| SPOTLIGHT |
Harry Marriott looks at the key considerations for universities that are considering bringing possession proceedings to deal with protest encampments.
A number of protestors of the actions of the Israeli Defence Force in Palestine have occurred on university campuses both in this jurisdiction, as well as overseas. Such protests give rise to difficult balancing exercises between a university’s right to exercise their private property rights and the rights of others, particularly students to protest about causes that they are passionate about.
The law in relation to possession claims against trespassers is of course fairly settled. A possession claim against a trespasser is a claim for the recovery of land which is allegedly occupied only by persons who are on the land without the consent of anyone entitled to possession of the land (Civil Procedure Rule 55.1(b)). Once a claim has been issued, at a hearing (or an adjourned hearing) the Court may either decide the claim or give case management directions (Civil Procedure Rule 55.8(1)). It is stated at Civil Procedure Rule 55.8(2) that:
“Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions … will include the allocation of the claim to a track or directions to enable it to be allocated.”
In determining whether to make a summary possession order at such a hearing, the relevant test to be applied is the test to be applied to the grant of summary judgment under Civil Procedure Rules 24 (Global 100 Limited v Maria Laleva [2021] EWCA Civ 1835). A summary possession order may therefore be made if there is no real prospect of successfully defending the claim and there is no other compelling reason why the claim should be disposed of at trial.
The procedure at Part 55 of the Civil Procedure Rules has been used on a number of occasions by universities to obtain summary possession orders against students taking part in protest encampments on their land (for example, University of Essex v Djemal [1980] 1 WLR 1301).
Two recent judgments from Mr Justice Johnson give important guidance on how universities balance their private property rights with the rights of others to protest: University of Birmingham v Persons Unknown and Ali [2024] EWHC 1770 (KB) and University of Nottingham v Butterworth and Persons Unknown [2024] EWHC 1771 (KB).
Both cases arise from similar facts; protestors forming camps on communal university land. Both universities sought possession orders on the basis that such protestors were trespassers and accordingly sought that summary orders for possession should be made under Part 55 of the Civil Procedure Rules.
University of Birmingham v Persons Unknown and Ali [2024] EWHC 1770 (KB)
The University of Birmingham is the registered owner of the land at its Edgbaston campus. Part of the same includes “The Green Heart”, an area of land in the heart of the campus that is used by students and the University to host different events (including the marquee for graduation celebrations), and “Chancellor’s Court”, a green space near the Law Faculty.
The University has a Code of Practice on Freedom of Speech (“the Code”) which is incorporated into each student’s contract with the University. Whilst the Code recognises the right to protest, it requires the organiser of an event to comply with its prescribed procedure that includes notifying the University of the event. The Code states that the duty to promote and protect freedom of speech means that the starting point for an event is that it should go ahead, but that a risk assessment should be completed which includes the identification of steps that can be taken to ensure that lawful speech is protected.
Since October 2023, a number of requests had been made under the Code for “Pro-Palestinian events” to take place at the University; permission was granted every time, albeit on occasions conditions were imposed.
In the early hours of 9 May 2024, a protest camp commenced at the Green Heart. No permission had been sought for the same in accordance with the Code. The camp initially involved approximately 15 people, but soon grew. The individuals concealed their identity by wearing masks. Those present were served with notices entitled “notice to quit” which stated that the University had not given permission for the protest, that their occupation amounted to trespass and that the University required them to leave immediately.
On 27 May 2024, the University's Security Services became aware that some of the tents at the Green Heart had been moved to Chancellor's Court. By 5:38am on 27 May 2024, there were 53 tents on the land on the Green Heart, and a further 27 tents on Chancellor's Court. The encampment posted their intentions on Instagram as follows: “Our expansion to the Chancellor's Court is not merely a symbolic gesture. It signifies our unwavering commitment to disrupt the University's routine operations until our demands are met.”
There was some suggestion that a number of incidents had occurred involving individuals in occupation at the two protest camps, including that red paint had been sprayed on one of the University’s buildings. However, these facts were disputed. As this was a summary application, with no oral evidence being heard to determine the disputed accounts, the Court proceeded when hearing this matter on 4 July 2024 on the basis that “the camp has been (at least largely) peaceful and has not involved any actual or threatened violence”.
