Trespass – Possession order – Occupation building on claimant’s university campus by protesters – Claimant seeking possession order in respect of whole campus – Whether appropriate to grant possession order – Whether such order preventing effective exercise of protesters’ right of freedom of expression and association under Articles 10 and 11 of European Convention on Human Rights – Claim allowed
In early February 2013, the defendants occupied the third floor of a building on the claimant university’s campus in protest at a decision by the claimant to “privatise” and contract out various services. The claimant tolerated the occupation for a time but matters got out of hand in late March 2013, with occupation of further parts of the campus, damage to property and intimidation of individuals. On an application to the court, the claimants obtained injunctive relief and a possession order in relation to all parts of the campus save the building originally occupied; the hearing in respect of that building was adjourned to the following day to allow the defendants a short additional time to prepare.
At the adjourned hearing, the claimant gave evidence that further demonstrations had occurred the previous day, with further intimidation and property damage, and that re-occupation of other parts of the campus had been prevented only by a police presence. The defendants sought a further adjournment to enable them to gather evidence and put together additional legal submissions. They maintained that their protest was peaceful and contended that the making of a possession order in respect of the occupied building would contravene their right to freedom of expression and association under Articles 10 and 11 of the European Convention on Human Rights. They submitted, relying on the decision in Appleby v United Kingdom (2003) 37 EHRR 38, that possession should be refused since the enforcement of the claimant’s private property rights would prevent any effective exercise of freedom of expression and association such that the essence of the rights would be destroyed.
Held: The claim was allowed.
It was not appropriate to grant a further adjournment to the defendants. The defendants had no arguable defence and there was no realistic prospect that one might be developed if the adjournment were granted. The grant of a possession order would not deprive the defendants of the effective exercise of their freedom of expression and assembly on the facts of the case. There were many alternative means, other than occupation, by which students and protesters were able to express their views, including on the claimant’s premises and within the scope of its conduct of its affairs. If and to the extent that the existing injunction presented any difficulties in pursuing those avenues of expression, which the claimant had accepted were available, then the protesters could approach the claimant to agree a modification of the injunction or could apply back to the court for modification of the order. Accordingly, it could not be said that the defendants would be prevented from any effective exercise of freedom of expression if the possession order were granted; nor could it be said that the essence of their rights of freedom of expression and association had been destroyed.
On a consideration of all the relevant factors, it was right to grant a possession order in the instant case to give effect to the right of the claimant to recover its property. The relevant factors were that: (i) the continuation of the protest, depriving the claimant of its property, would be in plain breach of domestic law; (ii) the location of the occupied building was of limited importance to the defendants, not least because of the alternative means of expression and ways of protest available to them; (iii) the protest had continued for a long time and the claimant was fully entitled at this stage to seek to recover its property; (iv) the protest had caused considerable interference with the rights of others, by completely neutralising the ability of the claimant to use the building for various activities, including as a conference centre, leading to significant loss of income and consequent strain on the university finances, which, if it continued, risked staff job losses. Weighing all those relevant factors, the just and appropriate solution was to refuse further adjournments and order possession: Appleby and City of London Corporation v Samede [2012] EWCA Civ 160; [2012] PLSCS 40 applied.
It was not practically feasible to treat the protests on the campus as being located in, and confined to, discrete areas of the campus, given the evidence that protesters moved between different areas of the campus and that the protest had an overall unity of personnel, purpose and, to some degree, method throughout the campus. The protesters, as part of single protest, had moved between different parts of the campus in pursuit of that protest and there was a sufficient threat that they would continue to do so if not prevented. Accordingly, it was appropriate that the possession order should be granted in relation to the whole campus: University of Essex v Djemal [1980] 1 WLR 1301, Secretary of State for Environment, Food and Rural Affairs v Meier [2009] UKSC 11; [2010] 1 EGLR 169 and University of Sussex v Protesters [2010] 16 EG 106 (CS) applied.
Katharine Holland QC (instructed by Pinsent Masons LLP) appeared for the claimant; Jude Bunting (instructed by Irvine Thanvi Natas LLP) appeared for Katherine Barrie; the other defendants did not appear and were not represented.
