KB-2025-000497 - [2025] EWHC 2330 (KB)

In relation to the application to re-amend the Amended Claim Form and Amended Particulars of Claim, I considered that this should clearly be permitted. I will deal with the merits of the claim in respect of Chestnut Tree Lawn below, but I could see no valid objection to the University being permitted to plead such a claim.

In relation to the application for summary judgment, there are a number of principles and sources of guidance which are germane. I was referred to the identification of issues by Ritchie J in Valero, which was itself a case involving an application for summary judgment in relation to injunctive relief against persons unknown, and to the fact that Mr Twigger KC adopted the same order of examination of the points arising. For my part, I agree that the 15 ‘guidelines’ identified by Ritchie J in Valero at [58] are, as Mr Twigger KC put it at [54] of the Twigger Judgment, a ‘helpful checklist’, but, given the different legal nature and consequences of the different points, I prefer to consider them in a rather different order, and grouped somewhat differently.

I start with a preliminary point, which is as to whether notice has been given of the hearing, and a related point as to its nature.

I was satisfied, on the basis of the evidence before me and to which I have already made reference, that there was proper service, in accordance with the Order of Soole J, of the application for summary judgment, of the evidence in support of it and of the order which was sought. Had I not been satisfied of this, I would not have proceeded with the hearing. As it was, I considered that it was appropriate to proceed to consider the University’s applications on 23 July 2025.

On that basis it might be argued that this hearing was not one without notice, in that steps have been taken to give notice of the hearing to those who were most likely to be affected by it and any resulting order. Nevertheless, given that what is sought is an injunction which can affect ‘newcomers’, ie persons who have not hitherto carried out any protests on any of the relevant sites but who might do so in the future, it is unrealistic to say that all those persons had notice of this hearing. For this reason, the hearing had to be treated as one made ‘without notice’ (or ex parte), such that the applicant had an obligation to make full and frank disclosure, including of all matters which might tell against the grant of the injunctions sought.

In the present case, it was not in dispute that this should be the basis on which the hearing was to be conducted; and in any event Mr Lees KC said that the University considered that it had made full and frank disclosure. I proceed on the basis that this is the case.

The second preliminary matter which requires explicit reference is that the application is for summary judgment pursuant to Part 24.

In the ordinary way, a claimant may not seek summary judgment until the defendant has served an Acknowledgment of Service or a Defence, but the court may give permission for such an application (CPR r. 24.4(1)(a)). The basic purpose of that rule is to ensure that no application for summary judgment is made before a defendant has had an opportunity to participate in the proceedings. In the present type of case, where the Defendants are persons unknown, no Acknowledgement of Service or Defence can be expected to be served, and none has been. I considered that it was appropriate for the application for summary judgment nevertheless to be made, given that I was satisfied that notice had been given of the application in conformity with Soole J’s Order.

The test for summary judgment is familiar: the first task of the court is to consider whether the defendant has a realistic prospect of defending the claim. Ritchie J helpfully summarised the test to be applied in Valero at [48]. As mentioned in that paragraph, it has been emphasised by the Court of Appeal in National Highways Ltd v Persons Unknown [2023] EWCA Civ 182 that the test to be applied when a final anticipatory injunction is sought through a summary judgment application is the same as in all other cases.

As Ritchie J says in Valero at [51], where the Defendants are persons unknown and the hearing is proceeding as one which is ‘without notice’ (or ex parte), the course which the court should adopt is to consider what defences the Defendants could run, and whether those defences have a realistic prospect of success.

The first question is whether the University has shown, prior to consideration of possible defences, that it has an entitlement to the relief sought.

There are a number of aspects which need to be considered here. In the first place, would the University have a good cause of action were the conduct which is feared to take place? I will deal first with the sites other than Chestnut Tree Lawn, and then will deal with Chestnut Tree Lawn separately.

