Gardner Aerospace Holdings Limited & Anor v Antony John Upton

Mr Justice Richard Smith Introduction

1. On Friday last week, I heard an application dated 7 July 2025 ( TPD Application ) made by Gardner Aerospace Holdings Limited ( GAH ) and Gardner Group Limited ( Gardner ), both registered in England and Wales (the Claimants ), for an order for third party disclosure under CPR, Part 31.17 against the three Respondents, namely (i) the Department for Business and Trade (ii) the Cabinet Office (Investment Security Unit) ( ISU ) and (iii) the Ministry of Defence (the Respondents ). Representatives of the Defendant, Mr Antony Upton, attended the hearing of the TPD Application as observers but, being neutral as to the outcome, they did not participate.

2. Shortly before the hearing, the Respondents also issued an application of their own dated 6 October 2025 to withhold on public interest immunity grounds one of the categories of documents the subject of the TPD Application ( PII Application ). Since the PII Application envisaged the court’s consideration in the absence of the Claimants of sensitive documents concerning matters of national security, I caused arrangements to be made for the applications to be heard in a courtroom with closed hearing facilities so that, to the extent necessary, the PII aspects could properly be addressed. In the event, I disposed of the TPD Application without the need to consider the PII Application or related sensitive materials.

3. I gave my decision on the TPD Application at the conclusion of the hearing, with my reasons to follow in writing. These are those reasons. Background

4. In 2017, GAH had been acquired by a Chinese company, Ligeance Aerospace Technology Company Limited ( LAT ). Through its subsidiaries (including Gardner), GAH has operated in the aerospace industry.

5. From May 2018, Mr Upton was employed as a director of GAH and Gardner until his employment was terminated in September 2022. For most of that period, he was also CFO of GAH and, for a shorter period between 2021 and 2022, its interim CEO.

6. The claim arises from Mr Upton’s alleged conduct in relation to LAT’s refinancing (by way of debt-for-equity swap) by Sichuan Development Holding Company Limited ( SDH ), a Chinese state-owned investment fund ( Transaction ). The Claimants claim that Mr Upton’s conduct influenced the issue by the UK Government ( HMG ) of what is known as a ‘call-in notice’ and ‘Final Order’ under the National Security and Investment Act 2021 ( NSIA or Act ). In summary, the Claimants say, relevantly to the TPD Application, that Mr Upton breached his duties prior to leaving the employment of GAH and Gardner by:- (i) Lobbying politicians with a view to the issue of the call-in notice and influencing the terms of the Final Order; (ii) Sending allegedly misleading and prejudicial communications to HMG; (iii) Engaging with potential buyers of the Claimants’ business and encouraging them to lobby HMG about the Final Order; (iv) Concealing relevant communications from his co-directors; and (v) Taking these steps to achieve LAT’s divestment of its ownership of GAH by making LAT’s continued shareholding impractical or unattractive so that a new owner would keep him in post as CEO.

7. The Claimants also say that such conduct caused them loss and damage of approximately £7m on the basis that:- (i) The issue of the call-in notice, the length of the call-in period and/ or the terms of the Final Order delayed completion of the Transaction, intended to release vital funding to the Claimants; (ii) As a result, the Claimants had to pay interest on debts and creditor appointed monitor costs and to take out bridging finance. This could all have been avoided if the Transaction had completed earlier; and (iii) Without Mr Upton’s conduct, the terms of the Final Order would have been less onerous or the introduction of certain conditions (and costs) would have been avoided.

8. Mr Upton denies these matters and says that HMG would have issued the call-in notice and Final Order regardless of his alleged conduct. As such, a central causation question arises as to why the relevant Respondents issued the call-in notice and the Final Order either (i) at all (ii) when they did and not sooner and (iii) in the terms they did, not least given the variation to the Final Order made by the Secretary of State following engagement by Mr Upton’s successor.

9. As for the procedural context, Mr Sharkey explains in his second witness statement dated 7 July 2025 in support of the TPD Application that, in December 2024, Mr Upton issued an application seeking the striking out of, and/ or reverse summary judgment on, the Claimants’ claim on the causation issue. That strike-out application alleges a lack of documentary evidence as to the influence of Mr Upton’s conduct on the call-in process. The strike-out application was initially listed for April 2025 but the hearing was adjourned by agreement until September 2025 to allow Extended Disclosure to be completed and for the Claimants to explore potential disclosure from third parties. That strike-out application has still not been heard.

10. The trial is presently listed to take place in November 2025. The pre-trial review was due to take place last Wednesday but, given the significant level of agreement between the parties on trial preparation matters, I adjourned this until Friday as well and, having heard the parties, I made relevant directions then. The statutory scheme

11. The NSIA Explanatory Notes explain that the Act establishes a statutory regime for HMG scrutiny of, and intervention in, investments for the purposes of protecting national security. The Act provides relevantly that:- “1. Call-in notice for national security purposes (1) The Secretary of State may give a notice if the Secretary of State reasonably suspects that:- (a) a trigger event has taken place in relation to a qualifying entity or qualifying asset, and the event has given rise to or may give rise to a risk to national security, or (b) arrangements are in progress or contemplation which, if carried into effect, will result in a trigger event taking place in relation to a qualifying entity or qualifying asset, and the event may give rise to a risk to national security. ……………….. (5) The call-in notice must include a description of the trigger event to which it relates and state the names of the persons to whom the notice is given. ………………..

