England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London WC2A 2LL
		25th November 2010

MR JUSTICE HENDERSON:

1. I have before me an application brought by the School of Oriental and African Studies ("SOAS"), seeking possession on an urgent basis of part of its campus known as the Brunei Suite, which is on the ground floor of the Brunei Gallery which is one of the principal buildings comprising the London campus of the school. The matter first came before me yesterday morning on a without notice application for a possession order sought against persons unknown, including students of SOAS who have been in occupation of the Brunei Suite since about noon on Monday of this week, conducting a "sit-in" as part of their protest against the Coalition Government's spending plans in relation to higher education. I gave permission yesterday for short notice of the effective hearing under CPR Part 55 to be given with an immediate return time of 3.30 in the afternoon, and the notice indicated that the return would take place before myself in this court.
2. In due course I will come on to what I was told yesterday afternoon, but in order to set the background I will first refer to some of the evidence in the first witness statement of Mr Richard John Poulson in support of the application. He is the Director of Estates and Facilities of SOAS, which forms part of the University of London and is a leading world centre for the study of a diverse range of subjects concerned with Asia, Africa and the Middle East. It currently has more than 4,400 students, 40 of whom are on postgraduate or research programmes. The main campus of the school is in the vicinity of Russell Square in London. A plan shows that there are three main buildings which are separated either by a courtyard with trees or roads, but they are all within a short distance of each other, and one of those three main buildings is the Brunei Gallery, of which the Brunei Suite forms part.
3. The school itself is a private charitable body and holds the premises under a lease granted to it by London University. It is convenient at this point to refer to some of the provisions in the lease, which was granted on 12 May 1993 for a term of 98 years beginning on that date. The permitted user of the premises was any purpose within paragraphs (c) and (d) of Class D1 of the Town and Country Planning (Use Classes) Order 1987 as in force at the date of the lease. The relevant use class – I do not have the text in front of me at the moment – is, in short, use for educational purposes.
4. There are, as one would expect, a number of covenants on the part of SOAS, including the user covenant (which I have already mentioned), and a covenant against causing any form of nuisance in clause 4.17, including not to do anything which may be or become a nuisance or which may cause damage, annoyance, inconvenience or disturbance to the landlord, or which may be injurious to the value, tone, amenity or character of the demised premises. There are also covenants not to use any part of the demised premises for residential or sleeping purposes in clause 4.15, and a number of provisions relating to alienation in clause 4.20, including a covenant not to part with the possession or share the occupation of the whole or any part or parts of the demised premises, or to permit any person to occupy them, save by way of an assignment or underlease.
5. Since the SOAS campus is private land, it follows, as a matter of basic English property law, that the only persons who may enter upon the campus are people who have the licence or consent of SOAS. For normal purposes, of course, the students who are enrolled at SOAS have the permission of SOAS to be on the campus for the purposes of their education in the broadest sense of that term.
6. The particular protest with which this application is concerned began at about noon on Monday 22 November, when, according to the undisputed evidence of Mr Poulson, around 20 people took up occupation of the Brunei Suite, which Mr Poulson describes as a conference facility situated on the ground floor of the Brunei Gallery, and indicated their intention to remain in occupation as a protest against the Coalition Government's plans to increase undergraduate fees and make associated cuts to the education budget. The protestors had issued a list of demands and they have tried to negotiate with SOAS, but it is the stated policy of SOAS only to negotiate with the Student Union. Although negotiations have been in progress with the Student Union, SOAS has declined to negotiate with the particular students who are carrying on the occupation.
7. The protestors have sought support from a number of sources, including other students, members of staff, the wider University of London student body, and some political figures. However, the basic ground upon which the possession order is sought is the property rights of SOAS to have occupation of its own premises and to prevent unlawful trespass. SOAS says that the students who are conducting the sit-in are trespassers, because they have no right or licence to occupy the Brunei Suite to the exclusion of the school, and they most certainly have no right to sleep there or to control who has access to the premises.
8. In this context, I was referred to the regulations for students at SOAS, which are exhibited to Mr Poulson's witness statement and which provide in paragraph 9.1 under the heading "Student discipline":

"No student of the School shall engage in activity likely to interfere in the broadest sense with the proper functioning or activities of the School or those who work or study in the School or undertake action which otherwise damages the School."