In my judgment, if the conduct which it is sought to prevent occurred at the Senate House/Senate House Yard/Old Schools or Greenwich House, the University would have a cause of action in trespass. There is in my view no doubt that the University is the owner of those sites. While Senate House/Senate House Yard/Old Schools are currently unregistered land, the statutory declaration of Richard Griffin shows the University’s long-standing ownership and possession of these sites. The University is the registered freehold proprietor of Greenwich House under title number CB337595. No member of the public has been granted a licence to be on any part of those sites. In respect of students, the Senate House, the Old Schools and Greenwich House are not open to them, and they have no general licence to be there. Senate House Yard is generally open to them, but only when the gates are open and no event is taking place there. In any event, students have no general licence to carry out protests on or occupy Senate House Yard, and to do so without obtaining consent under the University’s Rules of Behaviour and Code of Practice of Freedom of Speech amounts to a breach of the Rules of Behaviour. Those are rules which students sign up to when enrolling at the University; and any student entering the land for the purposes of carrying out Direct Action would have no licence to do so and would be a trespasser.

Equally, I consider that the University would have a cause of action in private nuisance. Private nuisance is any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or his use or enjoyment of that land: High Speed Two (HS2) Ltd v Persons Unknown [2022] EWHC 2360 (KB) (‘HS2’), [85]. Further, an unlawful interference with the claimant’s right of access to its land via the public highway, where a claimant’s land adjoins a public highway, can be a private nuisance: HS2, [86]-[87]. A repetition of the types of protests which have occurred at the relevant sites, which is the type of conduct which, broadly, the University fears would happen in the future without an injunction, would in my judgment constitute a private nuisance.

I have left Chestnut Tree Lawn for separate consideration. Here there is a question as to the University’s rights in respect of this land. The present registered freehold proprietor of this area of grassland is King’s College Cambridge. The evidence is that the University considers this to be a mistake; and Mr Griffin’s statutory declaration of 1 July 2025 confirms the University’s belief that it owns the land. Mr Griffin says, inter alia, that to the best of his knowledge, information and belief the University has been ‘for the past seventy-five years and upwards in the free and uninterrupted possession and enjoyment of or in receipt of the rent and profits of’ Chestnut Tree Lawn.

I cannot resolve any issue as to who owns the freehold title to Chestnut Tree Lawn, and do not seek to do so. What does seem to me to be clear, however, is that the University at least has either, vis-à-vis any protesters, a possessory title to Chestnut Tree Lawn, or has an easement to make use of it. If the first, that would found a cause of action in trespass or private nuisance; if it is only the second, then the University would still have an action in private nuisance in the event of a substantial and unreasonable interference, though not, as I understand the law, in trespass.

On the basis of the foregoing, the next question to be considered is whether the University is entitled to obtain a precautionary (or quia timet) injunction on the grounds that the threat of the torts which the conduct apprehended would constitute is imminent and real: see HS2, [99]. In this context, ‘imminent’ means that the circumstances must be such that the remedy sought is not premature: HS2, [100], citing Hooper v Rogers [1975] Ch 43, 49-50, where Russell LJ stated that ‘the degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between the parties, having regard to all the relevant circumstances.’

In my judgment, given the history of protests which I have outlined above, the repeated statements by Cambridge for Palestine to the effect that they will be back and will not stop, and the fact that there has been no disavowal by Cambridge for Palestine since the Order of Soole J of an intention to organise or facilitate future protests of like kind, I am satisfied that the risk of future torts is both real and imminent.

