Kingsley v Office of the Immigration Services Commissioner [2015] EWCA Civ 602

Case No A2/2013/3377[2015] EWCA Civ 602
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE MOLONEY QC)
Venue Royal Courts of JusticeDate Thursday, 26 March 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE BEATSON
Between
KINGSLEYAppellantv
Between
THE OFFICE OF THE IMMIGRATION SERVICES COMMISSIONERRespondent
DAR Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Appellant appeared in person for in person for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE BEATSON:

[1]On 21 June 2012, the Claimant, Mr Max Kingsley, filed proceedings against the Office of the Immigration Services Commissioner. The claim was in libel.[2]The Claimant had worked as a provider of legal services including immigration law: see paragraph 2 of the particulars of claim. The Defendant is the regulatory body established by statute, the Immigration and Asylum Act 1999, to regulate the provision of immigration advice and services.[3]The libel concerned publications by the Defendant on its website and disseminated to others in the winter of 2008 alleging that the Claimant was not a professor and describing him as a "bogus professor". The claim is that Mr Kingsley has suffered loss and damage and his reputation has been lowered in the estimation of the public because he is a professor of immigration law, a status granted by Trinity University of New York, and the description "bogus" is false.[4]The application is for permission to appeal the judgment of His Honour Judge Moloney QC made provisionally on 23 May 2013 and confirmed on 28 August and 1 November 2013. The reasons for those confirmations will become evident. The judge struck out Mr Kingsley's claim.[5]Mr Kingsley applied for permission to appeal. In an order dated 2 July 2014, Sir David Keene refused permission stating there was no realistic prospect of a successful appeal, and that the judge was right to conclude that the claim was hopeless. This application by Mr Kingsley in person is the renewal of that.[6]The immediate background consists of the articles in print and on the Defendant Respondent's website, but to understand that one has to go further back.[7]Mr Kingsley obtained a document which is exhibited at various points in the bundle with a coat of arms at the top headed Trinity College and University New York and stating that it "has conferred upon Max Kingsley the rank of academic status professor of law in immigration law signed and sealed upon this day, 8 February 1999” and signed by A Wilkinson, who is said to be the Dean of Studies.[8]Mr Kingsley subsequently practised as an immigration adviser offering services. When the 1999 Act came into force, he applied for registration with the Immigration Services Commissioner. His application was rejected in April 2001.[9]The Commissioner's office stated he was not a fit and proper person. He did not have an appropriate qualification and he had a history of dishonest conduct, including holding himself out as a solicitor. That referred to a conviction in April 1987 for an offence under section 21 of the Solicitors Act 1974 by the Wells Street Magistrates' Court.[10]The Commissioner also referred to an adjudication by the Solicitors Disciplinary Tribunal in 1996 about applications to banks by Mr Kingsley for mortgages stating that he was a solicitor, and making a false statement about his income. That Tribunal barred any solicitors firm from employing him.[11]Mr Kingsley was naturally disappointed with the rejection of his application and he appealed to the Immigration Services Tribunal. He was represented by Mr Kishore of counsel. The Immigration Services Tribunal, Mr David Hunter QC, Ms O Conway and Dr Alan Montgomery, rejected his appeal on 4 April 2002.[12]The Tribunal stated that it had taken four matters into account in coming to its decision. The first three were the findings by the Solicitors Disciplinary Tribunal and adverts placed Mr Kingsley with Thomson directories and a judgment against him in the Barnet County Court. The Tribunal also stated that it took into account what the appeal decision described as "the purported professorship of Mr Kingsley". On this, the Tribunal stated:
"So far as Mr Kingsley's professorship is concerned, the Tribunal finds that the evidence in this regard persuades it that this qualification is indeed a paper qualification of no merit or substance. The Tribunal does recognise that the ability fitly and competently to provide immigration advice or immigration services may validly be obtained by considerable experience even in the absence of strictly formal qualifications in the field of immigration law. However, in the context of the fitness and competence of Mr Kingsley, the Tribunal found it of significance that the evidence of Mr Kingsley about the allegedly substantive nature of his examinations, theses and qualifications was wholly incredible."
[13]The next material matter was that in 2008, Mr Kingsley was prosecuted for nine counts of providing immigration advice and services at Southwark Crown Court. He pleaded not guilty. Following a trial presided over by His Honour Judge Price and a jury, he was found guilty and imprisoned for a period of nine months.[14]In his sentencing remarks the judge treated Mr Kingsley as a person of good character despite the 1987 conviction. He stated he did so because of the circumstances of the offence. But he also stated that he rejected the suggestion that Mr Kingsley's offences were the result of naivete and stupidity. He stated:
"I know this was a deliberate and planned piece of criminality which was done for large profits. All your victims were poor. All had either permission to stay refused or been advised by solicitors that they did not have a case. That did not deter you. You saw them. You gave them false hopes and took substantial monies off them in cash."
