Al-Haq, R (on the application of) v Secretary of State for Business and Trade

In judicial review, fresh decisions should generally be challenged by fresh claims. Amendments may exceptionally be permitted where expedition and the public interest justify avoiding new proceedings. A rolled-up hearing is appropriate only in exceptional cases, after weighing the importance of a prompt final decision, likely delay, hearing length and burden on the defendant.

Claims should remain within realistically manageable bounds. Courts should not determine academic or hypothetical issues unless exceptional public-interest considerations apply. Issues requiring extensive investigation of disputed facts are especially unsuitable for determination after the underlying decision has been superseded.

Al-Haq challenged decisions concerning the licensing of military and dual-use exports destined directly or indirectly for Israel. The claim initially challenged decisions made before 2 September 2024. Following the Government’s decision on that date to suspend certain licences, subject to an exemption for F-35 components, the claimant amended its case to challenge the exemption and related licensing decisions.

The court considered whether earlier grounds should proceed, whether grounds 8–12 should be determined at a rolled-up hearing, and whether the newly formulated ground 13 should be included. The central issues were procedural manageability, academicity, linkage between superseded and current decisions, and the appropriate route to an expedited determination.

1. Grounds 1–7. The court refused permission to amend the claim to plead the earlier grounds. Those grounds challenged superseded decisions and raised no useful issue if the claimant accepted the later conclusion that the clear-risk threshold was met. Determining them would require extensive consideration of contested factual evidence concerning events in Gaza and the Government’s earlier assessment processes. The issues were not of the exceptional kind warranting determination under the principles identified in Salem.
2. Linkage. The earlier alleged errors were not necessary to determine the challenges to the F-35 Carve-Out or the decision concerning other licences. The Secretary of State’s pleaded position was that national and international security considerations were overriding and that no further calibration of the risk was required. Whether that position was legally permissible could be decided without assuming what process would be followed if the decision had to be retaken.
3. Grounds 8–12. Permission was granted to amend the claim to plead these grounds as set out in the re-amended statement. They were not academic because success could require the F-35 licensing decision to be revisited. A rolled-up hearing was directed because the issues were of considerable public importance, a separate permission stage risked delay and appeal, the hearing would be realistically manageable if the earlier grounds were excluded, and the additional burden on the defendant was manageable.
4. Ground 13 and further amendments. The newly formulated ground 13 could sensibly be considered at the same rolled-up hearing, except insofar as it incorporated material from grounds 2–7. Further case-management directions were required because the Secretary of State had not yet responded to the latest amendments. The hearing was to be expedited and listed in the Easter Term.