As to the latter, one of the points made in ELSC in its written submissions was that there was no real or imminent risk in relation to the Senate House or Senate House Yard at least before graduation ceremonies resume in the new academic term. I do not accept that. Those areas are both a prominent feature of the Cambridge townscape and symbolise the University. They present clear opportunities for conspicuous protest whether or not a graduation ceremony is to take place. The fact that Trinity, St John’s and Magdalene have obtained injunctions in respect of their land makes it more likely that, if there were no injunction in respect of the Senate House, Senate House Yard and Old Schools, they would be targeted: there has been a persistent pattern of re-siting protests depending on where injunctions are in place. It cannot be said that there is no risk of protests during the academic vacation. While the protests that there have been seem to have been student-led, it is not clear that all participants have been students, and still less that all students of the University who are involved in Cambridge for Palestine will not be present in Cambridge during the vacation. There have been protests which have continued during the vacation in the past, as evidenced by the encampment on the lawn of King’s College in the summer of 2024. The material put in by ELSC itself, and in particular paragraphs 13-21 of Ms Ost’s second Witness Statement, tends to suggest that the present phase of the Israel-Palestine situation is one which is particularly likely to occasion protests.

More generally, I do not consider that it can be said that the University’s application is premature. In judging this I have to aim at justice between the parties. Here, if the Defendant Persons Unknown would not, in the absence of an injunction, protest at any of the sites in question until a degree day was imminent, then they will not be adversely affected by an injunction; but on the other hand, if they might, then, assuming that the other requirements for an injunction are met (considered below) it would be unjust to the University not to grant an injunction now. Moreover, it appears to me that it is more convenient, and just to all persons involved or affected, that the issue of whether there should be a final injunction should be determined at a hearing such as that on 23 July 2025, which took place on proper notice, than, as appears to be the logic of paragraph 19 of ELSC’s submissions, at a hearing convened urgently shortly before a degree day.

Further, and in any event, the issue of whether the threat to Greenwich House is imminent clearly does not depend on when degree days are scheduled (and the contrary was not suggested by ELSC). It was in my view clearly appropriate that the position in relation to Greenwich House should have been resolved at the hearing on 23 July 2025; and also that it was convenient that the position in relation to the other sites should be resolved at the same time. This is an additional reason why I reject the suggestion that the University’s application is premature.

The next issue for consideration is whether there would be any defence available to the Defendants which would mean that an injunction should not be granted. Under this heading I intend to consider not only matters which are strictly defences at law to the causes of action relied on by the University, but also equitable considerations which would bar the grant of equitable relief.

As to this, other than in relation to Chestnut Tree Lawn, which I have already dealt with, there has been no suggestion of any private law defences which might be available to the Defendants to claims in trespass or private nuisance should the conduct proposed to be enjoined occur.

What has however been contended by ELSC, and which requires careful consideration, is that the grant of an injunction would involve an infringement of the Defendants’ ECHR Article 10 and/or 11 and/or 14 rights. Article 10 provides that everyone has the right to freedom of expression; Article 11 provides that everyone has a right to freedom of assembly and association with others; Article 14 provides that the enjoyment of Convention rights and freedoms shall be secured without discrimination on any ground such as (inter alia) race, religion and political or other opinion. Each of the Article 10 and 11 rights is qualified: conduct of a public authority which interferes with the right may be justified if it is ‘prescribed by law and [is] necessary in a democratic society in the interests of’ (amongst other things) protection of the rights of others.

For the purposes of its application, the University was content to proceed on the basis that it is a public authority. I will proceed on that basis. In any event, the court is a public authority and must act compatibly with Convention rights when deciding whether to make an order. I also accept that Article 10 and 11 rights are potentially engaged even in the context of a trespass. As was noted by the Court of Appeal (Criminal Division) in R v Hallam [2025] EWCA Crim 199; [2025] WLR 33, at [34], there had been no citation of any case in which the ECtHR had ‘decided that a protester who commits an act of trespass thereby automatically loses their rights under Article 10 or 11 altogether.’

