Humber Oil Terminals Trustee Ltd. v Associated British Ports

In proceedings for a new tenancy under the Landlord and Tenant Act 1954, competition-law allegations must be separated from allegations concerning the landlord’s intention under section 30(1)(g). Earlier negotiations for allegedly excessive rent do not, without more, prevent reliance on that ground. A competition objection must identify an abuse that would arise on refusal of a new tenancy, could not be restrained or remedied in separate proceedings, and is not excluded by the relevant factual findings. The court left the substantive legal question open. The strike-out was upheld because the pleading was confused, incomplete and disclosed no properly arguable ground.

HOTT held four leases of the Immingham Oil Terminal from ABP and sought new tenancies under the Landlord and Tenant Act 1954. ABP opposed the applications under section 30(1)(g), relying on its intention to occupy the premises for its own business. HOTT amended its claims to allege abuse of dominance under section 18 of the Competition Act 1998 and Article 102 of the Treaty on the Functioning of the European Union, including excessive rents, inadequate access and use of the statutory opposition ground to acquire business assets. The Chancellor struck out the amended Particulars of Claim under rule 3.4 of the Civil Procedure Rules 1998 and reinstated the originals. The appeal concerned the adequacy of the amended pleading and whether competition law could preclude reliance on section 30(1)(g).

1. The appeals were dismissed. The applications for permission to re-amend the Particulars of Claim and to adduce new evidence were also dismissed. No decision was required on ABP’s respondents’ notices.
2. The Chancellor had not decided that competition claims were always irrelevant to proceedings for a new tenancy under the Landlord and Tenant Act 1954. The strike-out rested on the confused and inadequate pleading, the mixture of present and future allegations, and the failure to plead anti-competitive effect sufficiently.
3. Allegations that ABP had sought excessive rents in earlier negotiations were irrelevant as matters stood. The issue of future rent would arise only if HOTT were entitled to new leases. If the parties could not agree rent, section 34 of the Act required the court to apply the statutory open-market measure, which excluded any ransom element. The court expressed scepticism that competition principles would assist that valuation, but left their possible relevance to the rent-fixing process.
4. The pleading had to distinguish three matters: allegations bearing on the absence of the statutory intention described in Cunliffe v Goodman [1950] 2 KB 237 and applied in Chez Gerard Ltd v Green [1983] EGLR 79; alleged abuse in future access terms, which could be addressed in separate competition proceedings; and a competition-law objection said to preclude refusal of the new tenancy itself.
5. The court did not decide the substantive category-three question. If HOTT wished to raise it, it had to plead an abuse under section 18 of the Competition Act 1998 and Article 102 which would arise if the new leases were refused, could not be prevented or remedied in separate proceedings, and was not precluded by Vos J’s factual findings, subject to appeal. Any such point should be pleaded by Reply.
6. The proposed re-amendment was refused because it introduced a materially different statement of case on appeal and repeated the defects in the amended pleading. The parties were encouraged to manage any remaining issues efficiently in accordance with rule 1.1 of the Civil Procedure Rules 1998.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 36: dismissed the appeals from the Chancellor’s order, refused permission to re-amend and refused the application to adduce new evidence.
• Chancery Division — Sir Andrew Morritt C. ordered on 24 February 2011 that the amended Particulars of Claim in four actions be struck out under rule 3.4 of the Civil Procedure Rules 1998 and that the original Particulars of Claim be reinstated.
• Chancery Division — Vos J later determined the preliminary issue concerning ABP’s intention under section 30(1)(g) in ABP’s favour. HOTT’s appeal from that decision had not been determined.