In the summer of 2024, a number of protests to the actions of the Israeli Defence Force in Palestine occurred on university campuses both in this jurisdiction, as well as overseas. In this article, Michelle Caney and Harry Marriott review how such protests gave rise to difficult balancing exercises between a University’s right to exercise their private property rights and the rights of others, particularly students, to protest about causes that they are passionate about.
These issues do not appear to have subsided, with injunctions being made in respect of protests at the University of London in November 2024 and at the University of Cambridge in February and March 2025. As it appears likely that similar cases will arise in the summer of 2025, a reconsideration of the relevant legal principles to be applied to such matters is likely to be of assistance. This potential litigation falls into two broad categories:
- Possession claims; and
- Injunction claims.
a. Possession claims
The law in relation to possession claims against trespassers is of course fairly settled. A possession claim against a trespasser is a claim for the recovery of land which is allegedly occupied only by persons who are on the land without the consent of anyone entitled to possession of the land (Civil Procedure Rule 55.1(b)). Once a claim has been issued, at a hearing (or an adjourned hearing) the Court may either decide the claim or give case management directions (Civil Procedure Rule 55.8(1)). It is stated at Civil Procedure Rule 55.8(2) that:
“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.”
In determining whether to make a summary possession order at such a hearing, the relevant test to be applied is the test to be applied to the grant of summary judgment under Civil Procedure Rules 24 (Global 100 Limited v Maria Laleva [2021] EWCA Civ 1835). A summary possession order 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.
The procedure at Part 55 of the Civil Procedure Rules has been used on a number of occasions by universities to obtain summary possession orders against students taking part in protest encampments on their land (for example, University of Essex v Djemal [1980] 1 WLR 1301). In the summer of 2024, in the cases of both University of Birmingham v Persons Unknown and Ali [2024] EWHC 1770 (KB) (“Birmingham”) and University of Nottingham v Butterworth and Persons Unknown [2024] EWHC 1771 (KB) (“Nottingham”), summary orders for possession were sought on the basis that protestors forming camps on communal university land were trespassers.
University of Birmingham v Persons Unknown and Ali [2024] EWHC 1770 (KB)
The University of Birmingham is the registered owner of the land at its Edgbaston campus. Part of the same includes:
- “The Green Heart”, an area of land in the heart of the campus that is to host different events (including the marquee for graduation celebrations); and
- “Chancellor’s Court”, a green space near the Law Faculty.
The University has a Code of Practice on Freedom of Speech (“the Code”) which is incorporated into each student’s contract with the University. Whilst the Code recognises the right to protest, it requires the organiser of an event to comply with its prescribed procedure that includes notifying the University of the event. The Code states that the duty to promote and protect freedom of speech means that the starting point for an event is that it should go ahead, but that a risk assessment should be completed which includes the identification of steps that can be taken to ensure that lawful speech is protected.
Since October 2023, a number of requests had been made under the Code for “Pro-Palestinian events” to take place at the University; permission was granted every time, albeit on occasions conditions were imposed.
In the early hours of 9 May 2024, a protest camp commenced at the Green Heart. No permission had been sought for the same in accordance with the Code. The camp initially involved approximately 15 people, but soon grew. The individuals concealed their identity by wearing masks. Those present were served with notices entitled “notice to quit” which stated that the University had not given permission for the protest; that their occupation amounted to trespass; and that the University required them to leave immediately.
On 27 May 2024, the University’s Security Services became aware that some of the tents at the Green Heart had been moved to Chancellor’s Court. By 5:38am on 27 May 2024, there were 53 tents on the land on the Green Heart, and a further 27 tents on Chancellor’s Court. The encampment posted their intentions on Instagram as follows: “Our expansion to the Chancellor’s Court is not merely a symbolic gesture. It signifies our unwavering commitment to disrupt the University’s routine operations until our demands are met.”
There was some suggestion that a number of incidents had occurred involving individuals in occupation at the two protest camps, including that red paint had been sprayed on one of the University’s buildings. However, these facts were disputed. As this was a summary application, with no oral evidence being heard to determine the disputed accounts, the Court proceeded when hearing this matter on 4 July 2024 on the basis that “the camp has been (at least largely) peaceful and has not involved any actual or threatened violence”.
