On Tuesday 12 November Fenwick Elliott held its first Digital Technology breakfast seminar at One Aldwych in front of a select group of industry professionals specialising in digital construction technology.

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Our Head of Technology and Innovation, Dr Stacy Sinclair, chaired the seminar of talks from lawyers at Fenwick Elliott and a talk on data rights in construction projects by Lynne McCafferty QC of 4 Pump Court. We hope to make these DigiTech breakfast seminars a regular event, taking place every other month, so if you are interested in attending future events why not drop us an email at events@fenwickelliott.com.

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To start the seminar Jeremy Glover spoke about design obligations in a digital era. I was particularly struck by Jeremy’s points and the discussion which followed in relation to design innovation. There appears to be an inherent conflict between the push for innovation in the construction sector and the professional standard for design liability. For example, in circumstances where a new technique proposed by a member of the design team fails, that consultant could find itself at the end of a claim that it was negligent in departing from general and approved practice. There was some concern that this approach was punitive for those designers who are pioneering new techniques in the industry. Jeremy explained the importance of making sure the client fully understands the risks of new techniques being proposed. If a project is going to be using innovative techniques, then the risks involved should be understood and allocated accordingly.

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" There appears to be an inherent conflict between the push for innovation in the construction sector and the professional standard for design liability."

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Stephanie Panzic then gave a very interesting talk on drones, their increasing use in the construction industry and the upcoming changes regarding the registration of drones. There was experience in the room of the use of drones on construction sites for progress monitoring and site survey. The potential to use drones for the transportation of goods to site was also discussed but it was noted that, at present, this had limited implementation. Drone flights for the purposes of commercial operations and flights above a congested area require permission from the Civil Aviation Authority and were likely to be carried out in most cases by specialist subcontractors. From 30 November 2019 pilots and operators (i.e. the owners of the drones) will have to pass an online pilot’s test and register and label each of their drones.

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Finally, Lynne McCafferty QC spoke in relation to data rights in construction projects. Lynne highlighted two big issues raised by data usage in the construction sector. The first is the requirement to protect the personal data of employees and other individuals. It was noted that the amount of personal data being collected on a construction site (e.g. wearable sensors, electronic access systems) was increasing year on year and that this data would need to be adequately protected. The second issue is the protection of rights over proprietorial data. For example, where a consultant inputs its copyrighted material into a common data environment, who has rights over these contributions? Where BIM is implemented, the answer is likely to be in a well drafted BIM protocol which sets out clearly the intellectual property rights of contributors and, importantly, is clear as to who owns the information model.

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As I mentioned at the start of this blog, we are looking to repeat these seminars in the near future. If you have any suggestions for DigiTech talks which you would like us to consider giving at a future seminar, please let us know.

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