26. Final orders and final notifications (1) The Secretary of State must, before the end of the assessment period in relation to a call-in notice:- (a) make a final order, or (b) give a final notification to each person to whom the call-in notice was given. ……………….. (3) The Secretary of State may, during the assessment period, make a final order if the Secretary of State:- (a) is satisfied, on the balance of probabilities, that:- (i) a trigger event has taken place or that arrangements are in progress or contemplation which, if carried into effect, will result in a trigger event, and (ii) a risk to national security has arisen from the trigger event or would arise from the trigger event if carried into effect, and (b) reasonably considers that the provisions of the order are necessary and proportionate for the purpose of preventing, remedying or mitigating the risk. ………………..

28. Orders: supplementary (1) This section applies in relation to an interim order and a final order. ……………….. (4) Subject to subsection (5), each order (including each order as varied) or explanatory material accompanying the order must:- ……………….. (c) describe the trigger event and entity or asset concerned, (d) state the reasons for making or varying the order, ………………..”

12. S.49 contains specific provisions with respect to the judicial review of “relevant decisions” taken under the NSIA.

13. There is no dispute that there was a statutory trigger event in this case because the effect of the Transaction was that SDH increased its shareholding in LAT from 25% or less to more than 25%, thereby gaining control of a qualifying entity within the meaning of s.8(2)(a), LAT itself holding (indirectly) Gardner’s entire issued share capital.

14. There is also no dispute that Gardner’s commercial activity meant that it was subject to the statutory scheme and that the Transaction was a “notifiable acquisition”. The Secretary of State was informed of the Transaction by SDH’s solicitors on 3 February 2022.

15. The ISU issued the call-in notice on 16 March 2022. The Final Order

16. The Final Order was issued by the Secretary of State on 10 October 2022 and was addressed to, amongst others, SDH, LAT, GAH and Gardner. The Final Order records the following:- (i) The prior issue of the call-in notice; (ii) The Transaction (as contemplated) being reasonably suspected to result in a trigger event; (iii) The receipt of related representations from SDH, LAT and GAH; (iv) The service of an “Additional Period Notice” and the “Assessment Period” thereby ending on 29 July 2022; (v) The agreement of a voluntary extension of the Assessment Period to 21 October 2022; (vi) The application of the Final Order to SDH, LAT, GAH and Gardner; (vii) The effective date of the Final Order as completion of the Transaction; (viii) The Secretary of State being satisfied, on the balance of probabilities, that:- (a) arrangements were in progress or contemplation which, if carried into effect, would result in a trigger event; and (b) a risk to national security would arise from the trigger event if carried into effect. (ix) The national security risk in this case relating to military and dual-use applications of sensitive information and know-how held by Gardner and the potential that the technology could be used to develop military capabilities; (x) The Secretary of State reasonably considered that the provisions of the Final Order were necessary and proportionate to prevent, reverse or mitigate that risk; (xi) The requirements of the Final Order, including:- (a) The appointment by HMG of an observer to the GAH Board; (b) The prohibition against GAH and Gardner sharing with SDH and LAT information obtained from Gardner or its subsidiaries; (c) The appointment of a Gardner board member with security clearance with responsibility for export control and security matters; (d) Counter-terrorism checks for Gardner affiliated personnel; (e) Access restrictions to Gardner’s protected information; (f) Access restrictions and security requirements at Gardner UK sites; (g) Information security requirements for Gardner systems; (h) Notification requirements for contemplated asset transfers by GAH and Gardner to SDH and LAT (or their affiliates); (i) Final Order compliance certification; and (j) Information provision requirements.

17. The Final Order also explained the procedures for its challenge, including seeking its variation or revocation by the Secretary of State or the judicial review of the decision to impose it. The Claimants have not brought any legal challenge against the Final Order but, following engagement by Mr Upton’s successor, the Secretary of State varied the Final Order on 13 March 2024, making its terms less onerous. The TPD Application – rationale and documents sought

18. I have already explained that disclosure is sought on the TPD Application because the parties have locked horns as to the effect of Mr Upton’s alleged conduct on HMG’s actions with respect to the Claimants and the Transaction. In this regard, the Claimants say that Mr Upton’s intention was to disrupt the Transaction, said to have been expressly acknowledged by him in a number of his communications summarised in Mr Sharkey’s first witness statement.

19. The Claimants also say that it is clear from his communications with others that Mr Upton was lobbying for measures which would ultimately deprive LAT of control of GAH, including proposing remedies requiring LAT to divest control of Gardner as came to be embodied in a letter dated 8 April 2022 sent by Mr Upton to the (former) Department of Business, Energy and Investment Strategy ( BEIS ). In the event, the Claimants say that the Final Order effectively adopted the proposed remedy which stopped short of (immediate) divestment, expressed in the following terms:- “2. Allow LAT to retain 100% shareholding but Gardner to be governed by an independent board (i.e. held separate) with no direct LAT \ SDH control either indefinitely, or for a defined period to allow a divestment process to be completed by a future date”.

