In this article, ALA Commercial Manager Sean Galpin analyses the recent case of Van Elle Ltd -v- Keynvor Morlift Ltd [2023] EWHC 3137 (TCC).

This case turned on the interesting question of “where England ends.”

Introduction

In the legal landscape, there are moments when seemingly mundane questions give rise to profound legal debates. One such intriguing question is the geographical extent of England and, by extension, the borders that define its territorial limits.

The Project

Keynvor More Ltd (KML), engaged Van Elle Ltd (VEL) through a Purchase Order to replace 4 piles on an existing pontoon at Fowey Harbour in the river Fowey in Cornwall. The pontoon was owned by the RNLI and served as a landing stage for the Fowey lifeboat. Fowey Harbour is considerably inland of the point where the river Fowey meets the sea. See the map below which shows the RNLI Fowey Lifeboat Station and its position relative to the sea.[1]

 The Background

VEL commenced an adjudication that KML should pay VEL the sum of £335,142.33 plus interest based on the true valuation of VEL’s entitlement under the Contract. The adjudicator found in favour of VEL and on 27 June 2023 determined that KML should pay VEL the sum of £335,142.33 plus interest and legal fees. VEL then applied for a summary judgment from the Technology and Construction Court (TCC) to enforce the adjudicator’s decision.

The Dispute

The crux of the matter lay in precisely determining where the border between England and offshore fell concerning the construction works. The ambiguity surrounding the geographical demarcation posed a unique challenge to the court, requiring a meticulous examination of historical, legal, and geographical factors.

KML argued that Section 104 (6) of the Construction Act did not apply to the construction works. The legislation reads:

104 (6)This Part applies only to construction contracts which—

…

(b)relate to the carrying out of construction operations in England, Wales or Scotland.

KML stated that the newly installed pile works were undertaken below the low tide water line, as marked by a black line on an Ordnance Survey map which is defined as the boundary of England in the Interpretation Act 1978.

Thus, KML said that the adjudicator had no right to adjudicate as the works were not in England and fell out of scope of the Construction Act.

VEL referred to UNCLOS (United Nations Conventions on the Law of the Sea) Article 8  which states

“… waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.”

Applying UNCLOS made it clear that the pontoon sits within the internal waters of England.

VEL also claimed that the piles should be considered as part of the pontoon system as a whole, and that the pontoon system as a whole forms part of England.

The Decision

Stephen Davies LJ found in favour of VEL. He found that England ended at the mouth of the river and not at the low tide water line.

The decision was based on the logic that rivers, lakes, harbours, and tidal estuaries all form part of England. The judge also commented on KML’s defence, stating:

“the suggestion that the Court cannot determine the location of the mouth of the river is, with respect, a nonsense. The concept of a mouth of a river is well known, it is where it enters the sea (or a lake).”

Hence the Construction Act did apply, and the adjudicator’s decision was enforceable.

Key Takeaways

Beyond its immediate legal implications, the decision reflects the complexity of jurisdictional issues arising from projects that traverse multiple territories. The court’s meticulous consideration of historical, legal, and geographical factors underscores the importance of a nuanced approach when dealing with such intricate questions.

Other key points are:

• It confirms yet again the Technology and Construction Court (TCC) are reluctant to overturn a decision made by an adjudicator. This happens only in rare cases.
• The judgement provides guidance and sets a precedent on the boundaries of England and the Construction Act for future disputes and adjudications. This will be of particular interest to those engaged in onshore/offshore works, such as HV cable projects, wind farms, LNG projects, marine piling projects and the like.

 

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