Humber Oil Terminals Trustee Ltd v Associated British Ports

Information sought under the Civil Procedure Rules must be relevant to an issue for determination. In an open-market rental valuation, the court considers information that would have been available to the hypothetical negotiating parties. Information about a harbour authority’s operating, maintenance or investment costs is not relevant merely because harbour dues might affect rent. It is insufficient that the hypothetical landlord may possess the information if the hypothetical tenant would not have access to it and there is no evidence that it would influence negotiations. A statutory right to object to harbour dues does not form part of negotiations for an interim rent and does not make otherwise irrelevant cost information disclosable.

Humber Oil Terminals Trustee Ltd was the tenant of an oil jetty at the Port of Immingham under a lease containing an exemption from harbour dues. Associated British Ports sought an interim rent under the Landlord and Tenant Act 1954. Its valuation evidence attributed substantial rental value to the exemption.

HOTT applied for information and disclosure concerning ABP’s costs of operating, maintaining and investing in the port. It relied on CPR r 35.9, Part 18 and Part 31. The central issue was whether that cost information was relevant to the assessment of interim rent or to the hypothetical negotiations concerning harbour dues.

1. The application was refused. Information sought under CPR r 35.9, CPR Part 18 or CPR Part 31 had to be relevant to an issue which the court would determine in fixing the interim rent.
2. The hypothetical tenancy was to contain a provision equivalent to clause 6(a), exempting the tenant from harbour dues. The parties might consider the amount of dues which would otherwise be payable, but there was no necessary connection between those dues and ABP’s costs of operating, maintaining or investing in the port.
3. The court could not infer relevance from common sense or logic. There was no expert evidence that the costs would affect the rental valuation or the likely level of harbour dues. The evidence showed that commercial negotiations concerning harbour dues did not ordinarily rely on cost information and that ABP would not provide it.
4. Under section 31 of the Harbours Act 1964, a user liable to pay harbour dues could object to their level. That statutory right did not assist the hypothetical tenant negotiating rent, which could decline to take the tenancy but could not pursue a section 31 objection within those negotiations. Nor did section 31 require the harbour authority to disclose cost information.
5. Following the principle in Lynall v IRC [1972] AC 680, as applied in Cornwall Coast Country Club v Cardgrange Ltd [1987] 1 EGLR 146, information unavailable in the open market could not affect the hypothetical negotiation. Urban Small Spaces Ltd v Burford Investment Co Ltd [1990] 2 EGLR 120 did not justify disclosure because the information sought here was inadmissible as irrelevant to any issue.
6. The applications under CPR r 35.9, CPR Part 18 and CPR Part 31 were refused.