20. Despite such documentary material as is available, the Claimants say that they only have partial insight into the precise extent and impact of Mr Upton’s conduct including, for example, documented indications of his communications with MPs and relevant individuals within HMG, albeit without any, or a more complete, record thereof. The Claimants also point to what they describe as Mr Upton’s own unsatisfactory account of his engagement with HMG and how there is a tension between this and some of the disclosed records such that Mr Upton’s evidence appears apt to mislead.

21. Despite these deficiencies, the Claimants say that the Respondents are likely to have documents showing the full extent and impact of Mr Upton’s lobbying efforts, not least given:- (i) The assessments that informed the Secretary of State’s consideration of whether to make a final order, including (i) the ISU’s investment security risk assessment ( ISRA ), assessing the national security risk arising from the triggering event (ii) the remedies assessment, assessing the potential steps which may mitigate the risks identified in the ISRA and (iii) the representations assessment, assessing all the representations received for and on behalf of those affected by the Final Order, including representations as to national security risk and potential remedies (see R (L1T FM Holdings UK Ltd) v Cabinet Office [2024] EWHC 2963 (Admin) at [24]-[28]); (ii) The implementation in the Final Order of remedies which included some suggested by Mr Upton himself; and (iii) The lessening of the burden of the remedies contained in the Final Order following engagement by Mr Upton’s successor and its variation by the Secretary of State.

22. Given the paucity of disclosure by Mr Upton and his own discrepant account, the Claimants say that disclosure from HMG of the following categories of documents is required:- (i) Minutes or records of meetings held between 1 January and 10 October 2022 between Mr Upton and certain officials within relevant HMG departments ( Category 1 ); (ii) E-mails from Mr Upton to those departments in the period 1 January to 10 October 2022 ( Category 2 ); (iii) Assessments (including any ISRA, Remedies Assessment or Representations Assessment) in relation to the Claimants or the Transaction between 3 February and 10 October 2022 or 1 January and 13 March 2024 ( Category 3 ); and (iv) Correspondence between certain specified MPs and HMG between 1 January and 30 April 2022 relating to the Claimants or the Transaction ( Category 4 ). HMG’s position on the TPD Application

23. HMG says that it has adopted a constructive approach to the TPD Application, recognising the public interest in facilitating the fair conduct of disputes involving the private interests engaged by the parties to the claim. To that end, HMG says that it has gone to considerable lengths to search for responsive documents, to cross-check those documents against those disclosed by Mr Upton and to review them, including for potential harm to the public interest were they to be disclosed.

24. Having done so, HMG has confirmed that, subject to the court being satisfied that the conditions for third party disclosure under CPR, Part 31.17 are met, it is neutral as to the disclosure of Categories 1 and 4 . HMG took this stance in the present case in light of Mr Upton having no objection to disclosure. However, it made clear that it might well not do so in future cases given the public interest in the proper flow of information to HMG concerning transactions which might engage the national security considerations with which the NSIA was concerned.

25. HMG has also confirmed that it has no documents responsive to Category 2 beyond those already disclosed by Mr Upton. As such, the Claimants do not press this request.

26. HMG does resist disclosure of Category 3 on the basis that the conditions for third party disclosure under CPR, Part 31.17 are not met and disclosure would likely be injurious to the public interest within the meaning of s.35(1) of the Senior Courts Act 1981 ( SCA ). In addition, HMG made the PII Application, asserting (to not dissimilar effect) that “there is a real risk that disclosure of the PII material would damage the public interest, namely national security and international relations.”

27. As I have said, it was not ultimately necessary (or, in my view, appropriate) for me to consider the PII Application or the related sensitive materials which had not been shared with the Claimants. However, HMG did share with the Claimants (i) the Public Interest Immunity Certificate ( PII Certificate ) and (ii) the “Open Summary of Reasons for the Application for Permission to Withhold Sensitive Material”, documents also considered on the TPD Application. Ms Catherine Little, Chief Operating Officer for the Civil Service and Permanent Secretary to the Cabinet Office, signed the PII Certificate because it relates to documents that were produced under a previous administration. In the PII Certificate, Ms Little explains that:- (i) Reasonable and proportionate searches for documents responsive to Category 3 have been undertaken; (ii) Those documents have been reviewed by officials across HMG, including by the Respondents, and material has been identified which is sensitive; (iii) Advised by officials and counsel, she has formed the view that a PII application should be made in respect of the documents she has personally reviewed and which, on the basis of counsel’s advice, would fall within Category 3; (iv) Having considered the harm likely to be caused by the disclosure of those documents, she has also formed the view that disclosure of any of the sensitive material would pose a real risk of causing serious harm to the UK’s national security and disclosure of some of the material would pose a real risk of causing serious harm to international relations; (v) She has considered whether the documents could be disclosed by way of summary or gist without causing serious harm to the public interest. She is satisfied that it is necessary to redact certain documents in their entirety, with other documents containing redactions necessary to protect the interest of national security and/ or international relations. Where possible, gists have been proposed; (vi) She has concluded that disclosure into any confidentiality ring would be insufficient to mitigate the serious harm to the public interest; (vii) Having been advised that the Claimants seek material which sheds light on whether there was a causal link between Mr Upton’s communications to the ISU and any decision making that followed, she considers it damaging to the public interest to confirm or deny publicly whether such a link existed; and (viii) Proceeding on the basis that the Category 3 material is relevant to the issues in the claim, she goes on to conduct a balancing of the competing public interests, concluding that the real risk of harm to national security and/ or international relations outweighs the public interest in the disclosure of the sensitive material.

