The recent US case didn’t go to court, but eventually we will see legal spats over BIM in the UK - so how will we go about resolving them?
I have been following the development of Building Information Modelling (BIM) with interest for some time, so was intrigued by news of a recent case in America.
As BIM has been used in the US for a number of years, it was inevitable that it would be litigated at some point and the standout issue here was that the insurers did not want to put the case to a jury, so it was settled out of court. We don’t, of course, have jury trials for construction cases in the UK but for me this raises the question of whether people will be wary of BIM when they know that a dispute over it could be taken to adjudication, fearing that the complex nature of the dispute will not be suitable for adjudication.
The facts of this case though suggest that the real problem was a lack of communication between the parties, something that can be simply solved, and perhaps the lesson to be learned is that a systematic approach to procurement such as starting off with a detailed risk analysis and reviewing that regularly during the project will pay dividends.
But what happens if it does go wrong? BIM is all about collaboration and there’s no doubt that BIM cases will rely heavily on expert evidence. Which leads us nicely to the latest edition of the Technology and Construction Court Guide, which encourages the experts for all parties to give their evidence at the same time (a process dubbed “hot-tubbing”).
It seems to me that BIM and hot-tubbing were made for each other - traditionally, experts are heard in sequence, taking several days each on complex matters. One expert’s view on a particular issue might only be revisited several days later when the next expert reaches the same point. This is less desirable in terms of considering the issue in the round and is likely to lead to extra time and costs of hearing the dispute.
Hot-tubbing requires consent but parties who collaborate to get things right at the outset might also acknowledge they should still collaborate if it goes wrong.
Michael Conroy Harris is a senior legal manager at Eversheds