It appears clear to me that conducting a sit-in on part of the school's premises is to engage in an activity which is likely to interfere in the broadest sense with the proper functioning and activities of the school, and with those who work or study there. That appears to me obvious as a matter of common sense, but is in any event borne out by the detailed evidence which Mr Poulson has adduced in his witness statement of yesterday and in a further witness statement which he has produced today.

9. To revert to his first statement, he sets out a number of concerns which SOAS has. He highlights the risk to health and safety as a result of the unauthorised occupation, and the encouragement given to others to join in the protest. He says there is a general risk to the building from the occupation, which may worsen if the protestors continue in occupation any longer. A particular concern was the large rally which took place yesterday and began at Malet Street, very close to the Brunei Gallery. That rally has, of course, now taken place, and it is only fair to record that it did not result in any incursion into the Brunei Gallery. Nevertheless, I think the school's concern on that score was understandable, although happily events have shown that it was, I will not say misplaced, but did not lead to anything untoward.
10. SOAS is also concerned that the current protest may escalate and may lead to confrontation, and that the premises which have been occupied are not designed to hold substantial public gatherings. Again I think it is fair to say that so far there has been no dangerous overcrowding, at least none of which I have been made aware, but the possibility does seem to me to be there, particularly given the avowed intention of the occupying students for the occupation to continue and grow in size and become a focus for possible future events. It is worth noting in this context that the next day of action against the Government's fee policy for higher education is scheduled for next Tuesday, 30 November.
11. The Brunei Suite is described by Mr Poulson as being a meeting and hospitality venue with a capacity limited to between 120 and 200 people, depending upon how it is configured.
12. That, in outline, was the evidence relied upon by SOAS yesterday. As I have already said, I adjourned the matter until 3.30 so that representatives of the student body, if they wished, could attend court and make representations. In the event, that is what happened and, as I said yesterday, I was genuinely grateful to them for coming along to put their side of the matter to me. I was addressed yesterday by a Mrs Hamilton, who is a non-practising barrister who had been asked to assist. She submitted that there were three possible grounds of defence to the possession application which needed to be considered. First, she thought there might be some provision in the lease which would allow wider use of the premises by the student body than what one would normally expect to find in a commercial lease of property. Having now seen the lease, there seems to me to be no substance in that particular point. Secondly, she said that there might be an infringement of the occupying students' rights under Articles 10 and 11 of the European Convention on Human Rights. That is a matter to which I will need to return later. Thirdly, she submitted, in outline, that the school's concerns about the possible repercussions of the sit- in or how it might develop were unfounded, and supported by evidence which should not be taken at face value. She submitted that the sit-in has so far been conducted in a well-organised and orderly way, without causing any real prejudice to anybody or to the proper conduct of the school's academic activities.
13. I was also addressed by a number of individual students, who reinforced some of the above points and also made a number of other points, including, in particular, expressing the wish that time should be allowed for them to obtain legal representation and give further consideration to any defences that might be available. I was also told a little more about the way in which the occupation has taken place. I was informed that on Monday a health and safety officer had toured the Brunei building without, apparently, finding anything to cause him concern. It was suggested that there was no real urgency in the school's concerns, and that the demonstration which took place yesterday had by then finished without any problems being caused to SOAS.
14. In those circumstances, I agreed to stand the matter over for 24 hours (or rather, slightly less than 24 hours) until 2 o'clock this afternoon, so that the student body could seek legal advice and, if so advised, put in evidence. The matter then came back before me at 2 o'clock today, when the students were represented by counsel, Mr Alexis Slatter, who appears with a junior on their behalf. Mr Slatter was only instructed this morning, and I bear in mind that he has had very little time in which to get to grips with the facts and the law in this matter. For her part, Miss Holland produced a further note dealing with the human rights aspects of the case, together with a second witness statement of Mr Poulson, which deals with some of the matters ventilated in court before me yesterday and reiterates the concerns that SOAS has about the continuing occupation. I then rose for half an hour, so that I could read Mr Poulson's second statement and a key case on Articles 10 and 11 (the Appleby case, described below).
