A summary possession order can be made if there is no real prospect of successfully defending the claim and no other compelling reason why the claim should go to trial.
The court has considered this test in two cases: 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 cases concerned encampments by students on the campuses of the University of Birmingham and the University of Nottingham, the proprietors of the occupied areas. The campers were opposed to the war in Gaza and concerned about the universities’ investment strategies. Camps were established on university land and demands made. In each case, 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 claims for possession against the campers were sought under CPR Part 55. The test for a summary possession order is the same at that applying to summary judgment: is there a real prospect of successfully defending the claim and any other compelling reason why the claim should be disposed of at trial?
In both cases, the university was entitled to an order for possession of the land subject to any defence the named defendants might have. Those defences and the court’s decisions on them were:
- Birmingham: discrimination on the grounds of belief, contrary to sections 13 and 91 of the Equality Act 2010. There was no evidence that the university’s action was motivated by the defendant’s belief. Minutes of meetings showed that the motivation was the unauthorised nature of the camp and the disruption it caused.
- Both: failure to comply with the public sector equality duty in section 149 of the 2010 Act. In each case, the university had regard to its public sector equality duty. The codes of practice set out a structured framework to engage with those seeking to put on events. There was no evidence of breach by either university, although both named defendants were themselves in breach.
- Both: breach of the duty to ensure freedom of speech for university students, contrary to section 43 of the Education (No 2) Act 1986. Each code was designed to ensure freedom of speech within the law for the university’s members, students and employees. The evidence showed that they achieved their intended effect. Neither defendant identified any arguable basis on which the university had failed to comply with the provisions.
- Both: breach of rights to freedom of expression and freedom of assembly contrary to section 6 of the Human Rights Act 1998 and articles 10 and 11 of the European Convention on Human Rights. The universities’ decision to terminate any licence and seek summary possession was not unlawful on any public law ground. The action was proportionate and there were other ways in which the defendants could exercise their convention rights without usurping land belonging to others.
In neither case was there a compelling reason for the case to go to trial. The court made summary orders for possession for the whole campus in each case.
Louise Clark is a property law consultant and mediator
