University of Birmingham v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 09 July 2024 |
| Neutral Citation | [2024] EWHC 1770 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2024-BHM-000127 |
[2024] EWHC 1770 (KB)
Mr Justice Johnson
Case No: KB-2024-BHM-000127
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Katharine Holland KC and Michelle Caney (instructed by Shakespeare Martineau LLP) for the Claimant
Liz Davies KC and David Renton (instructed by Hodge, Jones and Allen) for the Second Defendant
Hearing date: 4 July 2024
Approved Judgment
This judgment was handed down by release to The National Archives on 9 July 2024
This case concerns an encampment by students (and possibly others) at the University of Birmingham (“the University”) on the University's campus. The campers are opposed to actions of the Israeli Defence Force in Palestine. They demand that the University takes certain steps to show that it too opposes those actions. The University seeks an order for possession of its land against the campers. It says that a summary order for possession should be made under Part 55 of the Civil Procedure Rules.
Mariyah Ali is one of the campers. She is, apparently, the only one who is willing to reveal her identity and take part in these proceedings. She says that there are grounds to dispute the claim and that directions should be given for a trial of the issues. Specifically, she says that the University's decisions to terminate her licence to use its land, and to seek possession of its land, are 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 (“the Convention”).
The test for granting a summary order for possession
Part 55 of the Civil Procedure Rules makes provision for possession claims, meaning claims for the recovery of possession of land: CPR 55.1(a). This includes a possession claim against trespassers, meaning (for these purposes) a claim for the recovery of land which the claimant alleges is occupied only by persons who are on the land without the consent of anyone entitled to possession of the land: CPR 55.1(b).
Where, in a possession claim against trespassers, the claimant does not know the name of a person in occupation or possession of the land, the claim must be brought against “persons unknown” in addition to any named defendants: CPR 55.3(4).
Once a claim has been issued, a hearing must be fixed. At that hearing, or any adjourned hearing, the court may either decide the claim or may give case management directions: CPR 55.8( 1). CPR 55.8(2) states:
“Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions… will include the allocation of the claim to a track or directions to enable it to be allocated.”
The test for deciding whether to make a summary possession order is the same as the test that applies to the grant of summary judgment under Part 24 of the Civil Procedure Rules: Global 100 Limited v Maria Laleva [2021] EWCA Civ 1835, [2022] 1 WLR 1046 per Lewison LJ at [13] – [14]. A summary order for possession may therefore be made if there is no real prospect of successfully defending the claim and there is no other compelling reason why the claim should be disposed of at trial: CPR 24.3. If this test is satisfied then it will necessarily follow that the court is satisfied that the claimant would be likely to establish at a trial that possession should be granted (cf section 12(3) Human Rights Act 1998).
The procedure under Part 55 of the Civil Procedure Rules (and its predecessor provision, order 13 of the Rules of the Supreme Court) has been used by universities and other academic institutions on many occasions to secure summary possession orders against students taking part in encampments or “sit-ins”: University of Essex v Djemal [1980] 1 WLR 1301, School of Oriental and African Studies v Persons Unknown [2010] EWHC 3977 (“ SOAS”), University of Sussex v Protesters [2010] PLSCS 105, University of Sussex v Persons Unknown [2013] EWHC 862 (Ch), University of Birmingham v Persons Unknown [2015] EWHC 544, University of Manchester v Persons Unknown (transcript, 20 March 2023).
The issues
The parties agree the University is the registered freehold and leasehold owner of the land that is occupied by the camp. They agree that the defendants are in occupation of the land. They agree that the defendants do not have an interest in the land or any right to occupy the land. They agree that the University has (purportedly) terminated any licence that they had to use the land.
That means that subject to any defence that the defendants might have to the claim, the University is entitled to an order for possession of the land.
The parties agree that if the decisions to terminate any licence Ms Ali had to use the land, and to bring possession proceedings, were unlawful then Ms Ali has a real prospect of successfully defending the claim: Lewisham London Borough Council v Malcolm [2008] 1 AC 1399 per Lord Bingham at [19], Aster Communities Ltd v Akeman-Livingstone [2014] EWCA Civ 1081 [2014] 1 WLR 3980 per Arden LJ at [2], [2015] UKSC 15 [2015] AC 1399 per Baroness Hale at [17], Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334 [2019] HLR 47 per Longmore LJ at [21], [25] and [31].
Ms Ali's case is that the University's decisions to terminate any licence she had to use the land, and to seek possession of the land, are unlawful for the reasons set out in paragraph 2 above.
The primary issue on this application for a summary possession order is therefore whether Ms Ali has a real prospect of successfully defending the claim on one or more of these grounds.
The facts
The basic factual background is largely undisputed. I summarise the facts based on the following sources:
(1) The statements of case, so far as the University's summary of facts in the particulars of claim is admitted in the amended defence.
(2) A judgment of Ritchie J given at an earlier stage of these proceedings: [2024] EWHC 1529 (KB) at [5] – [29].
(3) Written witness statements of Ms Ali.
(4) Written witness statements of Dr Nicola Cárdenas Blanco, the University's director of legal services, together with exhibits to those statements.
(5) A written witness statement of Mark Lawrence, the University's head of community safety, security and emergency planning, together with exhibits to that statement.
(6) Written witness statements of Jon Elsmore, the University's director of student affairs, together with exhibits.
The University is a corporate body created by Royal Charter in 1990, It is an exempt charity under schedule 3 to the Charities Act 2011. Its governing body is “the council”, and members of the council are the claimant's charitable trustees. It has approximately 38,000 students and 9,000 staff. It has two main campuses in Birmingham, one of which is at Edgbaston, the other at Selly Oak.
The University is the registered freehold and leasehold owner of land at its Edgbaston campus. Part of the Edgbaston campus includes “The Green Heart”. The Green Heart is an open area of land which is intended to “provide stimulating, secure and accessible landscaped surroundings.” Dr Blanco says that students use The Green Heart both to study on the grass, and to take a break from studies in the adjoining library. Marquees are often erected on The Green Heart for different events in the University's annual calendar, including enrolment in September, a festival to celebrate belonging and inclusion at the start of Semester 2, and a programme of activities in the summer term. The main site for graduation celebrations is a marquee located on The Green Heart.
The University has a Code of Practice on Freedom of Speech (“the Code”). The Code is incorporated in every student's contract with the University. The Code covers demonstrations and protests and other events organised by the University's staff or students. It draws attention to the Public Sector Equality Duty:
“which requires the University to have due regard to the need to eliminate discrimination, harassment, victimisation, and to advance equality of opportunity and foster good relations between people who share ‘protected characteristics’ (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation) and those who do not. …
…for freedom of speech, the University ‘must promote the importance of freedom of speech and academic freedom’, and must ‘take such steps as are reasonably practicable’ to secure freedom of speech within the law. For other duties, including PSED… universities are required to ‘have due regard’ to the need to achieve the aims of these pieces of legislation. Therefore, in balancing these obligations and making decisions, the University will be mindful that it has a particular responsibility to promote and protect freedom of speech.”
The Code requires the organiser of an event to comply with its provisions and to follow a prescribed procedure. This includes discussing the activity with the organiser's Head of School before proceeding. The Head of School is then responsible for determining whether (and what) additional measures should be put in place. It states:
“Where the...
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University of Nottingham v MX Joel Butterworth (also known as River Butterworth) (they/them)
...I am giving judgment in both cases at the same time. In this judgment I make reference to the reasoning in the Birmingham judgment: [2024] EWHC 1770 (KB). The test for granting a summary order for possession 5 The test for granting a summary order for possession is whether there is (a) no r......