28. The “Open Summary of Reasons for the Application for Permission to Withhold Sensitive Material” explains, so far as it is possible, why HMG says that disclosure of the sensitive material would be harmful:- “4. The Respondents consider that damage would be caused to the public interest through the disclosure of the sensitive material in respect of which this application is made. This is because the documents would disclose sensitive material relating to, amongst other things, the methodology and approach adopted by ISU in assessing the national security risk associated with commercial transactions. This would harm the ability of ISU to operate effectively.

5. In particular, the Claimants seek disclosure of assessments, carried out by the relevant government departments in order to inform decisions under the NSIA, as to whether a risk to national security has arisen, and if so what, and what mitigating or preventative steps are required. By its very nature it is therefore material which evaluates harm to the United Kingdom’s national security and is consequently of the utmost sensitivity.

6. Disclosure of sensitive material relating to international relations. For example, views from government departments on the impact that a particular NSIA transaction may have on international relations may damage the UK's relationships with other countries, and so jeopardise future co-operation with them.

7. It is not possible to be more specific in this summary about the sensitive material in relation to which this application for Public Immunity Interest is made, or the precise damage to the public interest that its disclosure would cause, since doing so would be liable to cause the very damage that this application seeks to avoid. ….”

29. I should also say here that HMG explained in its skeleton argument that the sensitive information it had identified encompassed the substantial majority of the documents responsive to Category 3, a point reinforced in oral submission. Legal authority and principles Senior Courts Act 1981 , ss.34 -35

30. The Court’s power to order third party disclosure is contained in s.34 of the SCA which provides that:- “(2) On the application, in accordance with rules of court, of a party to any proceedings the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim:- (a) to disclose whether those documents are in his possession, custody or power; and (b) to produce such of those documents as are in his possession, custody or power to the applicant …..”.

31. S.35(1) SCA 1981 restricts the exercise of that power in the following terms:- “(1) A court shall not make an order under section 33 or 34 if it considers that compliance with the order, if made, would be likely to be injurious to the public interest.” CPR, Part 31.17

32. CPR, Part 31.17 provides that:- “(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings ………….. (3) The court may make an order under this rule only where:- (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.”

33. The conditions for third party disclosure under CPR, Part 31.17 were recently summarised by Murray J in Stokoe Partnership Solicitors v Dechert LLP and another [2023] EWHC 3273 (at [38]) in the following terms:- “i) orders under CPR r 31.17 are the “exception rather than the rule”, as disclosure will not be routinely ordered but rather only where the relevant test is met: Frankson v Home Office [2003] EWCA Civ 655 , [2003] 1 WLR 1952 (CA) at [10]; ii) the applicant does not have to show that a document sought satisfies the Relevance Requirement on the balance of probabilities but rather simply that it “may well” satisfy that requirement: Three Rivers District Council v The Governor and Company of the Bank of England (No 4) [2002] EWCA Civ 1182 , [2003] 1 WLR 210 (CA) at [29], [32], and [33]; iii) where an applicant seeks a class of documents, every document falling within the class must satisfy the test under CPR 31.17(3), however a document may satisfy that test if it provides context for other more obviously relevant documents even if, in isolation, it might not satisfy the test: American Home Products Corporation v Novartis Pharmaceuticals UK Ltd (No 2) [2001] FSR 41 (CA) at [34]; Three Rivers (No 4) at [37]-[38]; iv) the Necessity Requirement is “largely, but not wholly, to follow relevance”, with the court required to consider whether the applicant has or can obtain “similar documentation or information from other sources”: Andrew v News Group Newspapers Ltd [2011] EWHC 734 (Ch) at [73]; v) in relation to the Necessity Requirement, it is important to bear in mind that: a) necessity is a flexible concept, the precise scope of which falls to be determined in light of the facts of the particular case: Sarayiah v Royal and Sun Alliance [2018] EWHC 3437 (Ch) at [36]; and b) the burden is on the applicant to establish the relevant necessity such that the court will not make an order if there is insufficient evidence from which it can evaluate the necessity of disclosure for the fair disposal of the claim: The Commissioner of Police of the Metropolis v Times Newspapers Limited [2011] EWHC 1566 (QB) at [29]-[30]; vi) the order should make clear what documents the respondent has to disclose without reference to the issues in the case, which the third party should not have to understand in order to comply with the order: Constantin Medien AG v Ecclestone [2013] EWHC 2674 (Ch) at [67]); and vii) even if the test under CPR r 31.17(3) is satisfied, the court retains a discretion whether to make an order, in exercising which the court will consider any relevant competing public interests and, if necessary, strike an appropriate balance: Frankson at [13].”

