Universities, “sit in” protests and summary possession.

 

Introduction

This article addresses the recent High Court decisions made in the cases of University of Birmingham v (1) Persons Unknown (2) Mariyah Ali [2024] EWHC 1770 (KB) and University of Nottingham v (1) Mx Joel Butterworth (2) Persons Unknown [2024] EWHC 1771 (KB). Birmingham was heard the day before Nottingham. Both cases were decided by Johnson J.

Background

The cases concerned students at each of the named universities carrying out a protest. The nature of their protest was to “sit in” on land owned by the universities.

The universities wanted to secure the recovery of their land. They made executive decisions to terminate by notice any licences otherwise enjoyed by the student protesters to occupy the land, and then brought possession proceedings under CPR Part 55 on the grounds of trespass.

CPR Part 55

The procedure for possession under CPR Part 55 has long been used by universities and other academic institutions to obtain summary possession orders against students taking part in “sit in” protests. Indeed, reference is made in Birmingham to a chain of cases stretching back to the 1980s (the earliest involving the predecessor provision of CPR Part 55, being Order 13 of the Rules of the Supreme Court).

As readers with property law experience will be well aware:

• A claim for recovery of land which a claimant alleges is occupied only by persons who are on the land without the consent of anyone entitled to possession of the land, is brought under CPR 55.1(b).
• Once a claim has been issued, a hearing is then fixed, and at that hearing the court will either decide the case on a summary basis or give case management directions.
• The ‘test’ that determines whether a summary possession should be made is whether the claim “is genuinely disputed on grounds which appear to be substantial” (CPR 55.8). That test is in essence the same as the test for summary judgment under CPR Part 24.

The issue therefore in both Birmingham and Nottingham was whether the “sit in” protesters had either a real prospect of successfully defending the claims or whether there was some other compelling reason why their cases should go to trial.

Issues

There is much at stake for universities in these situations: they want to act in the interests of all their students, they are also keen to avoid reputational damage, and they are desperate to avoid legal proceedings being dragged out to a full trial with the “sit-ins” continuing in the interim fuelled by escalating protester spirit.

In fact, much was not in dispute between the parties in these cases. It was not disputed that the universities owned the land occupied by the protesters. It was agreed that the protesters were in occupation of that land. It was agreed that the universities had (purportedly) terminated by notice any licence that the protesters had to occupy the land.

The protesters however argued that the decisions to terminate the licences were unlawful. They relied variously upon public law defences (for example, under sections 13 and 149 of the Equality Act 2010 (EA 2010) in Birmingham, and in both cases under section 43 of the Education (No. 2) Act 1986 (E2A 1986)) and human rights arguments (focussing upon Articles 10 and 11 of European Convention on Human Rights).

Context

The context in each case (no doubt consistent with other universities) was that the university had a policy and/or code in place as part of the university/student contract. That policy and/or code governed the way in which student freedom of speech was dealt with on campus. In each case a student or body wishing to have on university premises either a demonstration or a protest or an event or meeting that likely raised controversial issues was first required to follow the procedure set out in the policy and/or code. That in essence required notice being given to a university official who would then carry out a risk assessment and determine whether the event should proceed, and, if so, subject to what, if any, conditions. A request could be refused. There was the possibility of appeal.

Responding to the protesters’ arguments of unlawfulness

The existence of a policy and/or code indicated a real commitment by the universities to structured decision-making where requests were made for events to take place on campus. The universities had taken such steps as were reasonably practicable to ensure that freedom of speech was secured. It could not be said that the university in Birmingham had not had regard to the factors identified in section 149 of the EA 2010. Similarly, there had not been a breach of section 43 of the E2A 1986 by either university.

In neither case did the protesters follow the policy and/or code in place at their university. They simply began the “sit in”. The framework for engagement was never triggered. This amounted to a significant incursion into the university’s right to possession of its land. It also stopped the university from operating in accordance with the policy and/or code that formed part of the contract between it and every one of its students.

Further, there was no evidence put forward by the protesters that the universities had terminated the licences or brought the subsequent possession claims because of the protesters’ particular beliefs. It was instead the appropriation of their land to which each university objected. For this reason, the discrimination claim in Birmingham was hopeless: the protesters could not identify a comparator unauthorised camp that had been permitted to proceed on campus where the campers had espoused different beliefs.

As to human rights arguments, the rights contained in each of Articles 10 (right to freedom of expression) and 11 (right to freedom of assembly and association with others) are of course qualified. Interference with those rights may be justified if the conduct is prescribed by law and necessary for the protection of the rights of others.

As to the first of these requirements, having dismissed the arguments of the protesters as set out above, it could not be said that the universities’ decisions to seek a summary possession order in accordance with a regulated procedure was not prescribed by law.

As to the second of these requirements, the critical issue was whether the severity of each university’s actions on the protesters’ rights was outweighed by the importance of the objective that was pursued by those actions.

In this latter regard, the protesters were considered to be at best “right at the margin” of the protection afforded by Articles. They had not complied with the relevant policy and/or code. They could of course have engaged with the universities, which would have enabled a structured decision to be made as to whether each “sit in” was permitted and, if so, with what, if any, conditions attached. There were many other ways in which the protesters could have lawfully exercised their rights. By contrast, the most appropriate and least intrusive way in which the universities could maintain their rights was by bringing the possession proceedings. Each university’s right to possession of its own land was described as being “of real weight”, especially so where each university positively sought to use its land in a way that allowed free expression.

For the purposes of CPR 55.8 the protesters therefore had neither a real prospect of successfully defending the claims nor was there some other compelling reason as to why their cases should go to trial.

The court proceeded to make summary possession orders.

Comment

We live in politically unsettled times. There is a lot for people to protest about. University “sit-ins” are a way in which some students seek to give voice to their concerns.

Neither university here sought to injunct its students. Each university ‘just’ sought to recover the land upon which the protesters were camped.

Lines of argument based upon discrimination, public law defences and human rights, and advanced by heavyweight legal teams, were dismissed in these two cases. The court confirmed on each occasion that its conclusions could be reached “comfortably and confidently” on a summary basis. In both cases the court was then willing to extend the scope of the possession order beyond the occupied land to all other land belonging to the university.

Although each future case will turn on its own facts, it may be anticipated that universities will turn to this summary possession route more and more, buoyed by the outcome in these two claims.

This article was first published by Practical Law UK here.