Louise Clark considers two recent decisions in which the court had to balance the rights of protesters against those of landowners.
Key points
- The test for a summary possession order is whether there is a real prospect of successfully defending the claim or other compelling reason why the claim should go to trial
- Disregarding a framework designed to protect freedom of expression converts a licence into a trespass.
In University of Birmingham v Persons Unknown and another [2024] EWHC 1770 (KB) and University of Nottingham v Butterworth and others [2024] EWHC 1771 (KB) the High Court has determined claims by universities for summary possession of land against student protest groups occupying their land.
Background
The cases concerned student protests by encampments on the campuses of the Universities of Birmingham and Nottingham. The protests were mainly in support of Palestine and against Israel and aimed to persuade the universities to disinvest from and cease to use the services of companies which the protesters believed directly or indirectly supported Israel.
In each case, in compliance with its obligations under section 43 of the Education (No 2) Act 1986, the university had a code of practice on free speech which committed to protect and promote freedom of speech and accommodate those with conflicting views and beliefs.
The code, which was incorporated in every student’s contract with each university, required all events or meetings on university premises to follow a procedure. Notice had to be given to a university official who would carry out a risk assessment and decide whether the event should proceed and, if so, what conditions should be imposed.
In neither case did the protesters seek permission for the protest under the relevant code. This effectively converted the students’ rights by licence to be on university land and to use it in the normal course of their student life into a trespass (Queen Mary University of London v LSY and others [2024] EWHC 2386 (Ch)).
Procedure
The universities brought claims for possession under Part 55 of the Civil Procedure Rules on grounds that the occupation was without consent.
The test for a summary possession order is essentially the same as the test for summary judgment under CPR Part 24 (Global 100 Ltd v Laleva [2021] EWCA Civ 1835; [2022] EGLR 2: is the claim genuinely disputed on substantial grounds and is there any other compelling reason why the claim should be disposed of at trial?
It was undisputed that the universities owned the land occupied by the protesters, that the protesters were in occupation of it, or that the universities had terminated by notice any licence the protesters had to occupy the land. Consequently, the universities were entitled to an order for possession of the land subject to any defence the named defendants might have.
Defences
The protesters argued that the decisions to terminate the licences were unlawful and, specifically:
(i) Birmingham: discrimination on the grounds of belief, contrary to sections 13 and 91 of the Equality Act 2010.
The court assumed for the purpose of the claim that named defendant Mariyah Ali’s philosophical beliefs in support of Palestine were protected by the 2010 Act. However, there was no evidence that the university’s decision to terminate her licence and bring possession proceedings was motivated by her beliefs. Minutes of meetings showed that the motivation was the unauthorised nature of the camp and the disruption it caused.
(ii) Both: breach of the public sector equality duty in section 149 of the 2010 Act.
Each university had had regard to its public sector equality duty, explicitly referenced in its code, which set out a structured framework to engage with those seeking to put on events. There was no evidence of breach by either university, although each of the named defendants were themselves in breach having failed to comply with the code.
(iii) Both: breach of the duty to ensure freedom of speech for university students, contrary to section 43 of the 1986 Act.
Each code was designed to ensure freedom of speech within the law for the university’s members, students and employees. The evidence showed they achieved their intended effect. Neither defendant identified any arguable basis on which the university had failed to comply with the provisions.
(iv) Both: breach of rights to freedom of expression and assembly contrary to section 6 of the Human Rights Act 1988 and articles 9-11 of the European Convention on Human Rights.
The court assumed for the purpose of the claim that seeking possession did interfere with Article 9-11 rights. However, a landowner’s right to possess its own land has been consistently recognised as being of sufficient importance to justify interference with the qualified convention rights of students seeking to trespass on university premises.
The qualifications to the articles – that the interference was prescribed by law, necessary for the protection of the rights of others and was proportionate – were all satisfied. The proceedings were the most appropriate way in which the universities could vindicate their legal rights.
By disregarding the code, the protesters ceased to be licensees and became trespassers. There were other ways in which they could exercise their convention rights without usurping land belonging to others.
Conclusion
In each case the court was satisfied that there was no real prospect of successfully defending the claim or any other compelling reason as to why the matters should proceed to trial.
The court was also willing to make summary orders for possession extending to all other land belonging to the universities, not just the land occupied, to avoid the risk that the camp could simply move to another part of the campus.
The judgments contain key guidance on these types of claims, for landowners, protesters and practitioners alike. They also underline that the importance of protest needs to be balanced with private property rights and compliance with contractual terms.
Louise Clark is a property law consultant and mediator