34. HMG also referred to the following observations by Hildyard J in Omers Administration Corp & Ors v Tesco PLC [2019] EWHC 109 (Ch) as to the approach to the necessity requirement under CPR, Part 31.17 (at [79(3)]), namely:- “CPR 31.17’s express test of necessity reflects the fact that third parties, being strangers to the suit, can have no expectation of reciprocal advantage from the usual rule that all relevant documents must be disclosed; and, as the word ‘only’ in CPR 31.17(3) serves to emphasise, ordering disclosure against non-parties is the exception rather than the rule: see Frankson at [10]. CPR 31.17(3) stipulates that not only must the documents sought be likely to “have a potentially relevant bearing on one or more live issues in the case” (per Scott Baker LJ in that paragraph in Frankson ) but also that their disclosure is “necessary” for the defined purposes of disposing fairly of the claim or to save costs. In determining that, the Court must bear in mind that the order sought, being against a non-party, is unusual, and that a degree of caution is accordingly appropriate; and the more so according to the “weight” of the public or private interest in maintaining confidentiality which disclosure would negate.”

35. There was very little difference between the parties on the legal principles relevant to third party disclosure. There was at least a hint of a debate as to the suggested ‘unilateral’ nature of the requirement for such disclosure to support the applicant’s case or to adversely affect the other party’s. However, HMG accepted that this did not preclude third party disclosure being sought where it might yet be supportive of the other party’s case (see Three Rivers (No.4) at [33]). It was also common ground that questions of proportionality and third party interests fell to be considered although the Claimants discerned a potential difference between the parties as to whether this arose at the jurisdictional stage (when necessity was considered) or when considering the exercise of discretion. Potential harm to the public interest

36. HMG took me to a trilogy of UK Supreme Court authorities to explain the role of the court in relation to assessments undertaken by the executive with respect to national security and the public interest. The first, R (Begum) v Special Immigration Appeals Commission [2021] AC 765 , concerned the deprivation of the claimant’s British Citizenship based on the threat she posed to national security. In the context of the court making its own assessment of that threat in preference to the Secretary of State’s, Lord Reed (citing Secretary of State for the Home Department v Rehman [2003] 1 AC 153 per Lord Hoffman at [49]), stated (at [56]) that:- “56 The limitations upon judicial power arose from the principle of the separation of powers, as Lord Hoffmann explained at para 49: “However broad the jurisdiction of a court or tribunal, whether at first instance or on appeal, it is exercising a judicial function and the exercise of that function must recognise the constitutional boundaries between judicial, executive and legislative power.” In particular, as Lord Hoffmann went on to state at para 50, although what was meant by “national security” in the 1971 Act was a question of law (to which the answer was “the security of the United Kingdom and its people”), the question of whether something was in the interests of national security was not a question of law: “It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”

37. Lord Reed went on to explain the limits on the role of the judiciary in this sphere in the following terms (at [60]-[62]):- “60 Turning next to the limitations of the appellate process, Lord Hoffmann explained at para 49 that: “They arise from the need, in matters of judgment and evaluation of evidence, to show proper deference to the primary decision-maker.” He pointed out at para 57, first, that SIAC was not the primary decision-maker, and that it was institutionally less well qualified than the Secretary of State: “Not only is the decision entrusted to the Home Secretary but he also has the advantage of a wide range of advice from people with day-to-day involvement in security matters which the Commission, despite its specialist membership, cannot match.” 61 A further factor was the nature of the decision under appeal, which did not involve a yes or no answer as to whether it was more likely than not that someone had done something, but an evaluation of risk: “In such questions an appellate body traditionally allows a considerable margin to the primary decision-maker. Even if the appellate body prefers a different view, it should not ordinarily interfere with a case in which it considers that the view of the Home Secretary is one which could reasonably be entertained.” Lord Hoffmann acknowledged that this limited approach might not be necessary in relation to every issue which SIAC had to decide. For example, the approach to whether the rights of an appellant under article 3 of the ECHR were likely to be infringed might be very different. 62 Finally, Lord Hoffmann explained at para 62 that a further reason for SIAC to respect the assessment of the Secretary of State was the importance of democratic accountability for decisions on matters of national security: “It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.”

38. U3 v Secretary of State for the Home Department [2025] UKSC 19 was another deprivation of citizenship case. In relation to the assessment of intelligence, Lord Reed identified (at [65]-[67]) two reasons why the court will always attach weight to the assessment of the primary decision-maker. As he said (at [66]): “[i]nstitutionally, the Secretary of State acts on the basis of expert advice, including advice from the Security Service. The assessment of intelligence depends on an expertise which serving intelligence officers possess, but judges do not.” Additional constitutional reasons were identified (at [67]): “[a]s Lord Hoffmann said in Rehman , in a postscript to his speech written after the 9/11 attacks on the United States, “such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process” (para 62).”

