Defining the boundaries of offshore adjudication

Does an adjudicator have jurisdiction to decide issues arising in connection with construction work within waterways and tidal rivers? Where does “England” end in the context of a tidal river?

Background facts

The interesting case of Van Elle Ltd v Keynvor Morlift Ltd [2023] EWHC 3137 (TCC), decided by HHJ Stephen Davies, involved a novel question. The Judge had to decide the extent of the realm of England in connection with works in the River Fowey.

The claimant sub-contractor was employed to replace berthing and mooring piles at a pontoon at Fowey Harbour in the River Fowey in Cornwall, which was used by the Royal National Lifeboat Institution (RNLI) to moor its lifeboat. A dispute arose which the sub-contractor referred to adjudication. The sub-contractor was awarded £335,000.

The defendant contractor, who had been engaged by the RNLI, challenged the jurisdiction of the adjudicator. The contractor submitted that the Interpretation Act 1978 Sch.1, stated that “England” meant the area consisting of counties established by the Local Government Act 1972 s.1 and what had been marked out by the Ordnance Survey. The works were carried out below the river’s low water line, beyond the scope of the County of Cornwall as marked on the OS map. This meant they were not construction operations in England.

The issues

Was the contract a “construction contract” in England as defined within section 104 of the Construction Act 1996?

To ascertain this, the Judge had to decide where England ends. The answer to that question would resolve whether the adjudicator had jurisdiction and thus, whether his decision would be enforced.

The decision

The Judge decided that England ends at the mouth of a river and that references to “land” in section 105(1) of the Construction Act 1996 included land covered with water, including lakes and rivers. In the case of rivers, the land extends to the mouth of the river.

This meant the adjudicator had jurisdiction because the contract was for construction works in England for the purposes of section 104 of the Construction Act 1996.

Implications

Whilst this case is fact specific, it will be of interest to any parties engaging in construction works in rivers, lakes and waters.