In early June 2024, the University’s executive board met and made the decision to seek a possession order. Evidence was given on behalf of the University that the decision to seek possession was on the basis that the camp was unauthorised; amounted to trespass; was interfering with the University’s activities; and was having a negative impact on other members of the University community. The possession claim was then issued against persons unknown, with Ms Ali being the only occupier that made her identity known and responded to the proceedings.
At the first possession hearing, the Court made an immediate possession order in respect of Chancellor’s Court (on the basis that the camp had been associated with unlawful activity) but adjourned the claim in respect of the Green Heart.
In response to the possession claim, Ms Ali advanced four defences that needed to be considered for the purposes of a summary possession order:
- That the University’s decision to terminate her licence to use the land, and seek possession, was to discriminate against her on the grounds of her beliefs (contrary to sections 13 and 91 of the Equality Act 2010);
- That the University had not complied with its public sector equality duty (contrary to section 149 of the Equality Act 2010);
- That the decisions made by the University amounted to a breach of its statutory duty to ensure freedom of speech for university students (contrary to section 43(1) of the Education (No 2) Act 1986); and
- That the decisions made by the University amounted 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.
(i) Discrimination contrary to sections 13 and 91 of the Equality Act 2010
In essence, Ms Ali argued that the claim had been brought on the grounds of her philosophical beliefs in support of Palestine, and that the University had directly discriminated against her, contrary to sections 13 and 91 of the Equality Act 2010.
It appears that this is the first time that an argument of this nature has been raised in defence of a possession claim brought in respect of a protest camp. If successful, it had the scope to have huge implications for landowners seeking to recover possession of land.
There was dispute between the parties as to if Ms Ali has a belief that is protected by the Equality Act 2010. However, the Court considered that this issue was better suited for resolution following oral evidence and so did not determine the issue for the purposes of this summary hearing. Instead, the Court was content to assume that there was a real prospect of Ms Ali establishing that she has a relevant philosophical belief, amounting to a protected characteristic.
However, the Court considered that there was no evidence that the decision to terminate any licence, and to bring these proceedings, was in anyway connected to the protestor’s beliefs. The Court noted that the minutes of the meeting where the decision was made to seek possession were clear that it had not been motivated by the protestor’s beliefs. Rather, the minutes were clear that the decision had been motivated by the unauthorised nature of the camp and the disruption that it created. The same decision would have been made if the encampment related to any other cause.
(ii) Breach of the public sector equality duty
The Court considered that the University did have regard to the public sector equality duty. It noted that:
“The relevant underlying policy is the Code. The public sector equality duty is explicitly referenced in the Code, and not simply in a “tick box” manner. The substantive content of the Code indicates a real commitment to structured decision-making on requests to hold events on campus. It does so in a way that is designed to ensure freedom of speech and to accommodate those who hold different, challenging, and opposing views and beliefs.”
The University had held hundreds of diverse events each year and only imposed conditions in a small proportion of cases. The Court stated that, when conditions had been imposed, “it appears from the evidence that that has been to enhance, promote and protect freedom of speech, rather than in any way to undermine the expression of opinion or manifestation of belief”. The University had also not immediately sought possession and had expressed a commitment to work with organisers of the camp to enable them to continue to protest. It was stated that “all of this demonstrates that throughout its decision-making process the University practically and substantively had regard to its public sector equality duty”.
(iii) Breach of the statutory duty to ensure freedom of speech for university students
For the purposes of the duty at section 43(1) of the Education (No 2) Act 1986, the Court noted that the Code achieves its intended effect and therefore the University had taken such steps as are reasonably practicable to ensure that freedom of speech is secured.
The Court considered that the decision to seek a summary possession order, where the defendants had decided not to act in accordance with the Code, does not amount to a breach of subsection (1).
For the purposes of subsection (2), the Court considered that the University was not seeking to deny the protestors the use of the Green Hart as a consequence of their beliefs or their objectives. As was dealt with in the discrimination aspect of the claim, the aims of seeking possession were found to be entirely distinct from such.