39. These principles were considered and applied more recently in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30 (at [126]-[127]) in the context of the Secretary of State’s decisions to designate an individual, and detain the assets of another, for sanctions purposes, measures the claimants suggested were disproportionate. The court stated (at [126]-[127]) that:- “126 In deciding whether the measures are proportionate the court has to consider the balance to be struck between two incommensurate values: the Convention rights engaged and the interests of the community relied on to justify interfering with them: see Lord Carlile , para 34 (Lord Sumption JSC). The court is able to assess for itself the evidence regarding the impact of the measures on Mr Shvidler and his family and on Dalston Projects and Mr Naumenko. The Foreign Secretary and the Transport Secretary do not have any special claim by reference to their constitutional responsibilities and institutional competence to be in a superior position than the court to be able do that. 127 However, the context of these cases is such that the Foreign Secretary and the Transport Secretary do have special constitutional responsibilities, by contrast with those of a court, in relation to steps taken in an effort to respond to and contain Russia’s invasion of Ukraine. They also have superior institutional competence to make the relevant assessment whether the sanctions imposed in these cases may serve some useful purpose in responding to and containing Russia’s actions.”

40. The court went on (at [130]) to confirm the wide margin of appreciation that should be afforded to the relevant Secretaries of State to make judgments about whether the objectives of the measures were sufficiently important to justify the limitation of a fundamental right.

41. In the context of disclosure of material that might be injurious to the public interest, HMG relies on Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC 3724 (and the various authorities cited therein) for the propositions that (i) it will be “rare for a Court especially regarding such issues as national security, to question the view of the Secretary of State that disclosure would be contrary to the public interest” (at [64]) (ii) “the judiciary defers to it on these issues, unless it is acting unlawfully, or, in the context of litigation, the court concludes that the claim by the executive for public interest immunity is not justified. Self evidently, that is not a decision to be taken lightly” (at [33]) and (iii) “the Secretary of State’s view regarding the nature and extent of damage to national security which will flow from disclosure should be accepted unless there are cogent and solid reasons to reject it” (at [57]).

42. Finally, HMG relies on the Court of Appeal decision in Al Rawi and others v Security Service and others [2010] 3 WLR 1069 (at [32]) concerning the ability of the court to order a closed hearing procedure at a civil trial. In relation to the limitations on the ‘right’ to disclosure generally from the perspective of a litigant’s Article 6 rights:- “A litigant’s right to disclosure of documents is not a fundamental right in the same way as the right to know the evidence and argument presented to the judge and the reasons for the judge’s decision. Quite apart from this, if PII, legal professional privilege or “without prejudice” privilege is claimed in respect of a relevant document, the trial process itself is not impugned, as it is still fair: all parties are in the same position in that none of them can rely on the document.”

43. As to the question of the public interest, the Claimants confirmed that they accepted that s.35(1) of the SCA applied in the context of third party disclosure, that they were not asking the court to order disclosure of material that would be injurious to the public interest and that a margin of appreciation was afforded to HMG on questions of the assessment of risk, albeit also emphasising that the public interest extended to the fair conduct of private disputes (as Ms Little too recognised in the PII Certificate). Moreover, the Claimants contended that, where disclosure of the entire document might be injurious to the public interest, the court still has the power to grant third party disclosure with appropriate redaction, in which regard, they discerned a point of difference with HMG. However, HMG went on to accept in submission that the court did have that power. I too accept that redaction can, in principle, be ordered. The Claimants’ arguments on the TPD Application

44. As to the jurisdictional requirements of CPR, Part 31.17 generally, the Claimants submitted that there was extensive evidence of Mr Upton’s lobbying efforts against the Transaction, including through his communications with HMG, MPs and competitor companies. The difficulty for the Claimants was that they did not know precisely how that lobbying influenced the issue of the call-in notice and the terms of the Final Order. The Final Order was not illuminating but was conclusory as to the existence of a national security risk and the need for the imposition of conditions. As the first witness statement of Mr Sharkey in response to the summary judgment explains, the Claimants rely on inference drawn from the available evidence as to Mr Upton’s lobbying efforts and the terms of the Final Order. However, as he and the Particulars of Claim (at [63]) also make clear, such reliance was pending disclosure, direct evidence not being available as to the causative link.

45. The Claimants also referred me to Mr Upton’s Defence (at [51]-[53]) in which he forcefully denied that the Claimants had advanced “any coherent case on causation” and denied that there was any material on which “to justify the inferences sought to be drawn” by the Claimants from the matters relied on. The Claimants say that these matters, reinforced by Mr Upton’s summary judgment application, show that the necessity requirement is satisfied. When there is reasonably available material held by HMG which would avoid the need for the Claimants to rely on inference alone, the disclosure sought is reasonably necessary for the fair resolution of the proceedings.