15. I will begin with Mr Poulson's second statement, where he describes the ongoing concerns of SOAS which have in no way been allayed by developments over the last few days. In relation to the health and safety visit which took place on Monday, he says that the inspection in question was swift and only considered a few major concerns such as immediate fire risks, but since then the occupiers have reconfigured furniture and fittings, and also taken a number of further items onto the property. That apart, he points out that other staff dealing with matters such as maintenance, security and cleaning have not had access to the area, and he is therefore uncertain whether any damage has been caused, whether advertently or not. Essential services such as electrical distribution boards and isolation valves for water and heating services for the whole building are within the occupied area, and currently the school has no access to them. In addition, it is unclear whether any one individual is in charge of the occupation and whether the protestors would collectively be able to uphold appropriate standards of behaviour or conduct, although I again emphasise that there is no evidence of any failure on that score to date.
16. Mr Poulson refers to the repeated calls made for people to join the occupation and to give support. In his earlier statement, he said a musical event by a Cuban big band had been advertised which in the event did not take place, but other meetings and debates have taken place and yesterday evening a particular band did play in the Brunei Suite, apparently to a packed crowd. Certainly the music could be heard in the adjacent entrance foyer, and at the same time evening classes, both at the language centre and for Birkbeck College, were being held elsewhere in the building. Mr Poulson says (and I would accept) that there was, therefore, a potential for other events of that type to cause significant disruption to the school's normal activities.
17. Mr Poulson explains that SOAS has deliberately adopted a low-key security presence, intended to manage access to the area. Nevertheless, the security guards have been ignored in a number of important ways. On both Tuesday and Wednesday nights, certain individuals attempted to enter by climbing in through the windows after the building had been secured; and there was a further incident of people climbing in through the windows after security staff sought to prevent entry to the suite following service of the interim injunction which I granted yesterday. He says (and again I would agree) that a number of additional concerns arise from the use of windows for gaining access to and egress from the suite. Furthermore, significant extra calls have been made on staff time and resources, and this will become much more serious if the occupation continues into the weekend. His evidence is that, given the normal limitations on staffing levels over the weekend, he would need to arrange for extra security to be on hand at an estimated cost of £2,500. That apart, he says that there has been genuine disruption to the business of the school. This partly consists of the diversion of substantial resources. Senior staff and security staff have had to devote a lot of their time since Monday to working around the occupation, and their normal day-to-day activities have been correspondingly curtailed. In addition, a number of events of an academic nature have been disrupted by the occupation, because the Brunei Suite is principally used in association with the lecture theatre in the basement below. There were several important events and conferences scheduled to take place in and around the Brunei Suite over the course of this week, which have been relocated where possible, but some events have had to be cancelled. For example, a significant conference scheduled for tomorrow, Friday, has now had to be cancelled. In those circumstances, cancellation fees apply, and there is also a significant loss of reputation to SOAS associated with the cancellations and the inability to honour commitments. Mr Poulson says that if it becomes necessary to cancel bookings scheduled for the weekend, the costs to SOAS could be in the region of £11,000. That, it seems to me, is a very significant financial detriment to SOAS which weighs heavily in the balance when I have to evaluate whether to grant an immediate possession order or allow further time to the defendants.