(iv) Breach of rights to freedom of expression and freedom of assembly
There was some dispute between the parties as whether Articles 9, 10 and 11 of the European Convention on Human Rights was being interfered with by the seeking of possession. The Court considered that it did not need to resolve this point and would be inappropriate to do so in the summary procedure. The Court was therefore prepared to proceed on the basis of the assumption that the decision to make a possession order, and the making of an order, do potentially interfere with Ms Ali’s rights under Articles 9, 10 and 11 of the European Convention on Human Rights.
The Court was, however, prepared to find that the decision to terminate the licence, seek possession and the making of a possession order was a proportionate interference with Ms Ali’s rights. It was noted that the law gives strong protection to the right of a landowner to possess its own land and that has been consistently recognised as being of sufficient importance to justify the interference with the qualified Convention rights of students who are seeking to trespass on university premises. The Court also considered that “there is no measure that is less intrusive of the defendants’ rights that could achieve the legitimate aim of restoring the land to the University”. It was also noted that there were many ways in which the occupiers could exercise their convention rights other than the action it had. No good reason was advanced for the failure to follow the Code, and engage with the University, before the creation of the camp. The Court was rather definitive in its conclusions on this aspect of the defence, with Mr Justice Johnson stating:
“… the severity of the impact on Ms Ali’s rights does not (by a significant margin) come anywhere close to outweighing the importance of the objective of the University being able to regain possession of its own land. This is a conclusion that can comfortably be reached on a summary application.”
The Court therefore considered that there was no real prospect of successfully defending the claim. There was also no other compelling reason as to why the matter should proceed to a trial. A summary possession order was therefore made.
Scope of Possession Order
There was some discussion about the scope of the land in which the possession order should be made; if the possession order was limited to a small area of land, there was a risk that the camp could simply move to another part of the campus. The Court noted that “[i]n these circumstances, the authorities recognise that it is justified to make a summary possession order not just in respect of the occupied land, but also other land belonging to the University”. Such an approach was therefore taken here.
The possession order made in favour of the University of Birmingham therefore extended to the whole of the Edgbaston Campus as well as its Selly Oak Campus and the University’s Exchange Building in the city centre.
University of Nottingham v Butterworth and Persons Unknown [2024] EWHC 1771 (KB)
The facts of this matter were remarkably similar to those in the case of Birmingham. On 10 May 2024, a camp was erected outside of the University’s Advanced Manufacturing Building. Mx. Butterworth was one of the protestors and the only protestor who took part in the possession proceedings.
The University of Nottingham also had a Code of Practice that deals with activities on its premises (“the Code”). This states that, so far as is reasonably practicable, no premises of the University shall be denied to anyone on any grounds connected with the beliefs or views of that person. The Code also requires notice to be given to the University of events and that the University may impose conditions on any event that are reasonably required to fulfil the University’s responsibility concerning the protection of free speech within the law. No permission had been sought for the camp in this case, as was required by the Code, and no explanation for such was provided.
At the first hearing, the Court divided the “persons unknown” defendants into two categories of defendant (Students/Staff and Non-Students/Staff, with descriptions to identify them) and made a limited possession order against “Non-Students/Staff”, adjourning the remainder of the claim. Mx. Butterworth subsequently filed a defence.
The defence in this case was slightly less expansive that in the case of Birmingham. In this case, it was ultimately agreed that the protestors were in the occupation of the land, that any licence they had to use the land has been terminated. The Court was therefore tasked with question of whether the decision of the University to terminate the protestors licence to use the land, and to seek possession, was unlawful as:
- The University had allegedly failed to comply with its duties and obligations under statue and its own policies (“the public law defence”); and
- The decisions allegedly amount to a breach of the protestor’s rights to freedom of expression and freedom of assembly, contrary to section 6 of the Human rights Act read with Articles 10 and 11 of the European convention on Human Rights (“the human rights defence”).