Sally Dobson, barrister
University of Sussex v Persons unknown and others
Trespass – Possession order – Occupation building on claimant’s university campus by protesters – Claimant seeking possession order in respect of whole campus – Whether appropriate to grant possession order – Whether such order preventing effective exercise of protesters’ right of freedom of expression and association under Articles 10 and 11 of European Convention on Human Rights – Claim allowedIn early February 2013, the defendants occupied the third floor of a building on the claimant university’s campus in protest at a decision by the claimant to “privatise” and contract out various services. The claimant tolerated the occupation for a time but matters got out of hand in late March 2013, with occupation of further parts of the campus, damage to property and intimidation of individuals. On an application to the court, the claimants obtained injunctive relief and a possession order in relation to all parts of the campus save the building originally occupied; the hearing in respect of that building was adjourned to the following day to allow the defendants a short additional time to prepare.At the adjourned hearing, the claimant gave evidence that further demonstrations had occurred the previous day, with further intimidation and property damage, and that re-occupation of other parts of the campus had been prevented only by a police presence. The defendants sought a further adjournment to enable them to gather evidence and put together additional legal submissions. They maintained that their protest was peaceful and contended that the making of a possession order in respect of the occupied building would contravene their right to freedom of expression and association under Articles 10 and 11 of the European Convention on Human Rights. They submitted, relying on the decision in Appleby v United Kingdom (2003) 37 EHRR 38, that possession should be refused since the enforcement of the claimant’s private property rights would prevent any effective exercise of freedom of expression and association such that the essence of the rights would be destroyed.Held: The claim was allowed. It was not appropriate to grant a further adjournment to the defendants. The defendants had no arguable defence and there was no realistic prospect that one might be developed if the adjournment were granted. The grant of a possession order would not deprive the defendants of the effective exercise of their freedom of expression and assembly on the facts of the case. There were many alternative means, other than occupation, by which students and protesters were able to express their views, including on the claimant’s premises and within the scope of its conduct of its affairs. If and to the extent that the existing injunction presented any difficulties in pursuing those avenues of expression, which the claimant had accepted were available, then the protesters could approach the claimant to agree a modification of the injunction or could apply back to the court for modification of the order. Accordingly, it could not be said that the defendants would be prevented from any effective exercise of freedom of expression if the possession order were granted; nor could it be said that the essence of their rights of freedom of expression and association had been destroyed.On a consideration of all the relevant factors, it was right to grant a possession order in the instant case to give effect to the right of the claimant to recover its property. The relevant factors were that: (i) the continuation of the protest, depriving the claimant of its property, would be in plain breach of domestic law; (ii) the location of the occupied building was of limited importance to the defendants, not least because of the alternative means of expression and ways of protest available to them; (iii) the protest had continued for a long time and the claimant was fully entitled at this stage to seek to recover its property; (iv) the protest had caused considerable interference with the rights of others, by completely neutralising the ability of the claimant to use the building for various activities, including as a conference centre, leading to significant loss of income and consequent strain on the university finances, which, if it continued, risked staff job losses. Weighing all those relevant factors, the just and appropriate solution was to refuse further adjournments and order possession: Appleby and City of London Corporation v Samede [2012] EWCA Civ 160; [2012] PLSCS 40 applied.It was not practically feasible to treat the protests on the campus as being located in, and confined to, discrete areas of the campus, given the evidence that protesters moved between different areas of the campus and that the protest had an overall unity of personnel, purpose and, to some degree, method throughout the campus. The protesters, as part of single protest, had moved between different parts of the campus in pursuit of that protest and there was a sufficient threat that they would continue to do so if not prevented. Accordingly, it was appropriate that the possession order should be granted in relation to the whole campus: University of Essex v Djemal [1980] 1 WLR 1301, Secretary of State for Environment, Food and Rural Affairs v Meier [2009] UKSC 11; [2010] 1 EGLR 169 and University of Sussex v Protesters [2010] 16 EG 106 (CS) applied.Katharine Holland QC (instructed by Pinsent Masons LLP) appeared for the claimant; Jude Bunting (instructed by Irvine Thanvi Natas LLP) appeared for Katherine Barrie; the other defendants did not appear and were not represented.Sally Dobson, barrister
