FTDI Holding Ltd v Chancellor of the Duchy of Lancaster

Interim relief in public-law proceedings does not require a uniform higher merits threshold or a separate strong prima facie gateway. The court applies the ordinary American Cyanamid Co. v Ethicon Ltd framework, with the public-law context affecting the balance of convenience. Relevant considerations include the prima facie strength of the challenge, the consequences of refusing relief, and the public interest in allowing a public authority to enforce an apparently valid law. In national-security cases, substantial respect is owed to the executive’s assessment of risk and its importance, subject to public-law review. Property interests may make damages inadequate, but national-security detriment cannot be compensated in damages.

FTDI Holding Ltd sought judicial review of a final order made under the National Security and Investment Act 2021, requiring it to dispose of its 80.2% shareholding in Future Technology Devices International Ltd. The order was based on asserted risks concerning the transfer of semiconductor technology and the possible disruption of critical national infrastructure.

The claimant applied for an interim injunction or stay. Following an initial hearing before Chamberlain J, a closed material declaration, and the appointment of special advocates, the Divisional Court heard open and closed evidence. The central issue was whether interim relief should be granted pending an expedited rolled-up hearing of permission and the substantive claim.

1. Application refused. The court refused the claimant’s application for an interim injunction or stay of the Final Order.
2. The agreed starting point was the familiar framework in American Cyanamid Co. v Ethicon Ltd [1975] AC 396: whether there was a serious question to be tried, whether damages were an adequate remedy, and the balance of convenience.
3. There was no uniform higher merits threshold in public-law cases. R v Secretary of State for Transport ex p. Factortame (No. 2) [1991] 1 AC 603 did not impose such a rule. The public-law context operated principally at the balance-of-convenience stage. The court had to weigh the public interest in enforcement, the prima facie strength of the claim, and the gravity of the consequences if relief were refused. The court declined to adopt a more prescriptive test, consistent with Belize Alliance v Department of the Environment of Belize [2003] 1 WLR 2839 and R (Governing Body of X) v Office of Standards in Education, Children’s Services and Skills [2020] EWCA Civ 594.
4. Where national security was in issue, the court retained responsibility for striking the balance but had to show great respect to the executive’s assessment of both the existence of the risk and the weight to be attached to it, subject to rationality and other public-law review. This approach, drawn from Attorney General v BBC [2022] EWHC 826 (QB), Secretary of State for the Home Department v Rehman [2001] UKHL 47 and Begum v Special Immigration Appeals Commission [2021] UKSC 7, was applied to the closed evidence.
5. The court could not, at the interim stage, characterise the asserted national-security risk as irrational or otherwise unlawful. It therefore treated the risk, its significance, and the prolongation of the risk as established for present purposes, while leaving fuller assessment to the rolled-up hearing. Although damages were not wholly adequate for the claimant’s strategic property interest, property interests received some protection through damages, whereas harm to national security was not compensable. The balance therefore fell firmly against interim relief. Expedition meant that the claim might still be determined before an irrevocable sale was required.