(i) The public law defence
It was alleged that the University had failed to comply with the Code as it did not engage with protestors. The Court dismissed this argument. The Court noted that the protestors did not comply with the Code and give notice to the University of the proposed encampment. The framework within which engagement takes place was therefore not triggered. The Court considered that there was no evidence that the Code had been breached; there was no evidence that the University had sought to deny Mx Butterworth the use of its land as a consequence of Mx Butterworth’s beliefs or views.
The evidence showed that the University had sought possession of its land in cases concerning the expression of different views. The Court considered that the evidence clearly suggested that the University objected to the appropriation, and associated disruption, of its land rather than the beliefs and views of the protestors. Accordingly, this aspect of the defence was deemed to have no real prospect of success.
(ii) The human rights defence
The Court adopted a similar approach to that which it had in Birmingham, with the critical question to be determined being whether the severity of the effect on the protestors of terminating any licence and seeking possession outweighed the importance of that objective. The Court noted that the protestors had not complied with the Code; did not give advanced notice of their camp; and that there were many other ways that they could lawfully exercise their Convention rights.
The Court considered that in “… contrast, the most appropriate (and least intrusive) way in which the University can vindicate its own legal rights is by these proceedings”. Accordingly, the human rights defence was deemed to have no real prospect of success.
Given that there was also considered to be no other compelling reason why the claim should go to trial, a summary possession order was also made in this case. Again, the Court was prepared to make the possession order in respect of the entire campus and not just the site of the camp.
Claims against Persons Unknown
As noted above, the Court at an earlier hearing had divided the persons unknown into two categories with descriptions, applying the rationale now adopted in injunction claims against persons unknown (Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303). Mr Justice Johnson accepted the University’s argument that this was not the correct approach in this case, as possession orders operate ‘in rem’ (against the land).
The Court therefore confirmed that there is no need to draw a distinction between different categories of “persons unknown” in possession claims. They can instead be described, simply and compositely, as “persons unknown” as required by CPR 55.3(4).
b. Injunctions claims
In addition to seeking possession orders against existing protestors, injunctions may well also be sought to try to restrain any future protests where there is a real and imminent risk of tortious acts being committed by persons unknown. The two causes of action most often relied upon are trespass and nuisance.
When the Court is considering whether to grant a precautionary (formerly quia timet) injunction, whether interim or final, it is not a necessary criterion that the defendant has already committed the tort. The essence of this form of injunction is that it is feared: National Highways Limited v Persons Unknown [2023] 1 WLR 2088 per Sir Julian Flaux at [37] to [40].
A widespread issue in cases of this nature is that the claimant does not know the identity of the person who might commit tortious acts in the future. Not only have they not yet committed the tort, they have not even formed an intention to commit the tort, but may do so in the future. In that sense, they are truly unknowable at the time that an order is made.
The law relating to the making of injunctions against persons unknown was in a state of flux between 2021 and 2023 but has been resolved by the Supreme Court in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47 (“Wolverhampton”) and has been considered in detail in the protest context in a number of cases since.
The Supreme Court held that the Court has jurisdiction to grant an injunction against newcomers, that is, persons who at the time of the grant of the injunction are neither defendants nor identifiable, and who are described in the order only as persons unknown. The injunction may be granted on an interim or final basis, and is necessarily treated as an application being made without notice. The Supreme Court further gave detailed guidance as to when such injunctions may be justified, and the procedural safeguards to apply.
In Valero Energy Ltd v Persons Unknown [2024] EWHC 134 (“Valero”), Ritchie J distilled the guidance promulgated in Wolverhampton into fifteen substantive and procedural requirements, which comprise essential reading for anyone practicing in this area. In Valero, Ritchie J was satisfied that it was appropriate to grant a final injunction in a protest context upon a summary judgment application. The injunction was granted for a period of five years, subject to provision for annual reviews. The requirements set out below are now commonly used as a checklist, modified as appropriate, when deciding whether it is appropriate to make an injunction against persons unknown:
“(A) Substantive Requirements
Cause of action
(1) There must be a civil cause of action identified in the claim form and particulars of claim. The usual quia timet (since he fears) action relates to the fear of torts such as trespass, damage to property, private or public nuisance, tortious interference with trade contracts, conspiracy with consequential damage and on-site criminal activity.