There might be a debate as to whether, in considering whether it is entitled to an injunction, the University would be entitled to rely on its own rights under Article 1 of the first Protocol to the ECHR (‘A1P1’). Like Soole J (Soole Judgment, [86]), I consider that it is entitled to do so. This is consistent with HS2, [125]-[129]. In any event, and like Soole J (Soole Judgment, [86]), I am of the view that whether the University can rely on its A1P1 rights does not make any material difference, because, in any balancing exercise required for the purposes of assessing the lawfulness of any restriction on freedom of expression or assembly/association, it can rely on its common law rights not to be subjected to trespass and/or nuisance. Furthermore the court can take the University’s common law rights not to be subjected to torts into account when deciding whether to make an order.

I therefore turn to whether the order sought by the University would infringe the Defendants’ Convention rights. The first issue to be considered here is whether, as submitted by ELSC, it would do so and would not be ‘prescribed by law’ because it is not sufficiently clear or formulated with sufficient precision to enable persons concerned to foresee its legal consequences (see Karastelev v Russia (App. No. 16435/10, 6 October 2020) at [78]). ELSC submits that the injunction would not be sufficiently clear, and be ambiguous, in particular because of its incorporation of the proviso that actions are prohibited if they are done ‘for the purpose of protest’, and ‘without Consent’.

Like Soole J (Soole Judgment, [96]) I do not accept that the provisions of the order which I decided should be made are unclear or ambiguous. Like him, I consider that the definition of ‘Consent’, as ‘permission given by [the University] under the Code or other express permission given by [the University]’ to be sufficient. I also consider that the facts that the Soole J Order itself has been substantially effective and does not appear to have given rise in practice to any significant debate or doubt as to its ambit or application (and no evidence of such debate or doubt is given in the material submitted by ELSC) indicate that the criticisms of lack of clarity and ambiguity are overblown.

ELSC further contends that, even if the injunction can be said to be ‘prescribed by law’ as being sufficiently precise and clear, the injunction interferes unjustifiably with the effective exercise of the Defendants’ rights under Articles 10 and 11. This involves a consideration of the factors identified in DPP v Ziegler [2021] UKSC 23; [2022] AC 408, which are summarised in HS2, [136]. At this point of the argument, the salient questions are (d) and (e) of that summary, namely whether the interference is in pursuit of a legitimate aim as set out in paragraph (2) of Articles 10 and 11, and whether the interference is necessary in a democratic society to achieve that aim. As to the second of those questions, any restriction on Article 10 or 11 rights must be proportionate, which itself requires four conditions to be satisfied: (a) whether the aim is sufficiently important to justify interference with a fundamental right? (b) is there a rational connexion between the means chosen and the aim in view? (c) are there less restrictive alternative means available to achieve that aim? (d) is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others? (See HS2, [137]).

As to these, I am in no doubt that any interference is in pursuit of the legitimate aim of the University to secure its buildings and spaces and the activities carried out on them. Soole J reached the same conclusion in relation to the order which was sought from him: Soole Judgment, [87].

I am also satisfied that this aim is sufficiently important to justify an interference, and that there is a rational connexion between the means and the end. I am of the same view as was Soole J: Soole Judgment, [88], and I adopt what he said in that paragraph.

Like Soole J I have given consideration to whether there are less restrictive measures available to achieve the aim. One particular matter which requires consideration is whether existing police powers constitute less restrictive measures which would be similarly effective. In my judgment they are not. As a preliminary matter, I note that the University wishes, to the extent possible, to avoid the involvement of the police or the application of the criminal law. That appears to me to be entirely understandable, and I agree with Mr Lees KC that it is surprising that it should be contended on behalf of the persons unknown that there should be greater reliance on such application.