In early June 2024, the University’s executive board met and made the decision to seek a possession order. Evidence was given on behalf of the University that the decision to seek possession was on the basis that the camp was unauthorised; amounted to trespass; was interfering with the University’s activities; and was having a negative impact on other members of the University community. The possession claim was then issued against persons unknown, with Ms Ali being the only occupier that made her identity known and responded to the proceedings.
At the first possession hearing, the Court made an immediate possession order in respect of Chancellor’s Court (on the basis that the camp had been associated with unlawful activity) but adjourned the claim in respect of the Green Heart.
In response to the possession claim, Ms Ali advanced four defences that needed to be considered for the purposes of a summary possession order:
(i) Discrimination contrary to sections 13 and 91 of the Equality Act 2010
In essence, Ms Ali argued that the claim had been brought on the grounds of her philosophical beliefs in support of Palestine, and that the University had directly discriminated against her, contrary to sections 13 and 91 of the Equality Act 2010.
It appears that this is the first time that an argument of this nature has been raised in defence of a possession claim brought in respect of a protest camp. If successful, it had the scope to have huge implications for landowners seeking to recover possession of land.
There was dispute between the parties as to if Ms Ali has a belief that is protected by the Equality Act 2010. However, the Court considered that this issue was better suited for resolution following oral evidence and so did not determine the issue for the purposes of this summary hearing. Instead, the Court was content to assume that there was a real prospect of Ms Ali establishing that she has a relevant philosophical belief, amounting to a protected characteristic.
However, the Court considered that there was no evidence that the decision to terminate any licence, and to bring these proceedings, was in anyway connected to the protestor’s beliefs. The Court noted that the minutes of the meeting where the decision was made to seek possession were clear that it had not been motivated by the protestor’s beliefs. Rather, the minutes were clear that the decision had been motivated by the unauthorised nature of the camp and the disruption that it created. The same decision would have been made if the encampment related to any other cause.
(ii) Breach of the public sector equality duty
The Court considered that the University did have regard to the public sector equality duty. It noted that:
“The relevant underlying policy is the Code. The public sector equality duty is explicitly referenced in the Code, and not simply in a “tick box” manner. The substantive content of the Code indicates a real commitment to structured decision-making on requests to hold events on campus. It does so in a way that is designed to ensure freedom of speech and to accommodate those who hold different, challenging, and opposing views and beliefs.”
The University had held hundreds of diverse events each year and only imposed conditions in a small proportion of cases. The Court stated that when conditions had been imposed “it appears from the evidence that that has been to enhance, promote and protect freedom of speech, rather than in any way to undermine the expression of opinion or manifestation of belief”. The University had also not immediately sought possession and had expressed a commitment to work with organisers of the camp to enable them to continue to protest. It was stated that “all of this demonstrates that throughout its decision-making process the University practically and substantively had regard to its public sector equality duty”.
(iii) Breach of the statutory duty to ensure freedom of speech for university students
For the purposes of the duty at section 43(1) of the Education (No 2) Act 1986, the Court noted that the Code achieves its intended effect and therefore the University had taken such steps as are reasonably practicable to ensure that freedom of speech is secured.
The Court considered that the decision to seek a summary possession order, where the defendants had decided not to act in accordance with the Code, does not amount to a breach of subsection (1).
For the purposes of subsection (2), the Court considered that the University was not seeking to deny the protestors the use of the Green Hart as a consequence of their beliefs or their objectives. As was dealt with in the discrimination aspect of the claim, the aims of seeking possession were found to be entirely distinct from such.
(iv) Breach of rights to freedom of expression and freedom of assembly
There was some dispute between the parties as whether Articles 9, 10 and 11 of the European Convention on Human Rights was being interfered with by the seeking of possession. The Court considered that it did not need to resolve this point and would be inappropriate to do so in the summary procedure, where disclosure had not taken place and evidence had not been heard. The Court was therefore prepared to proceed on the basis of the assumption that the decision to make a possession order, and the making of an order, do potentially interfere with Ms Ali’s rights under Articles 9, 10 and 11 of the European Convention on Human Rights.
