Gardner Aerospace Holdings Limited & Anor v Antony John Upton

Third-party disclosure under Civil Procedure Rules 1998, Part 31.17 is exceptional. The applicant must show that the documents are likely to support its case or adversely affect another party’s case, and that disclosure is necessary for fair disposal or to save costs. Relevance and necessity remain fact-sensitive, and the court retains a discretion after considering competing public interests.

Where disclosure concerns assessments made for national-security decisions under the National Security and Investment Act 2021, the court should give substantial weight to the executive’s assessment of sensitivity and risk. Even potentially relevant documents should not be disclosed where disclosure would injure the public interest or where partial disclosure would create unfairness or would not materially assist the fair disposal of the claim.

The claimants alleged that the first defendant, a former director and senior officer, had lobbied government and otherwise acted to influence the issue and terms of a call-in notice and Final Order under the National Security and Investment Act 2021. They sought third-party disclosure from the Department for Business and Trade, the Cabinet Office Investment Security Unit and the Ministry of Defence.

The application sought records of meetings, emails, government assessments and correspondence with Members of Parliament. The government respondents were neutral as to two categories, confirmed that no further documents existed for another, and opposed disclosure of assessments on public-interest and national-security grounds. The central issues were whether the disclosure requirements under Senior Courts Act 1981, sections 34 and 35(1), and CPR Part 31.17 were met, and whether disclosure of sensitive assessment material would be injurious to the public interest.

1. The court ordered disclosure of Categories 1 and 4. The records were relevant and necessary for the fair disposal of the claim. The requests were narrowly framed by date and by the identities of the relevant senders and recipients. The absence of objection from the former director and the government’s neutral position were material to the exercise of discretion.
2. No order was made for Category 2 because the claimants no longer pursued it after the government confirmed that it held no responsive documents beyond material already disclosed.
3. Category 3 satisfied the relevance and necessity requirements in principle because the assessments could have illuminated the causation issue. That was insufficient, however, to justify disclosure. Section 35(1) of the Senior Courts Act 1981 prohibited an order where compliance would likely injure the public interest.
4. The assessments were inherently sensitive. They concerned the operation of the statutory national-security regime, including the government’s processes, methodology, evaluative criteria and treatment of representations. The court accepted the executive’s assessment of the risk of harm and found no cogent basis to question it.
5. The court declined to order disclosure of unredacted portions or proposed gist statements. The substantial majority of the documents had been redacted for sensitivity. The remaining material was not shown to satisfy relevance and necessity, and partial disclosure risked unfairness by inviting inferences from the extent of redaction. The court was also not persuaded that it had power to order gist statements under CPR Part 31.17, or that gisting would materially assist if such power existed.
6. The application was therefore dismissed in relation to Category 3. The court emphasised that caution is especially important where disclosure would compromise national security or international relations and where the third party has no reciprocal litigation advantage.