In any event, I have considered the nature of police powers under the Anti-social Behaviour Crime and Policing Act 2014, and in particular the dispersal powers thereunder, and under the Public Order Act 1986, and the nature of the offence under s. 68 Criminal Justice and Public Order Act 1994. I am satisfied that none of those constitutes a measure which would be nearly as effective and efficient at securing the University’s legitimate aims of protecting its ownership/possessory rights to the land, the activities being conducted thereon, and the people who work and/or are permitted to be there. In particular, all the powers to which attention has been drawn are essentially focused on dealing with disruptive events as and after they happen. Just as with the Colleges in the Twigger Judgment, [84], however, the fully justified concern of the University is to prevent protesters from returning to its land in the first place. The injunctions granted by Fordham J and Soole J have been effective, just as, it appears, the Trinity, St John’s and Madgalene injunctions have been. I therefore reach the same conclusion as Mr Twigger KC (Twigger Judgment, [84]), which is itself in line with the conclusion reached by Soole J (Soole Judgment, [89]), that ‘[i]t is unrealistic to suppose that any of the other suggested courses of action will be anything like as effective [as an injunction].’

Turning therefore to the question of whether, if the injunction is granted, a fair balance will have been struck between the rights of all parties, I am of the clear view that it will. In this regard, I regard the following as significant:

As to the suggestion that Article 14 is of relevance, it is to be noted that the injunction granted is not confined to persons of any particular sex, colour, language, religion, political or other opinion, national or social origin, association with a national minority, birth or other status. Specifically, it is neutral as to what the cause protested might be. More generally, I agree with what Soole J said at [93] of the Soole Judgment, namely:

‘As to Article 14, in circumstances where the campaigners and protesters are evidently not confined to those of Palestinian heritage, I am very doubtful if the proposed order has any discriminatory effect in that respect. I am also doubtful in respect of the arguments based on discrimination on the grounds of opinions and beliefs. But, in any event, even if there is a discriminatory effect on either or both bases, I am again quite satisfied that the proposed restraint leaves ample opportunity for the protesters to campaign and express their opinions and beliefs elsewhere in Cambridge and its city centre and that Article 14 provides no basis for refusal of the proposed relief.’

For those reasons I consider that I can comfortably and confidently reach the conclusion, on a summary judgment application, that a defence based on Convention rights has no real prospect of success.

I have considered whether there are other defences to, or equitable considerations which tell decisively against, the grant of an injunction. I do not consider that there are. Damages will not be an adequate remedy. The type of disruption which might occur in the absence of an injunction is not easily compensated by an award of money, and in any event it would be difficult to recover compensation from the Defendant Persons Unknown.

There does not appear to be any cogent argument that the University is not entitled to an injunction by reason of unclean hands, laches, delay or acquiescence.

For the purposes of completeness I should also refer to two other matters which might be argued to constitute defences or reasons why an injunction should not be granted, which were drawn to my attention by the University.

The first is that the petition for a Grace initiated by Professor Scott-Warren might have affected the University’s ability to bring the present proceedings. On the material before me, I am satisfied that this is not the case. In the first place, this is because, at the date of the hearing before me, the Grace had not passed the Regent House. Secondly, and in any event, a Grace does not of itself affect the University’s ability to conduct the proceedings because, by Chapter 1 of the University’s Ordinances:

‘The Council shall have authority to take legal advice, retain solicitors, and bring, defend, or conduct legal proceedings on behalf of the University as they may think fit necessary or desirable in the interests of the University.’

Thus, it is the Council that has the power to conduct legal proceedings on behalf of the University rather than the Regent House. The evidence in the Fourth Witness Statement of Emma Rampton, dated 16 March 2025 is that the Council has delegated its authority to conduct legal proceedings to the Registrary, and the Registrary has authorised the bringing and pursuit of these proceedings. The evidence is further that the views of the members of the Council have been sought to ensure alignment in relation to the continued conduct of the proceedings by the Registrary, and such alignment was confirmed at the Council meeting on 2 June 2025.

The second matter is that it might be argued that the recently published guidance from the Office for Students, ‘Regulatory advice 24: Guidance related to freedom of speech’, and in particular example 13 impacts the ability of the University to obtain the present injunction. In my judgment it does not do so. This is guidance for universities. It is for the court to decide what is the appropriate remedy in a particular case. In this case, taking into account the particular features of the sites in question, taking further into account that, as I have found, the grant of the injunction leaves protesters with ample opportunities of expressing their views in the centre of Cambridge as well as elsewhere, that the injunction is not an outright prohibition on protests but allows for protests with consent, and that the terms of the injunction are not directed at any particular viewpoint, I consider the Order to be justified.