18. Mr Poulson then refers to the lease, and says that, to the best of his knowledge, there is nothing connected with the donation made by the Sultan of Brunei which has any impact on the contractual position under the lease or the way in which the Brunei Suite can be used. In particular, there is nothing which provides any form of authority for an occupation or sit-in. Mr Poulson then describes the school's policy on how to respond to occupations. I have already referred to one aspect of that policy, which is that negotiations should be with elected representatives of the SOAS student community, namely the Student Union. He refers to and quotes from a statement which was yesterday issued by the school's registrar and secretary expressing regret about the occupation, reaffirming the commitment of SOAS to open discussion with the Student Union, and also emphasising that the school's policy on occupations had been unanimously approved in October 2009 by the SOAS governing body, which included representatives of the Student Union.
19. That is the evidential position before me. Turning to how the matter should now proceed, Miss Holland has submitted very strongly that I should make an immediate possession order today because no arguable defence has been disclosed, even though counsel has now been instructed on behalf of the students and there has been enough time for at least the bones of an arguable case to emerge. It seems to me that, if there were any arguable defence at this point, it would probably be right to allow a little further time for it to be investigated and for evidence and legal argument to be prepared. However, it also seems to me that the only plausible legal argument which has been mentioned is the human rights argument, to which I now turn.
20. The rights relied upon are those protected by Articles 10 and 11 of the Convention. Article 10 provides that everybody has the right to freedom of expression, including freedom to hold opinion and to receive and impart information and ideas without interference by public authority and regardless of frontiers. However, Article 10(2) goes on to say that the exercise of those freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of a number of specific objectives, including the protection of the reputation or rights of others. Article 11(1) then provides that everyone has the right to freedom of peaceful assembly and to freedom of association with others, but again by Article 11(2) that is qualified, because it says that no restrictions shall be placed on the exercise of those rights other than such as are presented by law and are necessary in a democratic society, again in the interests of a number of specified purposes or objectives.
21. The question whether these Articles confer a right to protest on private property has been considered by the European Court of Human Rights in the case of Appleby v The United Kingdom which was decided in May 2003 and is reported at 37 EHRR 38. The applicants had established an environmental group called the Washington First Forum to campaign against a plan to build on the only public playing field near the town centre of Washington in Tyne & Wear. They set about collecting signatures for a petition to persuade the council to reject the project, and tried to set up stands in a privately owned shopping mall in Washington known as The Galleries. They were then prevented from doing so by security guards employed by the landlord. Although the manager of one of the shops did allow the applicants to set up stands in his store, that permission was subsequently revoked, and the manager of The Galleries informed the applicants that permission had been refused because the private owner took a strictly neutral stance on all political and religious issues.
22. The applicants sought to rely on Articles 10 and 11, and complained that they had been prevented from meeting in their own town centre to share information and ideas about the proposed building plans. They also had a complaint under Article 13, but for present purposes I can ignore that. The court held, by a majority of six votes to one, that there had been no violation of either Article 10 or Article 13. In paragraphs 39 and 40 the court set out the relevant general principles. It began by recalling the key importance of freedom of expression as one of the preconditions for a functioning democracy, and went on to say that genuine effective exercise of such freedom does not depend merely on the State's duty not to interfere, but may require positive measures of protection even in the sphere of relations between individuals. The Court then said that, in determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interests of the community and the interests of the individual.
23. Turning to the application of those general principles to the case before it, the court set out the facts, which I have summarised, and recorded that the nature of the Convention right at stake was an important consideration. However, it was also important to have regard to the property rights of the owner of the shopping centre under Article 1 of Protocol 1 to the Convention. The court considered arguments that the shopping centre in question had many of the characteristics of a traditional town centre and could, therefore, be regarded as a quasi-public space. The court also referred to inconclusive authority in the United States, which had, however, refrained from holding, at any rate at the level of the Supreme Court, that there is any federal constitutional right of free speech in a privately owned shopping mall.
24. The court then expressed its conclusions in a paragraph which I will quote because it goes to the heart of the present case:

