This Technology and Construction Court case relates to a summary judgment application to enforce an adjudicator's decision. It touches on a number of points relating to jurisdictional grounds and breaches of natural justice as a defence to the summary judgment. But, this article does not intend to focus on the natural justice argument or look at the decision regarding whether the pilings formed part of the land. Rather, it focuses on the jurisdictional issue and looks at how Judge Davies surgically dredges up the definition of England, as it applies in the Housing Grants, Construction and Regeneration Act 1996 (the " Construction Act "), from a mighty muddy quagmire of legislation.
The case originated from a construction dispute relating to the refurbishment of two pilings of the RNLI pontoon at Fowey Harbour. Following a successful adjudication, Van Elle Limited (" Van Elle ") sought to enforce the decision, which was done by way of summary judgment. Keynvor Morlift Limited (" Keynvor ") resisted the application on the basis that that the contract was not a contract for the carrying out of construction operations in England so the statutory right to adjudicate under the Construction Act did not apply. Further, Keynvor argued that the Court could not grant summary judgment because " there were – or may come to be – relevant issues of fact to be determined at trial such that it was not appropriate to determine the jurisdiction issue on a final basis…" .
Suffice it to say, Judge Davies was satisfied that " no further evidence was needed or could be supplied at a trial that would assist with the Court determining the jurisdiction issues " because, as you'll see below, this turned on where the mouth of the River Fowey is and " the concept of a mouth of a river is well known ". He therefore granted summary judgment in favour of Van Elle and corrected the course as to the definition of England in the Construction Act.
The Jurisdiction Issue
The Construction Act applies to construction operations which are carried out in "England, Wales or Scotland". However, it does not provide a definition of "England, Wales or Scotland".
In the absence of a definition, the Court agreed that the first port of call should be the Interpretation Act 1978 (" Interpretation Act "). This leads to the Local Government Act 1972 which confirms that boundaries shall be determined by the Ordnance Survey.
The Ordnance Survey Boundary Line Information Document directs the reader to the Territorial Waters Jurisdiction Act 1878 and Territorial Waters Order in Council 1964 which confirms that the extent of the realm (" EOR ") is the mean low water line.
The Territorial Waters Order in Council 1964 (" the 1964 Order ") had been replaced by the Territorial Sea (Baselines) Order 2014 (" the 2014 Order ") made under the Territorial Sea Act 1987 (" the Sea Act ").
The 2014 Order noted that the baselines of the territorial sea should be established by " the relevant provision of the United Nations Convention on the Law of the Sea (Cmnd 8941) (" UNCLOS ") as….set out in Schedule 1 of this Order ".
Article 9 of UNCLOS/2014 Order provided that " If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks ."
UNCLOS replaced the Convention of the Territorial Sea and Contiguous Zone, 1958 (" the 1958 Convention ") and the 1964 Order has been brought in to give effect to this 1958 Convention. Article 13 of the 1958 Convention contained similar wording to Article 9 UNCLOS/2014 Order. But, this specification relating to baselines of river mouths did not make it into the 1964 Order.
Judge Davies then noted that the Construction Act came into effect " at a time when the 1964 Order was still in force and had not yet been revoked and replaced by the 2014 Order ".
The matter seems to stall at this point however, we are referred to the case of Post Office v Estuary Radio Ltd [1968] 2 QB 740 in which the Court acknowledged that the 1964 Order should be construed in light of the 1958 Convention.
Judge Davies notes that Article 4 of the 1964 Order contained an article relating to bays which was the same as in the 1958 Convention and UNCLOS/2014 Order. Judge Davies succinctly concludes as follows: " It is not immediately apparent why the provision in the 1958 Convention in relation to the mouth of rivers was not copied in the 1964 Order. However, it is not possible, in my view, to draw any inference that this was the result of some positive choice to exclude the application of such provision. It would make no sense to include the specific provision as to bays…whilst deliberately excluding the (less territorially ambitious) provision in relation to rivers. The far more likely conclusion…was that it was always understood that the Crown asserted a territorial claim in relation to inland rivers up to their mouth, which did not…need to be specifically included in the 1964 Order. "
Following submissions from both parties, Judge Davies concluded that "England" extends to the baseline of the mouth of a tidal river, in line with the 1958 Convention and UNCLOS/2014 Order. As a result, Van Elle's works were construction operations in England and the Construction Act applied.
Implications
On a general level, this judgment enforces the intention of the Courts to vigorously seek to enforce adjudicators' decisions. If parties are concerned whether the Construction Act would apply, they can protect the position by including a contractual right to adjudicate.
Aside from the practical implications, this case is an expertly captained voyage through a " tangle of Acts, OS maps, supporting explanations, Conventions and Orders " that shows how the law winds its way to practical application, much like a river winds its way to the sea.
DAC Beachcroft's Newcastle Team acted for Van Elle in this matter. We understand that the Court of Appeal has recently rejected an application made by Keynvor to appeal the decision.
