Adjudicator’s jurisdiction: where does England end?
9 January 2024
This is the unusual question HHJ Stephen Davies recently asked himself when confronted with a jurisdictional challenge to the enforcement of an Adjudicator’s decision in the case of Van Elle Ltd v Keynvor Morlift Ltd [2023] EWHC 3137 (TCC).
Van Elle was employed to replace berthing and mooring piles at the RNLI lifeboat station on the River Fowey. The parties found themselves in dispute over the sums owed to Van Elle, but there was no contractual right to adjudicate in the contract for the works.
Van Elle successfully referred the matter to adjudication, asserting that it had a statutory right to adjudicate under the Housing Grants, Construction and Regeneration Act 1996 (the “Act”) and the Scheme for Construction Contracts. The Defendant challenged the adjudicator’s jurisdiction throughout and resisted enforcement of his decision. In doing so Keynvor argued that the case was not suitable for summary judgment (the standard approach to enforcement of adjudicators’ decisions). They argued that the Court should not determine the line of the river mouth without expert evidence.
However, the Judge was not persuaded on the basis that the location of the works was some way from the mouth of the river. The Judge therefore determined that the works were carried out in England and that the Adjudicator consequently had jurisdiction.
In the end, the determining factor was the location of the line defining the mouth of the Fowey. The Judge determined that the new piles were on the riverward side of that line (some way up the river). The construction operations therefore took place in England as defined under the Act. The riverbed was land in England, for the purposes of the Act, albeit that it was covered with water.
That relatively simple outcome was the subject of some 60 paragraphs of careful judicial attention. The Judge considered legislation dating back as far as the Territorial Waters Act 1878 (because the Ordnance Survey had not been updated to reflect newer legislation) and as wide-ranging as the UN Convention on the Law of the Sea.
This torturous route led the Judge to his decision that the line should be drawn across the mouth of the river.
Keynvor also failed in its assertions that there had been breaches of natural justice in the way in which the Adjudicator dealt with the claim.
The upshot was the Judge enforced the Adjudicator’s decision.
The Birketts view
This is a useful clarification of the position where parties are carrying out construction works within inland waterways, particularly the vast number of tidal rivers around the coast of England. Here the position ended up being quite straightforward. The works were carried out some way from the mouth of the river. If the works are being carried out close to the line, the answer may not have been quite as clear.
A significant takeaway is that you cannot trust the Ordnance Survey to define what is and isn’t ‘England’.
There may have been assumptions made here that the Act would not apply to marine engineering. This is a useful reminder not to take that position for granted. Proper advice on contractual provisions should avoid surprises like this. This is particularly important if the location of your site is unusual, as in this case.
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John Fawcett
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2024.