In Van Elle Limited v Keynvor Morlift Limited [2023] EWHC 3137 (TCC) HHJ Stephen Davies was asked to consider the “interesting but complex” question of the true territorial extent of Part 2 of the Housing Grants, Construction and Regeneration Act 1996 (the “Construction Act”). Or put shortly, where does England end?

Background

Keynvor Morlift Limited (“KML”), engaged Van Elle Limited (“VEL”) to install replacement piles at a pontoon at Fowey Harbour in Cornwall, which was owned and used by the RNLI to moor a lifeboat (the “Works”). The Works took place on the “seabed” below the river Fowey’s low water line.

VEL commenced a true value adjudication against KML in respect of its final account. The Adjudicator found in VEL’s favour and KML was ordered to pay VEL c.£335k together with interest, fees and expenses associated with the adjudication (the “Decision”).

KML did not pay and VEL applied for summary judgment enforcing the Decision.

What did the Court Decide?

VEL successfully enforced the Decision and KML was ordered to pay VEL the outstanding sums.

Lack of Jurisdiction

Contrary to KML’s position, the TCC was satisifed the Works fell within the scope of section 105(1)(b) of the Construction Act as they formed “part of the land” notwithstanding the fact the Works were carried out on land covered with water. The Works were also not excluded by section 105(2) of the Construction Act.

In coming to these findings, the TCC referred to the Ordnance Survey (“OS”) maps, various international conventions and the Interpretation Act 1978 to determine the extent of the ‘territorial sea’ and the meaning of ‘England’. The Judge considered that for the purposes of the Construction Act, the boundary of the ‘territorial sea’ for an inland waterway such as the river Fowey was capable of extending up to the mouth of the river (thus encapsulated the Works).

Breach of Natural Justice

The TCC also rejected KML’s assorted arguments as to natural justice and relied on the principles summarised in Pilon Ltd v Breyer Group [2010] EWHC 836.

Briefly stated, the TCC found that the adjudicator had legitimately considered each of the issues KML raised, and any oversights were “modest and unintentional”. One of VEL’s arguments was found to be misconceived, with VEL using “words used out of context in a spurious attempt to challenge” the Decision.

Conclusion

The case clarifies a seemingly straightforward, but in reality interesting and complex question as to where England ends for the purposes of the Construction Act, and will be of particular interest to all those who might carry out works to land covered by inland waters.

The rejection of the Defendant’s assorted arguments on natural justice also underlines the Court’s unwavering commitment to robustly enforcing adjudicator’s decisions in accordance with the overriding objective where there is no arguable defence.

 

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David Spires 

Partner

E-mail: DSpires@hklegal.co.uk

 

This article contains information of general interest about current legal issues, but does not provide legal advice. It is prepared for the general information of our clients and other interested parties. This article should not be relied upon in any specific situation without appropriate legal advice. If you require legal advice on any of the issues raised in this article, please contact one of our specialist construction lawyers.

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