Full and frank disclosure by the Claimant
(2) There must be full and frank disclosure by the Claimant (applicant) seeking the injunction against the PUs.
Sufficient evidence to prove the claim
(3) There must be sufficient and detailed evidence before the Court on the summary judgment application to justify the Court finding that the immediate fear is proven on the balance of probabilities and that no trial is needed to determine that issue. The way this is done is by two steps. Firstly stage (1), the claimant has to prove that the claim has a realistic prospect of success, then the burden shifts to the defendant. At stage (2) to prove that any defence has no realistic prospect of success. In PU cases where there is no defendant present, the matter is considered ex-parte by the Court. If there is no evidence served and no foreseeable realistic defence, the claimant is left with an open field for the evidence submitted by him and his realistic prospect found at stage (1) of the hearing may be upgraded to a balance of probabilities decision by the Judge. The Court does not carry out a mini trial but does carry out an analysis of the evidence to determine if it the claimant’s evidence is credible and acceptable…
No realistic defence
(4) The defendant must be found unable to raise a defence to the claim which has a realistic prospect of success, taking into account not only the evidence put before the Court (if any), but also, evidence that a putative PU defendant might reasonably be foreseen as able to put before the Court (for instance in relation to the PUs civil rights to freedom of speech, freedom to associate, freedom to protest and freedom to pass and repass on the highway) … The nature of the proceedings are “ex-parte” in PU cases and so the Court must be alive to any potential defences and the Claimants must set them out and make submissions upon them…
Balance of convenience – compelling justification
(5) In interim injunction hearings, pursuant to American Cyanamid v Ethicon [1975] AC 396 , for the Court to grant an interim injunction against a defendant the balance of convenience and/or justice must weigh in favour of granting the injunction. However, in PU cases, pursuant to Wolverhampton, this balance is angled against the applicant to a greater extent than is required usually, so that there must be a “compelling justification” for the injunction against PUs to protect the claimant’s civil rights. In my judgment this also applies when there are PUs and named defendants.
(6) The Court must take into account the balancing exercise required by the Supreme Court in DPP v Ziegler [2021] UKSC 23, if the PUs’ rights under the European Convention on Human Rights (for instance under Articles 10(2) and 11(2)) are engaged and restricted by the proposed injunction. The injunction must be necessary and proportionate to the need to protect the Claimants’ right.
Damages not an adequate remedy
(7) For the Court to grant a final injunction against PUs the claimant must show that damages would not be an adequate remedy.
(B) Procedural Requirements
Identifying PUs
(8) The PUs must be clearly and plainly identified by reference to: (a) the tortious conduct to be prohibited (and that conduct must mirror the torts claimed in the Claim Form), and (b) clearly defined geographical boundaries, if that is possible.
The terms of injunction
(9) The prohibitions must be set out in clear words and should not be framed in legal technical terms (like “tortious” for instance). Further, if and in so far as it seeks to prohibit any conduct which is lawful viewed on its own, this must also be made absolutely clear and the claimant must satisfy the Court that there is no other more proportionate way of protecting its rights or those of others.
The prohibitions must match the claim
(10) The prohibitions in the final injunctions must mirror the torts claimed (or feared) in the Claim Form.
Geographic boundaries
(11) The prohibitions in the final injunctions must be defined by clear geographic boundaries, if that is possible.
Temporal limits – duration
(12) The duration of the final injunction should be only such as is proven to be reasonably necessary to protect the claimant’s legal rights in the light of the evidence of past tortious activity and the future feared (quia timet) tortious activity.
Service
(13) Understanding that PUs by their nature are not identified, the proceedings, the evidence, the summary judgment application and the draft order must be served by alternative means which have been considered and sanctioned by the Court. The applicant must, under the Human Rights Act 1998 S.12(2) , show that it has taken all practicable steps to notify the respondents.
The right to set aside or vary
(14) The PUs must be given the right to apply to set aside or vary the injunction on shortish notice.
Review
(15) Even a final injunction involving PUs is not totally final. Provision must be made for reviewing the injunction in the future. The regularity of the reviews depends on the circumstances. Thus such injunctions are “Quasi-final” not wholly final.”
