![BL-2023-001625 - [2025] EWHC 2627 (Ch)](https://backend.juristeca.com/files/emisores/logo_O3rEzCI.png){kind=logo}
Introduction
Introduction
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.
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.
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
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.
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.
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:-
Lobbying politicians with a view to the issue of the call-in notice and influencing the terms of the Final Order;
Sending allegedly misleading and prejudicial communications to HMG;
Engaging with potential buyers of the Claimants’ business and encouraging them to lobby HMG about the Final Order;
Concealing relevant communications from his co-directors; and
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.
The Claimants also say that such conduct caused them loss and damage of approximately £7m on the basis that:-
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;
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
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.
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.
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.
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.