Roll up roll up? Human rights group’s challenge to Israeli arms supply proceeds at speed
14 May 2025
Chamberlain J has provided new guidance on when the court may order a rolled-up hearing. The procedural point arose in the context of an ongoing piece of strategic litigation, and resulted in an interlocutory judgment in R (Al-Haq) v SSBT [2025] EWHC 173 (Admin).
Al-Haq is an independent Palestinian human rights organisation. It brought a judicial review claim to challenge various decisions of the UK government in the licensing of exports of military and dual-use goods destined for Israel for potential use in Gaza. The decisions were taken by the Secretary of State for Business and Trade. Oxfam, Amnesty International and Human Rights Watch were granted permission to intervene.
Rolled-up hearings
Typically, judicial review is a two-stage procedure. If a claim passes the permission stage, it will be considered at a substantive hearing. The permission stage shields defendants from the burden of having to respond to claims that are not reasonably arguable: §34. Rigorous scrutiny of claims at that stage enables the court and defendants to focus their limited resources.
The Administrative Court Judicial Review Guide 2024 (“the Guide”) sets out at §9.2.1.5 that a rolled-up hearing occurs when:
“[t]he judge has made no determination on the application for permission. Instead the application for permission [is] considered in Court with the substantive hearing to follow immediately if permission is granted. At the rolled-up hearing, the judge is likely to hear argument on permission and the substance together, and give a single judgment, but the procedure adopted at the hearing is a matter for the judge.”
The Guide is silent on what factors are relevant to determining whether a case is suitable for-rolling up. Chamberlain J provides some guidance for parties and the court.
The factors
In determining whether to hold a rolled-up hearing, there are four factors which the court seeks to balance (see §35):
- First, the importance of a quick, final decision. JR claims are typically dealt with relatively quickly in any event, but there can be good reasons to further expedite a claim. One factor is where the claim raises issues of public importance. Vindication of the rule of law may require a quick and final determination.
- Second, is a rolled-up hearing likely to result in a final decision more quickly? Compared to making a permission decision, whether on the papers or with a hearing, typically preparing and listing a rolled-up hearing will take more time. A separate permission stage may expedite a final decision. On the other hand, a permission stage can result in only some points being heard substantively. This raises the possibility of an appeal before a substantive hearing, which could be complex and lengthy.
- Third, would a rolled-up hearing be substantially longer than a permission hearing? In most cases, a permission hearing is estimated to take 30 minutes or 1 hour. This will generally be less burdensome for the parties and the court than a rolled-up hearing. In some exceptional cases, the difference will be less pronounced.
- Fourth, would a rolled-up hearing impose a greater burden on the defendant? If so, how much greater? The burden at permission stage is generally modest (where summary grounds can be concise and evidence is not generally expected). In contrast, the burden imposed at the substantive stage is normally greater. Clearly some cases may require similar burdens between permission and final hearing, such as where they turn on pure points of law.
The facts of the case and application to the four factors
The case has a complex procedural background.
For the purpose of this post, it is sufficient to note that between the claim being filed on 6 December 2023 and the directions hearing held by Chamberlain J on 18 November 2024, the Claimant added additional grounds to its pleadings. To do so it had amended its grounds (served 16 August 2024). It sought permission to re-amend its grounds (served 23 October 2024). Between the hearing and judgment, it sought to re-re-amend.
On 4 July 2024 there was a change of UK government. On 2 September 2024, the government suspended licences authorising the export of items that might be used in Israeli military operations, except components of the F-35 fighter jet (“the F-35 carve out”).
At a directions hearing, Chamberlain J considered 13 grounds advanced by the Claimant. Grounds 1-7 related to decisions made prior to 2 September 2024. Grounds 8-12 were challenges to the F-35 carve out. Ground 13 challenged a decision to not suspend further licences on 2 September 2024.
Grounds 1-7 related to decisions taken by the previous government and which had substantively been reversed: §§41-50. Chamberlain J refused permission to re-amend to enable pleading grounds 1-7: §50.
The F35 carve out decision
Grounds 8-12 related to a decision of the present government. They were not academic and would need to be determined: §51. In identifying the procedural route to do so, Chamberlain J applied the four factors he had earlier identified to determine whether a rolled-up hearing would be suitable. At §52 he noted that:
- The F-35 carve out was one of considerable public importance. There was a powerful public interest in a quick and final determination of its legality.
- In all the circumstances, a separate permission stage would be likely to delay a final authoritative determination of the issues in the case. The issue was one of justiciability. It would be necessary to consider the substance of the international law relied on. There was a real prospect that a court considering this issue at the permission stage would regard one or more of grounds 8-12 as arguable. If permission was refused on one or more grounds, there was the real prospect of an appeal.
- A permission hearing on grounds 8-12 would be likely to take at least a day given the need to consider case law on justiciability, which was complex and extensive. A rolled-up hearing on those grounds would take 3 or 4 days. This was not substantially longer.
- The difference in burden for the Defendant may not be very substantial. The points in issue are likely to be legal ones. The Secretary of State’s case on those points is fully set out already. Even if some further evidence is required, the additional burden of a rolled-up hearing would be manageable.
Accordingly, Chamberlain J granted permission to amend grounds 8-12. He directed that there would be a rolled-up hearing of the claim for those grounds. With respect to Ground 13, he noted that the Claimant’s re-re-amended Statement of Facts and Grounds was a substantive pleading made for the first time. The Secretary of State had not had the opportunity to address it substantively. It would be procedurally convenient to consider it too at the rolled-up hearing.
Comment
Time can be of the essence in strategic litigaiton. Parties considering whether to propose or oppose rolling-up directions will need to apply the guidance provided by Chamberlain J to their submissions. Both parties will need to consider whether to frame the challenge as being of public importance. It seems likely the court will need to consider how stringent a test ‘public importance’ is.
The rolled-up hearing in Al-Haq is listed in the Divisional Court on 13-16 May 2025 before Lord Justice Males and Mrs Justice Steyn.
Leo Kirby is a pupil barrister at 1 Crown Office Row Chambers.