The Court was, however, prepared to find that the decision to terminate the licence, seek possession and the making of a possession order was a proportionate interference with Ms Ali’s rights. It was noted that the law gives strong protection to the right of a landowner to possess its own land and that has been consistently recognised as being of sufficient importance to justify the interference with the qualified Convention rights of students who are seeking to trespass on university premises. The Court also considered that “there is no measure that is less intrusive of the defendants’ rights that could achieve the legitimate aim of restoring the land to the University”. It was also noted that there were many ways in which the occupiers could exercise their convention rights other than the action it had. No good reason was advanced for the failure to follow the Code, and engage with the University, before the creation of the camp. The Court was rather definitive in its conclusions on this aspect of the defence, with Mr Justice Johnson stating:
“… the severity of the impact on Ms Ali’s rights does not (by a significant margin) come anywhere close to outweighing the importance of the objective of the University being able to regain possession of its own land. This is a conclusion that can comfortably be reached on a summary application.”
The Court therefore considered that there was no real prospect of successfully defending the claim. There was also no other compelling reason as to why the matter should proceed to a trial. A summary possession order was therefore made.
Scope of Possession Order
There was some discussion about the scope of the land in which the possession order should be made; if the possession order was limited to a small area of land, there was a risk that the camp could simply move to another part of the campus. The Court noted that “[i]n these circumstances, the authorities recognise that it is justified to make a summary possession order not just in respect of the occupied land, but also other land belonging to the University”. Such an approach was therefore taken here.
The possession order made in favour of the University of Birmingham therefore extended to the whole of the Edgbaston Campus as well as its Selly Oak Campus and the University’s Exchange Building in the city centre.
University of Nottingham v Butterworth and Persons Unknown [2024] EWHC 1771 (KB)
The facts of this matter were remarkably similar to those in the case of University of Birmingham v Persons Unknown and Ali. On 10 May 2024, a camp was erected outside of the University’s Advanced Manufacturing Building. Mx. Butterworth was one of the protestors and the only protestor who took part in the possession proceedings.
The University of Nottingham also had a Code of Practice that deals with activities on its premises (“the Code”). This states that, so far as is reasonably practicable, no premises of the University shall be denied to anyone on any grounds connected with the beliefs or views of that person. The Code also requires notice to be given to the University of events and that the University may impose conditions on any event that are reasonably required to fulfil the University’s responsibility concerning the protection of free speech within the law. No permission had been sought for the camp in this case, as was required by the Code, and no explanation for such was provided.
At the first hearing, the Court divided the “persons unknown” defendants into two categories of defendant (Students/Staff and Non-Students/Staff, with descriptions to identify them) and made a limited possession order against “Non-Students/Staff”, adjourning the remainder of the claim. Mx. Butterworth subsequently filed a defence.
The defence in this case was slightly less expansive that in the case of University of Birmingham v Persons Unknown and Ali. In this case, it was ultimately agreed that the protestors were in the occupation of the land, that any licence they had to use the land has been terminated. The Court was therefore tasked with question of whether the decision of the University to terminate the protestors licence to use the land, and to seek possession, was unlawful as:
(i) The public law defence
It was alleged that the University had failed to comply with the Code as it did not engage with protestors. The Court dismissed this argument. The Court noted that the protestors did not comply with the Code and give notice to the University of the proposed encampment. The framework within which engagement takes place was therefore not triggered. The Court considered that there was no evidence that the Code had been breached; there was no evidence that the University had sought to deny Mx Butterworth the use of its land as a consequence of Mx Butterworth’s beliefs or views).
The evidence showed that the University had sought possession of its land in cases concerning the expression of different views. The Court considered that the evidence clearly suggested that the University objected to the appropriation, and associated disruption, of its land rather than the beliefs and views of the protestors. Accordingly, this aspect of the defence was deemed to have no real prospect of success.