Given that the injunction is being sought against Persons Unknown, and can extend to ‘newcomers’, it is in my view necessary for the court to give consideration to the principles in Wolverhampton, summarised in [167] thereof, and ensure, insofar as they are relevant to the present case, that they are met.

The first is that there must be a compelling need for the protection of civil rights. I am satisfied that there is. As I have set out above, the University would have a good cause of action in trespass and/or private nuisance if the conduct sought to be prohibited were to occur; there is a real and imminent risk that it will occur; there would be no defences available which stand any real prospect of success; and an injunction is the only realistic way in which the University can achieve its legitimate objectives.

Second, there must be procedural protection for the rights of affected newcomers. There are such protections in the Order, which clearly identifies the Persons Unknown by reference to the tortious conduct to be prohibited (which mirrors the torts pleaded in the Claim Form); provides for the giving of notice to Persons Unknown by the steps specified in paragraph 6 of the Order; and, in paragraph 3, provides for liberty to anyone served with or notified of the Order to apply to vary or discharge it at any time.

Third, there should have been full and frank disclosure by the University. As I have said, it was accepted by the University that it bore that obligation, and I have proceeded on the basis that it has been complied with.

Fourth, the injunction should be constrained by both territorial and temporal limitations so as to ensure, as far as practicable, that it neither outflanks nor outlasts the compelling circumstances relied upon. Here, there are clear and precisely defined, and restricted, geographical limits to the injunction, specified in the Order.

As to the temporal limitation, I accept that the duration of the injunction should only be such as is reasonably necessary to protect the University’s legal rights in the light of the evidence of past tortious activity and the future feared tortious activity. It appears to me that an injunction for a period of a year is necessary. In Wolverhampton, the Supreme Court said (at [225]) that injunctions against newcomers must be reviewed periodically and ought to expire by effluxion of time in all cases after no more than a year unless an application is made for their renewal. In the Twigger Judgment, an injunction was granted for a year. At [122] Mr Twigger KC said (emphasis in original): ‘… I consider that an injunction is necessary whilst there remains an imminent and real risk of further disruptive protests, and I have seen nothing which encourages me to think that this risk will recede in the course of the next year.’ That sentence is criticised by ELSC as involving an error of law on the basis, so it is said, that the judge ‘reversed the burden under the Convention’ and that it is for the University ‘to demonstrate that there is a risk throughout the period of the injunction, not for any Defendant … to explain why a given risk is only temporary.’ I do not accept that Mr Twigger KC’s judgment involves any such error of law. In my judgment what he was saying, and what in any event I consider to be the case here, is that there are good reasons for believing that the risk of further demonstrations will continue for the next year, and that there is no good reason for believing that the risk will end within the year. To put this another way, in my judgment, it is likely that the risk will subsist for the coming year. In making that assessment, I have had regard to the history of the Israel-Palestine situation, the length of the present phase of the conflict, the seriousness of the situation in Gaza at present and strength of feeling about it which is demonstrated, inter alia, by the material put in by ELSC itself, and the fact that, on the evidence of Mr Glover, there may not have been final decisions on any recommendations of the Working Group on the University’s investments until the later part of the academic year 2025/26. I further consider, like Mr Twigger KC, that it is necessary for the injunction to remain in place whilst such a real risk of further disruptive protests remains in being, subject to the limitation of a year to conform with the caution enjoined by Wolverhampton.

The fifth is that the injunction should, in all the circumstances, be just and convenient. For reasons already canvassed above, I am clearly of the view that the grant of the injunction is just and convenient.

I should also note that the Order is, in my view, expressed in clear, and not in technical terms; and it does not prohibit any conduct which would be lawful on its own.