The amounts in cash are stated to be in the order of £23,500.[15]It was after that conviction that the Defendant published its newsletter with the headline "bogus professor jailed for providing illegal advice". It was those publications which led to this case.[16]Proceedings were issued in the County Court, but were transferred to the High Court in October 2012. Directions were given by Master Kay in November 2012. Particulars of claim were served only in January 2013 and the defence was served on 15 February 2013.[17]The Defendant made an application for summary judgment in May 2013. That application first came before His Honour Judge Moloney on 22 or 23 May when the judge made a provisional order granting the application, striking out the claim and giving judgment for the Defendant. He, however, stated that due to late service of the Defendant's second witness statement, the Claimant was to have leave to file and serve a witness statement in reply confined to the question of his professorship and exhibiting any documents relied on. The judge stated that on receipt of that, the court would consider without a hearing whether to make the strike out order final or give further directions.[18]After the evidence was furnished on 28 August 2013, the judge confirmed the provisional order. However, as he had made that order on the basis of written evidence alone, he allowed Mr Kingsley an opportunity to make oral submissions about it.[19]In his order, the judge stated at paragraphs 3 and 4 that he had considered the statements of claim; the references from Mr Painter, a former solicitor, and Mr Kishore, a member of the bar; Mr Kingsley's membership card for the New York County Lawyers' Association 2008; and a document headed Max Kingsley thesis Trinity College and University New York.[20]He stated at paragraph 4 that he considered the last item with special care since:
"I understand Mr Kingsley to contend that this is the thesis on which the Trinity University awarded him the title of professor and that it demonstrates that his professorship is not bogus as the Defendant alleges or at least that there is a triable issue on whether or not it is bogus such that I should not strike out the claim as I was provisionally minded to do."
[21]The judge then in paragraph 5 comments that of the 24 pages submitted, which Mr Kingsley today said was an extract of a total thesis of some 400 pages, sent in response to the judge's request that he send him 10 pages, 14 pages are simply extracts from statutes and other legislative material. He stated that the remaining 10 page section:
"Comprise a 6 page section on refugees, asylum and exceptional leave and a 4 page section on intercountry adoptions from the immigration law perspective. Neither section is paginated, paragraphed, referenced or footnote. The document appears to be incomplete."
[22]He also stated that:
"So far as it goes, the document is intelligently written and appears to give a clear descriptive account of its various topics. I could well imagine it forming part of an acceptable undergraduate or perhaps even masters dissertation, but if one accepts as I do the Defendant's definition of a professor as a person holding a senior academic position at a university or other higher education establishment, I find it inconceivable that authorship of such a document as this could ever be sufficient to qualify a person to hold such a post, leaving aside the fact that Mr Kingsley does not claim actually to have taught as a professor at Trinity or any other university."
For those reasons, he considered that Mr Kingsley's claim was plainly hopeless.[23]I add by way of observation that during the course of the hearing Mr Kingsley stated that he had taught at Trinity College and University New York and that he had started teaching there in 1984 or 1985.[24]At any rate, having been afforded the opportunity to make oral submissions, the Claimant did so at a hearing on Friday, 1 November. The judge gave a short but complete judgment at the conclusion of that hearing.[25]The judgment refers to Mr Kingsley's contention that the Office of Immigration Services Commissioner's evidence that his qualification was bogus had to do with the fact that it came from a university of a similar name in Malaga which was a diploma shop. The judge stated Mr Kingsley maintained that, even though that institution, in response to an inquiry by the Office of the Immigration Services Commissioner, had claimed Mr Kingsley as an alumnus, he had had nothing to do with it and his work was in New York for the New York institution.[26]The judge stated at paragraph 4 that he accepted that the document or thesis was one that Mr Kingsley presented to the university in New York for that university to consider whether to award him a title of professor.[27]He then set out part of his earlier ruling. He recorded Mr Kingsley's insistence that the qualification came from New York and not Malaga, an insistence repeated today. The judge stated that, for the purposes of the hearing before him, he accepted the case on the basis on which Mr Kingsley put it forward. But in a crucial passage he then stated:
"Wherever his qualification or certificate comes from (for present purse purposes I accept it was from New York and not from Malaga), the issue remains is it bogus? Can he fairly be described as a bogus professor or is there any room for arguing that this document and the certificate from New York might ever be accepted as rendering him a bona fide professor in the sense in which that term is ordinarily understood and not a bogus professor? I have considered the document again and I remain firmly of the view that I expressed on the original occasion of my first oral judgment and the view that I expressed in my written ruling on 28 August 2013, to which I have referred, that it would be thoroughly misleading for Mr Kingsley to claim in any professional context that he is a professor. To do so would plainly and beyond argument give a completely false impression to the ordinary hearer of the nature and extent of his academic qualifications."
[28]The judge then recorded Mr Kingsley's submission that it is for the university not the court to judge the validity of his entitlement to be a professor. He stated:
"I am afraid he is wrong about that. He has chosen to sue on the allegation that his professorship is bogus and therefore the issue of whether his professorship is genuine and bona fide or whether on the other hand it would be bogus and misleading for him to call himself a professor is for this court. In those circumstances, it must as examine the academic position as best it can."
