The High Court has granted the University of London (the University) an interim precautionary injunction against named defendants and also persons unknown (a so-called "newcomer injunction") to prevent unplanned protests on its land.
This decision follows the Supreme Court's ruling in Wolverhampton CC v London Gypsies and Travellers & Others (please see our previous summary here) in which the Court decided that it was possible to grant injunctions against newcomers (ie people who were truly unknowable at the time the order was made) on a without notice basis and that the principles set out there could extend beyond travellers to other situations including protests.
In this case, the University was concerned about the potential for protests on its land in support of Palestinians in Gaza which could disrupt users of the site and give rise to health and safety and security concerns. Whilst it made clear that it supports free speech and does not object to protests in principle, it requires these to be carried out in accordance with its code of practice and its visitor regulations and it sought an injunction on those terms and on terms prohibiting interference with access to the land and prohibiting the erection of tents or any other structure.
In considering the various substantive requirements of a successful interim precautionary injunction, the Court held that:
- The land concerned was private land and the University had a cause of action in trespass;
- The University had made full and frank disclosure of any defences that may be available to a defendant;
- No defence was likely to succeed based on property rights and whilst peaceful protest falls within the scope of the rights of freedom of speech and freedom of assembly, which are guaranteed by Articles 10(1) and 11(1) of the European Convention on Human Rights, these rights are qualified, did not include a right to trespass on private land and interferences here were justified in the proportionate pursuit of prescribed legitimate aims (including the protection of the rights and freedoms of others);
- The University had provided sufficient evidence to satisfy the judge that there was a serious issue to be tried and that it had a realistic prospect of success, there having been numerous previous disruptive trespassory protests and the defendants having established a succession of encampments nearby which they could seek to relocate onto the University's land; and
- Damages would not be an adequate remedy as the potential effect of the further occupation of the University's land could damage its reputation and operation as a university and there were concerns about increased costs in relation to security and remedying any damage caused. In addition, the Court considered it extremely unlikely that the University would be able to obtain any damages from the Defendants.
On the procedural requirements the Court was satisfied that the persons unknown were identifiable by reference to the prohibited conduct, that the terms of the injunction (as slightly amended by the judge) were clear and matched the University's pleaded claim, that there were clear geographical boundaries and a time limit to the order, there were no issues with service or a need for the order to be reviewed given its one year duration and there was provision for affected persons to apply to have it set aside.
The final point the Court considered before allowing an injunction was the balance of convenience which the Court held was clear in this case. Whilst the Court acknowledged that "the motivations of the protestors spring from a deeply-held sense of injustice and it is a good thing that young people do take notice and seek to call out what they see as injustice", it was satisfied that if the injunction was not granted then there would be a real risk that the Claimant would face a realistic threat of further unauthorised and unplanned invasions of its land, giving rise to cost, reputational damage, and damage to the educational needs of students of the University. Conversely, if the injunction was granted then the loss to the Defendants would be small. They would still be able to protest even if the requirements of the University's code and visitor regulations might require the protests to be planned in advance and they would still have other ways of protesting, for example, on social media.
The Court therefore granted the interim precautionary injunction.
It is clear from this case that the courts are prepared to award injunctions to protect property rights even where rights to freedom of expression and assembly might be limited in some way by doing so.
