A contractor hired to rebuild the RNLI’s lifeboat mooring pontoon on the Fowey River in Cornwall has failed to argue that the pontoon was outside of England, so outside the jurisdiction of the cover.
The dispute is between ground engineering contractor Van Elle and specialist marine contractor Kevnot MorLift.
In 2021, KML contracted Van Elle to replace the pontoon and mooring piles, which were owned by the RNLI and used to moor their lifeboats. Upon completion, the companies fell out over the final bill and took their dispute to adjudication.
In June, an adjudicator decided KML should pay Van Elle £335,000. KML refused, and Van Elle took the case to the High Court for enforcement.
In a hearing last month, lawyers for KML argued the judgment could not be enforced because the pontoon, on a river estuary a mile inland, was outside of England so not within the court’s jurisdiction.
They argued it was outside of the jurisdiction as defined by the Housing Grants, Construction and Regeneration Act 1994.
Trial judge Stephen Davies said the case “raises the interesting but complex question of the true territorial extent of [the act] as amended, including the right to adjudicate disputes arising under the contracts to which the Construction Act applies”.
The act doesn’t define England, Wales or Scotland.
Lawyers for KML argued that, as there is no definition, the definition in the Local Government Act should be used, effectively making the boundaries of England at Fowey the same as those of Cornwall. They are marked on the Ordnance Survey map with a black line, which is around the low tide mark.
The pontoon is similar to those used by cruise ships and extends into the mouth of the river. It is over the line on the map. KML therefore argued it is outside of England under the Construction Act, and therefore outside of the jurisdiction of the High Court.
The judge disagreed. He said that, when applied to a tidal river, the line on the OS map should be taken to signify just the low water mark and not the extent of the realm. The limit of England should be considered to be a line drawn across the mouth of the river.
“I am satisfied that no interested or informed reader would feel able to conclude, in the light of all of the above facts and matters, that it was the conscious intention of parliament at the time of the enactment of the Construction Act that the dividing line in relation to rivers entering the sea was as drawn on the OS map,” he said.
“That is plainly inconsistent in my view with the fact that construction operations in relation to inland waters were (as I have found) plainly intended to fall within the Act, whereas construction operations in relation to territorial waters and the high seas were not.”
“When applied to the facts of this case, it is not realistically open to KML to argue, therefore, that the contract for piling works was not a contract for construction operations in England,” he said.
He said the challenge was “misconceived” and ruled that the adjudicator’s decision must be enforced.
Van Elle Ltd v Keynvor MorLift Ltd
Technology and Construction Court (HH Judge Stephen Davies) 8 December 2023