(ii) The human rights defence
The Court adopted a similar approach to that which it had in Birmingham v Persons Unknown and Ali, with the critical question to be determined being whether the severity of the effect on the protestors of terminating any licence and seeking possession outweighed the importance of that objective. The Court noted that the protestors had not complied with the Code; did not give advanced notice of their camp; and that there were many other ways that they could lawfully exercise their Convention rights.
The Court considered that in “… contrast, the most appropriate (and least intrusive) way in which the University can vindicate its own legal rights is by these proceedings”. Accordingly, the human rights defence was deemed to have no real prospect of success.
Given that there was also considered to be no other compelling reason why the claim should go to trial, a summary possession order was also made in this case. Again, the Court was prepared to make the possession order in respect of the entire campus and not just the site of the camp.
Claims against Persons Unknown
As noted above, the Court at an earlier hearing had divided the persons unknown into two categories with descriptions, applying the rationale now adopted in injunction claims against persons unknown (Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303). Mr Justice Johnson accepted the University’s argument that this was not the correct approach in this case as possession orders operate ‘in rem’ (against the land).
The Court therefore confirmed that there is no need to draw a distinction between different categories of “persons unknown” in possession claims. They can instead be described, simply and compositely, as “persons unknown” as required by CPR 55.3(4).
Comment
The two judgments of Mr Justice Johnson provide essential guidance for universities, and landowners more generally, regarding the key concepts and issues that arise in cases of this nature. Of course, in any democratic society, the importance of the right to protest cannot be understated. However, how this is balanced with private property rights, and the need to avoid disruption, gives rise to a number of important questions.
The judgments serve as a useful reminder that when seeking summary possession orders, there are certain questions that any Court will be reluctant to determine in a process that involves limited documents and no oral evidence having been heard. Those representing landowners seeking possession will be well served to remember the same.
In such circumstances, in order to establish that arguments in a defence have no real prospect of success, landowners may have to ensure that their arguments are not predicated solely on persuading a Court on questions that are based in dispute of fact. For example, whilst the Court in these cases did not deal with the question of whether the belief that formed the basis of these protestors were protected by the European Convention on Human Rights, it was prepared to find that there was no connection between these beliefs and the decision to seek possession.
The Nottingham judgment makes clear that for arguments of discrimination to succeed, the need to establish a causative link between the possession proceedings and a protected characteristic (whether that be beliefs, views or otherwise) is plain. If a case were to appear before the Courts where a university’s decision to seek possession was based on a disagreement with the views held by those who occupied its land, rather than a desire to avoid disruption an vindicate its property rights, the outcome may be very different.
As matters of practicalities, the utility in decision makers properly recording the reasons for their conclusions has yet again been demonstrated.
Insofar as the scope of the possession order is concerned, Universities will no doubt be grateful of the reassurance that the Courts are prepared to support the making of a possession order in respect of all of their land, rather than simply where the protestors are currently camped, so as to avoid the situation where trespassers simply move their camp after the making of a possession order, where this is justified on the facts of the case.
Procedurally, the judgment in the Nottingham case is important as it confirms that it is permissible to issue claims for possession against unknown occupiers simply against “persons unknown”, as required by CPR 55.3(4) (in addition to any named defendants). It is therefore not necessary to define persons unknown by way of descriptions as with injunction claims. This makes sense as the nature of a possession order is that it will be enforced in respect of the land, as opposed to an injunction which is personal remedy.
It remains to be seen if more universities will seek possession orders in similar circumstances having been given confidence by these decisions.
Harry Marriott is a barrister at St Philips Chambers.
Michelle Caney of St Philips Chambers acted on behalf of The University of Birmingham and The University of Nottingham, initially as sole Counsel and subsequently led by Katharine Holland KC. Michelle was instructed by Martin Edwards and Dannielle Long of Shakespeare Martineau LLP.
The judgment in The University of Birmingham v (1) Persons Unknown and (2) Mariyah Ali [2024] EWHC 1770 (KB) is available here.
The judgment in The University of Nottingham v (1) Butterworth and (2) Persons Unknown [2024] EWHC 1771 (KB) is available here.