46. As to the specific categories of document, the Claimants said in relation to Category 1 that, beyond certain e-mails, Mr Upton had not disclosed any records of communications between him and the relevant parts of HMG. However, there was ample evidence, including from some of those e-mails, of oral discussions with HMG. As such, the request is not speculative and the documents sought are not only relevant to Mr Upton’s conduct, the nature of his representations and their impact on HMG, all matters squarely in issue, disclosure is also necessary to afford direct evidence thereof rather than reliance on inference from that which has already been disclosed. In relation to Category 4 , there was again ample evidence that Mr Upton had lobbied MPs with a view to them intervening and, contrary to what he says, it is not credible that their representations to HMG had no impact on the process, not least given the role and status of those MPs and the location of their constituencies. Disclosure of those communications is relevant and necessary for essentially the same reasons. Nor is there any sensitivity. HMG do not oppose disclosure.

47. As noted, the Claimants no longer press Category 2 .

48. As for Category 3 , the Claimants submitted that HMG’s assessments in relation to the Claimants and the Transaction were clearly relevant to the reasons for the call-in notice, the Final Order and any link between these events and Mr Upton’s conduct. Indeed, it would be surprising if the representations made by Mr Upton were not carefully taken into account and analysed and related advice provided to Ministers. The disclosure of that assessment, particularly the Remedies Assessment, is again necessary to provide direct evidence of these matters in circumstances in which the Claimants must presently rely on inference.

49. More pointedly still, relying on the particular circumstances of this case, the Claimants said that this was not an instance of a sensitive UK manufacturing entity being owned by a UK shareholder with a hostile foreign buyer proposing to buy out that entity and HMG stepping in to prevent the transaction from going ahead. This was a much more subtle case in which the relevant companies were already Chinese owned, SDH was already a shareholder in the Chinese parent and the Transaction involved an increase in that shareholding. HMG did not refuse approval but imposed requirements of the same type as some of those proposed by Mr Upton. It would be surprising if there were not advice concerning the range of possible options available to Ministers, including Mr Upton’s suggestions, and the reasons why some of the latter were pursued.

50. As to the suggested sensitivity of these materials, as noted, the Claimants accepted that there are likely to be parts of the assessments which are sensitive such as those which discuss diplomatic or defence matters and that these cannot be disclosed because they would be injurious to the public interest within the meaning of s.35 of the SCA. However, there would likely be other sections of the assessments, such as the Remedies Assessment, which are not sensitive, including as to the matters raised by Mr Upton with HMG (either directly or through others) which sought to put the Transaction in a poor light. The material showing HMG’s consideration of such matters will be highly relevant to the issues to be ventilated at trial and its disclosure will not be damaging.

51. The Claimants suggested that their main difference with HMG in relation to Category 3 was the ‘blanket’ exclusionary approach the latter had adopted on the TPD Application, with anything to do with the assessment process treated as “plainly sensitive” such that any disclosure is said to be liable to injure the public interest. This contrasts with the more forensic approach undertaken by HMG for the PII Application, including redaction and gisting, which should apply equally for the purposes of an application for third party disclosure under CPR, Part 31.17. The court should therefore make a disclosure order, making clear that material which HMG considers to be sensitive can be redacted, albeit with the ability to come back to court in short order if the Claimants consider that any redaction has been undertaken too enthusiastically. Discussion/ disposal

52. For essentially the reasons given by the Claimants, I accept that Categories 1 and 4 are relevant and their disclosure necessary for the fair disposal of the claim. Moreover, they are specifically and narrowly framed, including by reference to date range and the identity of the relevant sender and/ or recipients, such that the requests can be properly understood and responded to in a proportionate manner. As I indicated at the hearing, I could well see that, in other cases, the court might decline third party disclosure of this nature given the importance of the ready flow of information to facilitate the performance of the executive’s function and the need to protect relevant sources, not least in a national security context. PII considerations might also well arise in such circumstances. However, there was no objection in this case by Mr Upton to the disclosure of responsive documents and HMG was neutral about it. For these reasons, I decided on Friday that Categories 1 and 4 should be disclosed .

53. At the hearing, I made no order in relation to Category 2 since this was no longer pressed by the Claimants in light of HMG’s confirmation that it held no responsive materials beyond those already disclosed between the parties.

54. On Friday, I also dismissed the application in relation to Category 3 . I did so for a number of reasons which I now explain.

55. As a preliminary matter, although this request is limited in temporal scope, it did strike me that it was framed somewhat broadly, not least given the Claimants’ narrower focus in submission as to the reasons for the request and the information they seek. However, I did not consider this to be an impediment to consideration of the request to which HMG were able to, and did, fully respond. Moreover, setting aside for one moment the important issue of potential damage to the public interest and the sensitivity of the material sought, I was again satisfied that documents within Category 3 would meet the relevance and necessity requirements for third party disclosure for the reasons explained by the Claimants, not least their ability to shine light more directly onto the causation issue.

56. As to HMG’s response, I accept that it has sought to engage constructively with the Claimants and that it has gone to not inconsiderable lengths to locate and review responsive material. I am also satisfied that, having done so, HMG has taken appropriate and extensive steps to consider the risk to the public interest from the disclosure of the material identified. Those steps include the review of the responsive materials by the most senior official in the Cabinet Office, assisted by counsel and officials. I am also satisfied, including on the basis of the PII Certificate, that this process has been undertaken thoroughly and carefully and that HMG has paid appropriate regard to the fair resolution of private disputes in addition to the other aspects of the public interest engaged here. The court has done likewise.

