Roll up, roll up
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The High Court last year considered the principles to be applied by the High Court when considering ‘rolled-up’ hearings. James Maurici KC sets out the key points.
R (on the application of Al-Haq) v Secretary of State for Business and Trade [2025] EWHC 173 (Admin)
One of the most headline-grabbing cases of 2025 concerned a challenge brought by a Palestinian human rights organisation to the decision of the Secretary of State for Business and Trade to license for export military and dual-use goods destined, directly or indirectly, for Israel. Beneath the headlines, however, came a helpful summary of the principles to be applied by the High Court when considering applications for ‘rolled-up’ hearings.
The claim was a procedurally complex one. It was initially filed on 6 December 2023, with a decision refusing permission on the papers following on 19 February 2023. Following a directions hearing in April 2024, Swift J ordered that the renewed application for permission be considered at a rolled-up hearing with a time estimate of 3 days. A further procedural hearing was listed in September 2024. The day before the hearing, the Secretary of State announced the suspension of licences authorising the export of items that might be used in carrying out or facilitating Israeli military operations in Gaza, save for components of the F-35 fighter jet. The amended claim pursued 13 grounds. A further hearing was listed before Chamberlain J for consideration of, inter alia, whether the amended claim should be listed for a rolled-up hearing.
Judgment was handed down on 30 January 2025. On the principal question of whether to order a rolled-up hearing, Chamberlain J held that the court’s task was to balance a number of factors, typically including:
- The importance of a quick, final decision: “judicial review claims are in general dealt with relatively quickly, even without special directions for expedition. However, there may be cases where there are good reasons for the claim to be determined even more quickly. The case for expedition may be particularly strong where the claim raises issues of public importance”.
- Whether a rolled-up hearing would be likely to result in a final decision more quickly than a separate permission stage: “In most cases, permission can be considered on the papers relatively quickly and, if permission is refused, a permission hearing listed relatively quickly after that; by contrast a rolled-up hearing will generally take longer to prepare for and list. If there is a prospect that permission may be refused on all grounds, a separate permission stage may result in a final decision more quickly than a rolled-up hearing. But in some cases, it is apparent at a relatively early stage that there is a reasonable prospect of permission being granted on one or more grounds. A permission stage might result in permission being granted on some points and not others, with the possibility of an appeal …”, giving rise to further delay.
- Whether a rolled-up hearing would be substantially longer than a permission hearing: “In most cases, a permission hearing with a time estimate of 30 minutes or 1 hour will be much less burdensome for the defendant (and will use considerably less of the court's resources) than a rolled-up hearing. However, in some exceptional cases, the difference will be less pronounced. In some cases, it may be obvious that, even if there were to be a separate permission stage, any permission hearing would have to be listed for substantially longer than 30 minutes or 1 hour. In complex cases, permission hearings listed for one day or more are not unknown. This may not be much less than the time estimate for a rolled-up hearing.”
- Whether a rolled-up hearing would impose a greater burden on the defendant, and if so, how much: “In most cases, the burden imposed on a defendant at the permission stage is relatively modest (where summary grounds are sometimes very concise and evidence is not generally expected), whereas that imposed at the substantive stage is greater. But in some cases, particularly those turning on pure points of law or where the matters requiring evidence are relatively limited in scope, the difference between what is required at a rolled-up hearing and what is required at the permission stage may be less pronounced.”
Before the decision in Al-Haq, those arguing for rolled-up claims were reliant on the (brief) commentary in the Administrative Court Guide on this topic. Chamberlain J’s guidance is therefore a welcome intervention, and has already proved instructive in several cases ongoing before the Administrative Court.
James Maurici KC is a barrister at Landmark Chambers.
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