University of Birmingham v Persons Unknown & Anor

A summary possession order may be made where the claimant shows that the defendant has no real prospect of successfully defending the claim and there is no other compelling reason for a trial. In an encampment case, a university may recover possession where occupation is unauthorised and interferes with its use of land, even if protest rights under articles 9, 10 and 11 of the Convention are engaged. The interference may be proportionate where the university provides lawful alternative means of protest, its property rights carry substantial weight, and no less intrusive measure would restore possession. Compliance with the public sector equality duty is assessed substantively and may be demonstrated through a structured freedom-of-speech code and its practical operation.

The University sought summary possession of land occupied by a student encampment protesting Israel’s actions in Palestine. Mariyah Ali, one of the campers, opposed summary determination and alleged direct discrimination, breach of the public sector equality duty, breach of the statutory duty to secure freedom of speech in universities, and unjustified interference with Convention rights.

Earlier in the proceedings, Ritchie J made possession orders concerning other parts of the University’s land and adjourned the remaining claim. After his recusal, the remaining application was heard by Johnson J. The central question was whether Ms Ali had a real prospect of successfully defending the possession claim or whether any other compelling reason required a trial.

1. Summary possession test. The test under CPR Part 55 was the same as summary judgment under Part 24. The University was entitled to summary possession if Ms Ali had no real prospect of successfully defending the claim and there was no other compelling reason for a trial.
2. Equality Act 2010. The court assumed, without deciding, that Ms Ali’s beliefs could constitute a protected philosophical belief and that the University might be exercising public functions. There was no evidence that the decisions to terminate her licence or seek possession were made because of her beliefs. The direct discrimination claim was withdrawn. The University had substantively complied with its public sector equality duty through its freedom-of-speech code, its authorisation of diverse events, and its attempts to facilitate lawful protest.
3. Freedom of speech. Occupying the Green Heart constituted use of premises for section 43(2) purposes, but the University’s decision was not connected with the defendants’ beliefs or objectives. The University had taken reasonably practicable steps to secure lawful freedom of speech, and seeking possession after breach of the Code did not contravene section 43(1).
4. Convention rights. The court assumed that possession interfered with articles 9, 10 and 11. The interference was prescribed by law and pursued protection of the University’s property rights. Applying the proportionality test in Bank Mellat, possession was rationally connected to that objective, no less intrusive measure would restore all the land, and the University’s property rights substantially outweighed the attenuated weight of the protest rights.
5. The disputed preliminary issues did not require a trial because each defence failed on the assumed basis most favourable to Ms Ali. A summary possession order was therefore made, extending beyond the Green Heart to the wider land sought by the University.

First-instance decision. The judgment records earlier orders by Ritchie J in the same proceedings, including possession orders concerning Chancellor’s Court and parts of Edgbaston Campus.