University of London v Harvie-Clark and others and Persons Unknown [2024] EWHC 2895 (Ch)
In the context of direct action protests on University land, the High Court granted precautionary interim injunctive relief prohibiting direct action by student protestors, including persons unknown, in University of London v Harvie-Clark and others and Persons Unknown [2024] EWHC 2895 (Ch). In doing so, Thompsell J applied the principles and tests set out in Wolverhampton and Valero (see: [16]-[53]).
In May 2024, a group of protestors had established an encampment on land belonging to the University of London, as part of a protest directed at the School of Oriental and African Studies, under the slogan of “boycott, divestment, and sanctions”, once again in connection with the Isreal Palestine conflict. The encampment led to the University seeking a possession order, as in the Birmingham and Nottingham cases detailed above.
On 31 July 2024, Deputy Master Rhys granted a possession order. Although the original encampment dispersed following the possession order, the protestors established a further encampment on other University owned land. After this was also vacated, the protestors established a third encampment on nearby land owned by a third party. The protestors then used that as a base from which they organised disruptive protests on the University’s land.
The University therefore sought a precautionary injunction restraining the Defendants from establishing a further encampment on its land and from carrying out protests on its land without first complying with its code governing freedom of speech. When the application came before Thompsell J on 29 October 2024, he was satisfied that it was appropriate to grant interim relief. In a detailed judgment handed down on 25 November 2024, Thompsell J applied the guidance in Wolverhampton and Valero, going through each of the procedural and substantive requirements in turn. Thompsell J specifically considered whether the Defendants may have a human rights defence and accepted the University’s submission that such an argument would be “bound to fail” (see: [37]), for essentially the same reasons given by Johnson J in the possession case of Birmingham.
The Chancellor, Masters and Scholars of the University of Cambridge v (1) Persons Unknown (2) European Legal Support Centre [2005] EWHC 454 and [2025] EWHC 724
By application dated 12 February 2025 the University sought an injunction against Persons Unknown to restrain them from alleged threats of trespass and private nuisance in respect of its land in Cambridge at two sites. The context was once again various forms of direct action demonstration and protest by those supportive of the Palestinian cause in the continuing conflict in Gaza and who contend that the University is complicit in the events taking place.
This application first came before Fordham J in an urgent hearing on 27 February 2025. The urgency arose from a pending graduation ceremony on 1 March 2025. The University feared that this would be disrupted as graduation ceremonies in 2024 had to be relocated due to an earlier encampment. The University was seeking injunctive relief for a five year period but Soole J declined to make such an order. Instead, Fordham J granted a limited injunction until 23.00 on 1 March 2025 restraining Persons Unknown from, without the consent of the University, (i) entering occupying or remaining upon the land comprising Senate House and Senate House Yard or (ii) erecting or placing any structure (including tents or other sleeping equipment) on that land.
As an interesting aside, in his judgment (reported at: [2025] EWHC 454), Fordham J decided to follow the approach advocated by Nicklin J in MBR Acres Ltd v. Curtin [2025] EWHC 331 (KB) at [358]-[359], and granted an Injunction Order in terms which simply identified the Defendants as “Persons Unknown”, i.e. without any further description. This was on the basis that these are contra mundum injunctions and therefore potentially apply to the whole world. By subsequent application, the University applied to amend the Claim Form accordingly.
The matter was then re-listed before Soole J on 19 March 2025, with a time estimate of 1 day. By that time, the University had reconsidered its position and was no longer seeking a five year injunction. Rather, the University sought an injunction for a four month period to coincide with the date of the last graduation ceremony (26 July 2025). After hearing detailed argument, including from two interveners (European Legal Support Centre and National Council for Civil Liberties), Soole J was satisfied that there was a compelling need for the injunction sought, for the reasons set out at [81] to [101] of his judgment (reported at [2025] EWHC 724):
- First, he was satisfied that there was an imminent and real risk of the occurrence of the conduct which the Univeristy sought to restrain and consequent substantial harm. Indeed, he considered there was a strong probability that it would otherwise occur.
