Publish date

15 December 2023

Statutory right to adjudicate – where does England end?

The statutory right to refer construction disputes to adjudication is contingent upon there being a “construction contract” for “construction operations”, as defined in the Construction Act.

One element of these requirements is that the construction operations must be carried out in England, Wales or Scotland.

Last week’s judgment from the Technology & Construction Court (TCC) in Van Elle Ltd v Keynvor Morlift Ltd had to grapple with the rather intriguing question of “where England ends”. The project related to the replacement of berthing and mooring piles at a pontoon in Fowey Harbour, used by the RNLI to moor its lifeboat.

The defendant argued that since the works were carried out below the River Fowey’s low water line, they were not construction operations in England.  Their position was that the project therefore fell outside the scope of the Act, so there was no statutory right to adjudicate. They therefore argued that the adjudicator did not have any jurisdiction, so the purported adjudication and the decision resulting from it were of no effect. They raised their jurisdiction challenge during the adjudication, and resisted enforcement of the adjudicator’s decision in the TCC, on that basis.

Having considered various international conventions, orders, the Interpretation Act 1978 and Ordnance Survey maps and boundary lines, the Judge reached the conclusion that England ends at the mouth of the river, not the low water line. This followed the logic that areas of land covered in water such as lakes and rivers clearly form part of England, Wales and Scotland, and so too should the inland waters of a tidal estuary.

Whilst obviously a very fact specific judgment, two more general points of note from this case are:

  1. Firstly, it underlines the robust attitude of the TCC in enforcing adjudicator’s decisions wherever possible, with jurisdiction challenges succeeding only in rare cases
  2. Secondly, that there is little to lose and potentially much to gain for a party that wants the ability to adjudicate making sure that they include a contractual right to adjudicate in their construction contract, particularly where there may be any doubt as to whether or not a project falls squarely within the scope of the Act.

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