguing the terms had not been accepted by performance. On the other hand, Trant argued a contract had existed and that they had accepted the terms of the proposed contract via performance in making the payment of £500,000 on account for the works to be carried out.

The court was required to consider which course of action had the least risk of injustice; there must be a high degree of assurance before making an injunction. The court ordered Mott to grant access to the data environment on the condition of Trant making a payment of £475,000 into court, reflecting the sum of the invoice which had not been subject to the pay less notice. In reaching this decision the court considered there to be a high degree of assurance that the claimant was entitled to access the data to which access had already been granted. In addition, the delay to the project for the claimant and the inclusion in the contract of a cap of £1 million on the defendant’s liability, rendered that damages were not an adequate remedy.

BIM is designed to be a collaborative tool, not a hindrance to access project data. This case highlights the control a BIM co-ordinator holds over a project and the importance of agreeing elements such as scope of services and payment methods at the outset of the project. If you would like assistance in ensuring your BIM contracts are drafted accurately please contact Rebecca Palmer on rpalmer@prettys.co.uk or 01473 298274.
 

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