Humber Oil Terminals Trustee Ltd. v Associated British Ports

In litigation under Part 2 of the Landlord and Tenant Act 1954, the court may direct an early trial of a modified preliminary issue concerning the landlord’s intention under section 30(1)(g), even where related competition issues are subject to an outstanding appeal. The court may determine the factual issue first and defer final disposal until the appeal and any consequential proceedings are resolved. The preliminary issue should be framed to permit findings about whether, when and in what circumstances the landlord intends to occupy the premises. Any material change in circumstances before final disposal may be considered at that later stage.

The claimant sought new tenancies of four premises under Part 2 of the Landlord and Tenant Act 1954. The defendant opposed the applications under section 30(1)(g), relying on an intention to occupy the holdings for its business.

The claimant later amended its pleadings to raise competition-law objections to reliance on that ground. The amendments were struck out by the Chancellor, and permission to appeal was subsequently granted. At a pre-trial review, the issue was whether the factual preliminary issue should proceed in the existing July 2011 trial window or be postponed until the appeal was determined.

1. Direction for trial. The court directed that the trial proceed in July 2011 on a modified preliminary issue. The issue was whether the defendant intended to occupy the holding for the purposes, or partly for the purposes, of a business to be carried on by it, and, if so, when and in what circumstances.
2. The competition issues were distinct from the factual inquiry into intention. Since they had been struck out and might only be reinstated following the appeal, they need not be tried with the preliminary issue. The factual trial could therefore proceed without determining whether implementation of the intention would constitute an abuse of a dominant position.
3. The modified issue was workable despite the uncertainty created by the interim continuation provisions. Under sections 29(1), 31(1) and 64 of the Landlord and Tenant Act 1954, the court could determine the factual issue while deferring the final order granting or refusing a new tenancy until the relevant competition issues and appeal had been resolved.
4. If the defendant failed to establish the relevant intention, the court could grant new tenancies. If it succeeded, final disposal would await the outcome of the appeal and any further proceedings. At that stage, either party could raise a material change in the factual position, including a change in the landlord’s intention.
5. Early determination would provide progress and certainty concerning a major area of factual dispute and would avoid the financial prejudice to the landlord caused by postponement. The possibility that witnesses might later need to give further evidence did not outweigh those considerations.

The claims began in the County Court. A District Judge directed trial of the section 30(1)(g) preliminary issue, and the proceedings were later transferred to the High Court. The Chancellor struck out the competition-law amendments. Permission to appeal that decision was subsequently granted by the Court of Appeal. This judgment concerned case management of the pending claims and directed that the modified preliminary issue proceed to trial.