Protests – more lessons from the court
With the rise of protest action across the world, education institutions need to be ever alert to the possibility of the complex (and often competing) issues which arise if a protest is being held on or near campus. Institutions have duties to their students and staff but will also need to balance the protesters’ rights to protest peacefully.
That said, institutions must also be critically aware of the court’s rigorous procedural requirements if they choose to seek injunctions against the protesters. Any errors can have a significant impact on reputation and become very expensive.
The recent high profile case which involved protesters outside a primary school in Birmingham in May 2019 has reinforced the importance of following the precise and exacting procedural requirements to obtain interim injunctions in relation to protests. In that case, the City Council sought interim injunctions creating an exclusion zone preventing protestors from continuing their protest in person and through their use of social media.
Crucially, however, given the escalation of protests outside the school, the Council sought urgent interim injunctions without notice to the protestors (or “ex parte”), albeit that a further hearing with notice to the defendants was listed approximately one week later. In the first instance, the judge accepted all the arguments of urgency and granted the injunctions on the terms requested by the Council. However, at the hearing the following week, a different judge hearing the matter discharged the injunctions and awarded costs against the Council.
The judge made it clear that the discharge of the injunctions was solely a result of the way in which the Council had presented its original evidence to the court about why the injunctions were needed and how it supported its application to have the hearing heard on an ex-parte basis, i.e. to hold the hearing to determine whether or not to grant the interim injunction secretly without any notice to the named defendants and protestors at all. This was not an application to shorten the usual time for service but the substantive application itself. In those circumstances, the Civil Procedure Rules, case law and guidance from the Master of the Rolls has put a heavy emphasis on the duty on the applicant to give full and frank disclosure, not just of material facts but also to bring to the court’s attention any legal argument that the defendants would wish to make had they been given the opportunity to do so.
Here, at the hearing the week after the injunctions were granted, the judge identified serious omissions on the part of the Council and considered that he had no alternative but to discharge the injunctions for their failures without notice, and award the defendants their costs. Going further, however, the judge did agree to put in place further injunctions in similar (though not identical) terms as before, emphasising the point that the substance of the earlier applications was not necessarily flawed but the procedural irregularities had undermined the Council’s efforts. In other words, the court discharged the first injunctions because the Council had failed to give full and frank disclosure i.e. had failed to give the court all the material facts and legal arguments. This is a matter of the utmost importance particularly in applications for injunctions without notice, as the defendant is not there to represent themselves at that crucial first hearing.
The salutary lesson from this case is that there will be very few cases where an application for an interim injunction without notice would be appropriate (as opposed to on short notice). If you do find yourself in that territory, the burden of complying with the procedural requirements is a heavy one but the process must be followed to the letter!
¹ Birmingham City Council v Afsar  EWHC 1560 (QB)