"47. That provision [Article 10], notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right. While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (Government offices and ministries, for instance). Where however the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of Convention rights by regulating property rights. The corporate town, where the entire municipality was controlled by a private body, might be an example."

This paragraph appears to me to provide clear authority that Article 10 does not give any general freedom to exercise the relevant rights upon private land. The only exception which the court envisaged was where the prohibition on access might prevent any effective exercise at all of freedom of expression, or where it might be said that the underlying essence of the right had in some way been destroyed.

25. On the facts of the present case, it seems to me entirely fanciful to argue that preventing the students of SOAS from exercising their Article 10 rights in the Brunei Suite would in any way impinge upon the effective exercise of their right of freedom of expression. There are many other places and ways in which that right can be exercised, and as the events of the last few days have shown there are indeed many ways in which it has been exercised. The proposition that Article 10 requires the law to override the property rights of SOAS in its own buildings is, in my view, unarguable and offers no prospects of success at trial.
26. Similar considerations apply to Article 11 which the court went on to deal with in paragraphs 51 and 52 of its judgment, because the court found that "largely identical considerations arise under this provision". So, for the same reasons, it would be equally fanciful to suppose that the Article 11 right to freedom of peaceful assembly required the court to override the property rights of SOAS in its own premises.
27. The case of Appleby appears to me to be plainly and squarely against the proposition which was advanced to me yesterday by Mrs Hamilton, and was further advanced to me today by Mr Slatter, to the effect that there may be an arguable defence based upon Articles 10 and 11. Mr Slatter had a further point, which was to say that SOAS is, at least arguably, a public authority, but I am not persuaded that that makes any relevant difference for present purposes. It is not in issue that, if there were a valid human rights argument, it could be relied upon by way of defence to the possession proceedings. So for that purpose it matters not whether or not SOAS is to be regarded as a public authority. Where its standing as a public authority would be relevant is if there were to be an application for judicial review, and indeed Mr Slatter began his submissions this afternoon by suggesting that this was a course which his clients wished to investigate. The suggestion was that it might be possible to show that the decision to seek the possession order was one that no reasonable public body could have taken. I will assume for present purposes, without deciding, that SOAS might be regarded as a public body for that purpose. The problem is that the argument appears to me wholly devoid of any prospects of success, because in view of the clear law laid down in Appleby it is simply impossible to conclude that no reasonable public body could have sought to regain possession of the Brunei Suite. Indeed, it seems to me almost self- evident that it was an eminently reasonable decision for the SOAS authorities to take, given the concerns expressed in the witness statements of Mr Poulson both yesterday and today.
28. In those circumstances, I am not persuaded that there is any defence to the possession proceedings which offers any realistic prospect of success, and I therefore think it would be wrong to allow any further adjournment for the defendants to look around for other possible grounds of defence. I cannot myself think of any grounds upon which they might be able to rely, given the incontrovertible property law principles which are relied upon by the claimant. The simple truth of the matter is that SOAS is the leasehold owner of the property and has the right to immediate possession of it. The students are entitled to use it in accordance with their contracts with SOAS and for the purposes of their education, but those rights do not extend to conducting a sit- in which excludes SOAS from the premises.
29. It seems to me, therefore, that SOAS is entitled to an immediate possession order and that such an order should be granted. The only remaining issue is whether the order should extend to the whole of the campus, or merely to the Brunei Suite. On that point I was referred yesterday by Miss Holland to the recent decision of the Supreme Court in Secretary of State for Environment Food and Rural Affairs v Meier & Others [2009] UKSC 11, [2009] 1 WLR 2780. The relevant principles are discussed in the judgments of Lord Rodger, Baroness Hale and Lord Neuberger, and in particular they all referred to the earlier decision of the Court of Appeal in University of Essex v Djemal [1980] 1 WLR 1301. That was an earlier case of a student sit-in, where students who had previously taken over and been removed from certain offices at the University of Essex then occupied another part of the university buildings. The Court of Appeal made an order for possession extending to the whole property of the university, in effect the whole of the campus. In paragraph 10 of his judgment Lord Rodger said:

"This was justified because the university's right to possession of its campus was indivisible."

In other words, an incursion into one part entitled the university to an order for possession in relation to the whole.

30. Baroness Hale, in paragraphs 22 and 23 of her judgment, referred to the Court of Appeal's decision and to the reasoning of Shaw LJ that the right of the university to possession of the site and buildings was indivisible. She said nothing to question the correctness of that analysis, and again, as a matter of common sense, I think it must be right that, provided one can regard the campus as a single piece of property for these purposes, it is appropriate for the possession order to be granted in relation to the whole rather than any part, if only to avoid the risk of the sit-in moving from one location to another. The situation that needs to be clearly distinguished is where the claimant owns other quite separate property which cannot reasonably be regarded as forming part of the same premises as those which have been occupied. In that situation, it is not possible to grant a pre-emptive possession order in relation to property of which possession has not yet been lost.
31. Lord Neuberger also dealt with this point in paragraphs 69 and following, referring to the decision in Djemal as a thoroughly practical one to deal with what he described as a fairly widespread problem at the time, namely student sit-ins. He did, indeed, go on to say in paragraph 71 that this was not the occasion formally to consider the correctness of Djemal, because it had not been put in issue by either of the parties. It is right for me to note that qualification, but nevertheless it remains Court of Appeal authority which is binding on me and, in my judgment, has not in any sense been overruled by the Meier case. Indeed, the indications are that Djemal had the clear approval of most, if not all, of the court in Meier.
32. In those circumstances, I think it is right, as I have said, to grant an immediate possession order and to grant it in relation to the whole of the SOAS campus.
__________________