[29]After reminding himself that he was only considering whether it was arguable that Mr Kingsley's claim might succeed or whether it was bound to fail, he concluded that the latter was the position. The evidence on which Mr Kingsley rests his claim to a professorship, said the judge, "is so manifestly inadequate and unsatisfactory that there is no possibility that he would succeed in trial in persuading a court of anything different."[30]Essentially, Mr Kingsley reiterated the arguments he had put to the judge in November 2013. He emphasised the fact that there was no connection between the Malaga and New York institutions. This was contrary to the evidence of Saiqa Amin, the legal manager and in-house barrister for the Office of Immigration Services Commissioner, who made three statements respectively on 8 January, and 16 and 21 May 2013. The last of these statements was the one which Mr Kingsley states was served on him on the day of or just before the hearing and was the reason that Judge Moloney made his orders provisional.[31]Mr Kingsley also explained the circumstances which led to his conviction by the Wells Street Magistrates' Court. I am prepared to accept for present purposes that the offence under the Solicitors Act was a technical offence rather than real impersonation of a solicitor by a person, although I note that 1987 was some years after Mr Kingsley states that he was teaching at the Trinity College and University of New York.[32]Mr Kingsley also showed me material which he claimed showed that the police inquiries by the Essex Police, Scotland Yard and the Metropolitan Police, following his conviction, in relation to the authenticity of the professorship did not lead to further action. His bail by the Metropolitan Police was cancelled on 21 May 2009 and that in Essex on 4 June 2010.[33]He relied on his criminal trial at Southwark in which he claimed the judge and jury accepted his professorship. Since the jury was tasked with finding him guilty or not guilty of the charges, it is, however, inconceivable that they would have adjudicated on the validity of his professorship. There is no reference to the professorship in the judge's sentencing remarks, but their tone does not suggest that the judge thought this was a genuine professor. At any rate, the highest Mr Kingsley can put it is that the judge did not say anything bad about the certificate either in his summing-up or in his sentencing remarks. I accept that and proceed on that basis.[34]What Mr Kingsley is asserting underneath the submissions is that the judge failed properly to consider the evidence that he had provided to establish his credentials. He maintains that the thesis is proof that the credentials are genuine because if the professorship was purchased, there would be no requirement to submit a thesis. He also maintains that the judge was not competent to assess a foreign academic qualification.[35]I have concluded that this application has no real prospect of success and there is no other compelling reason to allow it to proceed to an appeal.[36]First, the Applicant's evidence submitted to demonstrate that the allegations published about him by the Office of the Immigration Services Commissioner are false does no such thing. The evidence to establish that the published allegations are true contained in the exhibits to the evidence of Saiqa Amin, including her inquiries of the institution in Malaga, is extensive and compelling.[37]My second reason concerns Mr Kingsley’s submission that the 24 pages are part of a 400 page thesis. He argued that he was only asked to produce 10 pages, and what he produced included 10 pages taken out of the middle. He had therefore done more, he said, than the judge asked. He did not have the thesis with him. I have concluded that the material that he furnished the judge to enable the judge to assess the thesis is very unconvincing and the judge was entirely justified in treating it as he did.[38]Thirdly, as far as the Office of the Immigration Services Commissioner's evidence is concerned, the background of the trial at Southwark concerned his qualifications but the judge did say that Mr Kingsley was neither qualified nor able to assist those who he advised.[39]The fact that Trinity College declined to answer Ms Amin's question in an e-mail sent to them in February 2013 asking what Mr Kingsley would have had to do in order to obtain the qualification professor of immigration law is also telling.[40]Taken together with this Applicant's background, which involves dishonesty and a willingness to falsely represent himself, there is in my judgment no chance whatsoever of an appeal succeeding.[41]I pass over the fact that the defence that was served in February 2013, apart from justification and absolute and qualified privilege, relied on the lapse of time because there had been no publication in the 12 months prior to 27 June 2012 when the claim form was filed. But I observe that, particularly given the statutory responsibilities of the Office of the Immigration Services Commissioner, whatever the merits of the limitation defence, in my judgment the qualified privilege defence had a strong prospect of succeeding.[42]None of the evidence which the Applicant put before the judge, who gave him every opportunity, did anything to show that this was a viable case. For these reasons, this application is dismissed.[43]I conclude by making a final observation about the quality of the thesis. I do not consider that the extracts from this thesis which I have read would in fact survive interrogation by plagiarism software. They largely consist of cut and pasted extracts from statutes and other regulatory material, often presented as commentary. Unlike the judge, I do not consider that this would have satisfied even at an undergraduate level.[44]It is a shame that this action has been pursued in this way. Qualifications based on life experience can be valuable alternatives to more formal qualifications. The reasons given by Trinity College for having the qualifications, however, include prestige and hanging a certificate on the wall. The manner in which Trinity College has dealt with requests for what one has to do to obtain the qualifications and the reasons that it gives as to why people may wish to have these qualifications suggests that they were not concerned with substantive recognition of experiences, but with something that is less reputable.