- Secondly, he was satisfied that it was likely (indeed very likely) that, at a notional final trial or hearing of the application for relief, the application would succeed.
- Third, Soole J assumed, for the purpose of the application, that the protestors’ Articles 10 and 11 rights were engaged but was satisfied that any interference was in pursuit of the legitimate aim of the University to secure its buildings and spaces and the activities carried out thereon; and that this was necessary and proportionate.
Ultimately, the protestors had ample means to lawfully protest through other means, including by following the University’s Code of Practice of Freedom of Speech (which was built into the provisions of the order), without undertaking disruptive and unlawful direct action.
In respect of the University’s application to amend the Claim Form to describe the Defendants simply as “Persons Unknown”, it apparent from reading the judgment that Soole J was not persuaded by this approach and the University therefore reconsidered their position at the hearing (see: [7]). Accordingly, the injunction was ultimately made against the Defendants, as identified by the description in the heading of the Order, and not simply as Persons Unknown.
Comment
A number of the judgments handed down over the last year provide essential guidance for universities, and landowners more generally, regarding the key concepts and issues that arise in cases of this nature. Of course, in any democratic society, the importance of the right to protest cannot be understated. However, how this is balanced with private property rights, and the need to avoid disruption, gives rise to a number of important questions. With there being a significant risk that further cases of this nature will arise in the summer of 2025, these difficult questions of balancing parties’ rights are likely to be explored further in the future.
The judgments discussed above serve as a useful reminder that when seeking summary possession orders, or injunctive relief, there are certain questions that any Court will be reluctant to determine in a process that involves limited documents and no oral evidence having been heard. Those representing landowners seeking possession or injunctions will be well served to be mindful of the same. In such circumstances, in order to establish that arguments in a defence have no real prospect of success, landowners may have to ensure that their arguments are not predicated solely on persuading a Court on questions that are based on disputes of fact.
Insofar as the scope of the possession order is concerned, Universities will no doubt be grateful of the reassurance that the Courts are prepared to support the making of a possession order in respect of all of their land, rather than simply where the protestors are currently camped, so as to avoid the situation where trespassers simply move their camp after the making of a possession order, where this is justified on the facts of the case.
In respect of injunctions against Persons Unknown, there are plainly extremely useful remedies for landowners and, experience shows that they have a powerful deterrent effect. However, the authorities emphasise that they will only be granted where there is sufficient evidence to demonstrate a compelling need for such relief. The drafting of injunctive orders has to be approached with great care so as to ensure that the terms are not unduly restrictive on legitimate acts of protests. These considerations will equally be material as to the temporal and geographical limitations of any order, along with how prohibited conduct is defined.
On the question of how the defendants in a possession or injunction claim are defined where their identities are unknown, the authorities show a divergence of approach. In the possession context, the most recent authoritative ruling in Nottingham confirms that it is permissible to define such defendants simply as “persons unknown” in accordance with CPR 55.3(4).
In the injunction context, most of the decisions since Canada Goose follow the approach of defining the defendants with reference to the conduct which the order is designed to prohibit. In MBR Acres, Nicklin J took a different approach and held that it was permissible to follow the same approach as in possession claims and refer to them as “persons unknown” without further description. That approach was followed by Fordham J in the University of Cambridge case but did not find favour with Soole J when the matter came before him one month later.
There is, however, a certain simplicity to Nicklin J and Fordham J’s approach. Given that these injunctions are essentially orders that are made against the world, it makes some sense to address them to “persons unknown” but recognise that they will only be breached if someone infringes the actual terms in the injunction itself. Nevertheless, the current approach tends to favour identifying defendants by description in the heading of the action, as per Canada Goose, rather than simply as “persons unknown”, and it is recommended that practitioners continue to follow that approach until there is an authoritative decision suggesting otherwise.
As this jurisprudence continues to develop, and the Israeli-Palestinian conflict unfortunately shows no sign of subsiding, it is likely that we will see further judgments handed down in a University context, and further afield, as the Courts seek to undertake the delicate balancing exercise of protecting legitimate property rights, whilst upholding the right to lawfully protest.
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.
This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
