Universities and precautionary injunctions against protestors: navigating rising challenges

For universities, the challenge is more than just a practical one. Institutions must uphold freedom of speech and facilitate lawful protest, while also ensuring that campuses remain safe, accessible and operational.

While much of this activity is peaceful and takes place within university protocols, some incidents are not, and cross into being unauthorised and unlawful, aimed at maximum disruption.

Universities must balance property rights with freedom of expression and assembly, ensuring space for lawful activities whilst positioning itself to best prevent unlawful use of its space.

One potential remedy is a precautionary injunction. These types of injunctions can guard against future tortious acts, including trespass.

Precautionary and Newcomer Injunctions

A precautionary injunction, also known as a quia timet injunction, is a type of court order designed to prevent threatened harm or wrongdoing before it occurs. The courts have quite recently evolved a similar form of injunctive remedy, known as a Newcomer Injunction.

Injunctions of this nature are sought when there is a credible threat that an applicant's rights may be infringed in the future, the impact of that infringement would be severe when other remedies available are inadequate.

Unlike other injunctions that address ongoing or past breaches, these injunctions focus on protecting against anticipated harm and can operate against the world at large. A university applicant must demonstrate a real and imminent risk of an incident happening in the future whilst proportionately safeguarding the balance of a university's rights against those of others.

We regularly advise our university clients on these remedies, and how best to prepare internal policies and procedures to ensure that, should such injunctions be required, they are best placed to proceed. Common themes include:

Balance of justice - The right to protest

The court will balance an applicant's need to protect its estate against the rights of individuals to protest, assemble and practice free speech.

For universities, this is often where internal policies and procedures become important.

The court will expect a university applicant to show it has clear and well-communicated policies on freedom of speech, along with processes to ensure a fair application and consenting process is administered, allowing for authorised events to take place.

Whilst universities are required by law to maintain such policies, it is important to ensure that they are applied holistically and dovetail with estate management practices. Collating and evidencing a track record of considering and allowing applications for lawful campus, that satisfy university policies, is recommended.

This integrated approach is essential when demonstrating to the court that an injunction is aimed at preventing unlawful conduct, rather than restricting legitimate expression.

Fear that an incident will occur

An applicant must demonstrate it holds a tangible fear that a real and imminent risk that an incident will occur in the future.

For universities, this will often involve demonstrating a pattern of incidents on campus, such as unauthorised encampments, building occupation or targeted disruption.

Evidence is key. Records of previous protests, internal reports, security logs and any indication that further action is being organised will all assist.

If universities that can show a continuing risk - rather than a one-off event - it will be in a stronger position.

Impact of incident

An applicant would also need to show that the consequences of any future incident would be serious. The court will expect an applicant to explain clearly how its operations, or event schedule, would be affected by an anticipated event.

This might include disruption to lectures, open days or exams, restricted access to libraries or laboratories; impact on student welfare or interference with essential services.

It is therefore important to demonstrate that the usual remedies (often a possession order to remove trespassers after the event) would be ineffective or could be circumvented relatively easily (by protestors vacating, only to return later).

The Order

As these orders are preventative in nature, they must be drawn very carefully. A court will require an order to precisely define the timeframe, nature of prohibited (and acceptable) conduct and spatial extent of the injunction. It is essential to avoid over-reach or confusion and to ensure that an order will not prevent lawful conduct or inadvertent breaches by members of the public who may be indirectly affected.

Conclusion

The increase in protest activity linked to global events presents a continuing and evolving challenge for universities. While supporting lawful speech remains a core responsibility for universities, there are circumstances where action is needed to prevent serious, unauthorised disruption.

Precautionary and/or Newcomer injunctions can form part of that response, however they are not straightforward to obtain. Checking now to ensure your policies (particularly free speech and assembly, events and estates management policies and campus regulations) are drafted and applied in a way that supports an application for an injunction is a prudent investment.

For tailored advice on managing these complex issues, please contact Joe Hedges or Daniel Hall in our Property Litigation team.