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Mr Justice Johnson has made two summary possession orders against protest encampments at the University of Birmingham and the University of Nottingham, following two one-day hearings on 4 July 2024 (University of Birmingham v Persons Unknown and Mariyah Ali [2024] EWHC 1770 (KB)) and 5 July 2024 (University of Nottingham v Butterworth and Persons Unknown [2024] EWHC 1771 (KB)).
It was held that both Universities objected to the appropriation of their land and the associated disruption, and not the beliefs held by those in the encampments.
These judgments will be welcomed by other universities contemplating or in the middle of possession proceedings against similar student encampments.
In both cases a named Defendant along with persons unknown had taken possession of University property for the purposes of opposing the actions of the Israeli Defence Forces in Palestine. After attempts at securing repossession without recourse to the courts had failed, the Universities issued proceedings under CPR Part 55.
The Universities submitted that they were the registered owners of the land with an entitlement to possession of that land. While students and staff had a licence to use University property, this did not include a right to take possession of University land for the purposes of protesting or otherwise. Further, the protesters were trespassers after any licence to use the land had been terminated.
Ms Ali submitted that the University of Birmingham’s decisions to terminate her licence to use its land, and to seek possession of its land, were unlawful because (i) they discriminate against her on the grounds of her beliefs, contrary to sections 13 and 91 of the Equality Act 2010, (ii) the University has not complied with its public sector equality duty, contrary to section 149 of the 2010 Act, (iii) the decisions amount to a breach of the University's statutory duty to ensure freedom of speech for university students, contrary to section 43(1) of the Education (No 2) Act 1986, and (iv) they amount to a breach of her rights to freedom of expression and freedom of assembly, contrary to section 6 of the Human Rights Act 1998 read with articles 10 and 11 of the European Convention on Human Rights.
Mx Butterworth submitted that the University of Nottingham’s decisions to terminate their licence to use its land, and to seek possession of its land, were unlawful because (i) the University has failed to comply with its duties and obligations under statute and its own policies and (ii) the decisions amount to a breach of their rights to freedom of expression and freedom of assembly, contrary to section 6 of the Human Rights Act 1998 read with articles 10 and 11 of the European Convention on Human Rights.
The question which fell to be determined by the High Court was whether any of the defences put forward by the named Defendant met the test in CPR r55.8, namely whether the claim was genuinely disputed on grounds which appeared to be substantial.
Mr Justice Johnson held that none of the defences in either case had a realistic prospect of success, and that there were no other compelling reasons why the claims should be disposed of at trial. Accordingly, the Universities were entitled to the possession orders sought and the claims were not genuinely disputed on grounds which appeared to be substantial.
Further the Court considered it important that both Universities had Codes of Practice setting out procedures to be adopted in respect of student-organised events or meetings on University premises, apt to include protests. Through these Codes both Universities uphold, enable, and facilitate the students’ freedom of speech. However, in both cases the Codes had been breached by the protesters.
In neither case did the Court finally determine the question of whether the Universities, in seeking possession of their land, were ‘hybrid’ public authorities exercising a public function.
Katharine Holland KC, instructed by Shakespeare Martineau LLP, was lead counsel for both the University of Birmingham and the University of Nottingham.
The judgment in University of Birmingham v Persons Unknown and Mariyah Ali [2024] EWHC 1770 (KB) is available here.
The judgment in University of Nottingham v Butterworth and Persons Unknown [2024] EWHC 1771 (KB) is available here.
