The Technology and Construction Court (TCC) has granted a mandatory interim injunction requiring a professional consultant to give the contractor access to design data in a building information model (BIM model) in what seems to be the first time a court has considered access to a BIM model as part of a construction dispute.
The design consultant for a £55m project for the Ministry of Defence to construct a power station in the Falkland Islands had withdrawn access to the BIM model in a dispute over fees payable. The claimant contractor had engaged the defendant to carry out design services but the contractual documentation had never been signed by the claimant. In those contract terms, the contractor had a licence to use the consultant’s designs. The consultant was the building information modelling coordinator and controlled access to the common data environment.
The liability cap in the contract on which the claimant relied and the impact of the delay to the project for other stakeholders meant that damages might not provide the claimant with an adequate remedy.
Although the court could not have a high degree of assurance that the claimant would establish the existence of a contract on the terms put forward, it did have a high degree of assurance that the claimant was entitled to access to the design data. The claimant had been able to access the data before the termination of work by the defendant, whether there was a contract or not. The defendant was ordered to permit access to the data in the BIM model which had previously been available to the claimant and others, subject to the claimant making a payment into court reflecting the invoice which had not been the subject of a pay less notice.
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