57. The Claimants were critical of HMG when it said that, being concerned with national security issues, the assessment informing the Secretary of State’s decision to make the Final Order was ‘self-evidently’ sensitive. I reject that criticism. The short title of the Act is the National Security and Investment Act 2021 . The long title is “[a] n Act to make provision for the making of orders in connection with national security risks arising from the acquisition of control over certain types of entities and assets; and for connected purposes.” The Explanatory Notes make clear that the Act establishes a statutory regime for Government scrutiny of, and intervention in, investments for the purposes of protecting national security. A call-in notice is issued where the relevant trigger event may give rise to a risk to national security (s.1(b)). A Final Order can only be issued when the Secretary of State is satisfied on the balance of probabilities that a risk to national security has arisen from the trigger event or would arise if carried into effect (s.26(3)(a)(ii)). Given the national security risks to which such assessments are directed, I accept that they are inherently sensitive in nature. I also found unpersuasive the Claimants’ suggestion that the assessment in this case might be of lesser sensitivity than in other cases where the perceived risk of the relevant transaction to national security was greater.

58. Nor did I find persuasive the Claimants’ related suggestion that disclosure of those parts of the assessment relating to HMG’s consideration of Mr Upton’s proposed requirements for the Transaction, including the Remedies Assessment, would not be damaging to the public interest. HMG’s position was that the extent to which any representations made by Mr Upton or any other person did or did not influence the Respondents’ assessment and the terms of the Final Order was itself highly sensitive. In a similar vein, the Permanent Secretary explained in the PII Certificate that she was constrained from confirming openly whether such a causal link existed on the basis that this too would be damaging to the public interest. At the hearing, HMG explained that such matters are considered to be highly sensitive because, for example, they concern how HMG makes decisions in this national security context, including what factors are considered more important than others, who the assessors are, what they are looking for, how and why, how the information considered weighs in the balance, how the evaluation is undertaken, including whether a transaction should be blocked, approved or mitigating measures imposed, and how any such measures are formulated. The Claimants were sceptical of HMG’s reference in its summary of reasons accompanying the PII Certificate to the sensitivity of the methodology and approach of the ISU in assessing national security risk. However, I accept that the disclosure of documents analysing a specific transaction for national security purposes gives rise to concerns and sensitivities extending beyond the transaction under scrutiny and would include those arising from the revelation of HMG’s processes, approach and methodology. In light of all these matters, and consistent with the authorities cited above as to the weight to be accorded to the executive in making such judgments, I am satisfied that there is no basis for me to question HMG’s assessment of the sensitivity of the Category 3 documents and related risk of harm to the public interest should they be disclosed.

59. I am also not persuaded that I should order the disclosure of those parts of the documents which have been identified on the PII Application as capable of disclosure unredacted or for which gist statements have been proposed. I say that for a number of reasons: first, as HMG has confirmed, the substantial majority of the responsive documents have been redacted on account of their sensitivity; second, it is clear that those parts of the assessments in which the Claimants are most keenly interested in relation to the impact of representations received by HMG have been redacted on account of sensitivity for the reasons indicated above; third, and relatedly, I am not persuaded that the content of the unredacted documents would satisfy the relevance and necessity requirements, the redactions not having been made by reference to the issues arising on the Claimants’ case but by reference to their relative sensitivity; fourth, even if the content of the unredacted documents were relevant, such partial disclosure appeared to me to run the not insignificant risk of unfairness in the substantive proceedings. The Claimants’ suggestion that the parties could seek to draw inferences from the fact of such extensive redaction seemed, if anything, to highlight that risk; fifth, I was not persuaded that the court had the power to order gist statements on an application under CPR, Part 31.17 for third party disclosure (rather than, for example, in the different PII context). However, even if the court did have that power, I was not persuaded that ‘gisting’ could or would perform a meaningful role given the sensitivity of the underlying material withheld and limits of any summaries that might be provided. Again, if anything, this could lead to unfairness. For these reasons, I was unable to say that the disclosure of such unredacted materials or proposed gist statements was conducive to, let alone reasonably necessary for, the fair disposal of the case even if (as seemed highly doubtful) their content might yet be relevant to the issues to which Category 3 is directed.

60. For the above reasons alone, I was satisfied that Category 3 disclosure should be rejected. However, it is appropriate to note in closing that I was reinforced in my view by the circumspection indicated in a number of the authorities as to the court’s approach to third party disclosure. In this case, the need for caution was heightened considerably by the importance of the public interest in maintaining the secrecy which disclosure would negate. The TPD Application pointedly engaged serious concerns as to the damage to the UK’s national security and international relations. In my view, those concerns and the associated burden for third party respondents such as HMG (which enjoys no reciprocal advantage from the relevant proceedings but is subject to a pressing duty to protect the public interest) rather emphasised why an order would not be appropriate under Category 3.