Kingsley v Office of the Immigration Services Commissioner

Permission to appeal should be refused where the proposed appeal has no real prospect of success and no other compelling reason justifies an appeal. The court may determine whether an allegedly defamatory description is substantially true by examining the evidence relied on to establish the claimant’s status or credentials. A claimant cannot avoid that issue by asserting that the conferring institution alone decides whether the status is genuine. The court may assess the evidential material and the ordinary meaning conveyed to the public. Strong evidence supporting justification, together with a substantial prospect that qualified privilege would succeed, may reinforce the conclusion that the claim is hopeless.

The appellant, who had provided immigration advice, sued the Office of the Immigration Services Commissioner in libel over publications describing him as a bogus professor and alleging that he was not a professor. The High Court, on an application for summary judgment, struck out the claim and entered judgment for the respondent. The order was initially provisional so that the appellant could provide further evidence about his alleged professorship, and was later confirmed after written and oral submissions. Permission to appeal was refused on paper, and the appellant renewed the application before the Court of Appeal. The central issue was whether the evidence disclosed an arguable case that the publications were false.

1. Application dismissed. The renewed application for permission to appeal was refused because the proposed appeal had no real prospect of success and there was no other compelling reason for it to proceed.
2. The evidence submitted to show that the publications were false did not do so. The material concerning the alleged thesis and professorship was unconvincing, incomplete and inadequate. The judge was entitled to assess it and conclude that there was no realistic prospect of establishing that the appellant was a bona fide professor in the ordinary sense of the term.
3. The appellant’s contention that the university, rather than the court, had to determine the validity of the professorship was rejected. By suing on the allegation that the description was false, he placed the genuineness and ordinary meaning of the status in issue. The court was therefore entitled to examine the academic material and the impression conveyed to the ordinary hearer.
4. The wider evidence, including inquiries made by the respondent, the institution’s failure to explain what was required to obtain the qualification, and the appellant’s background involving dishonesty and false representations, made the case hopeless. The absence of adverse comment on the qualification during the criminal trial did not amount to acceptance of its validity.
5. The court also observed that, given the respondent’s statutory responsibilities, the qualified privilege defence had a strong prospect of succeeding, although it did not need finally to determine that defence.

• Court of Appeal (Civil Division): [2015] EWCA Civ 602. The renewed application for permission to appeal was dismissed.
• High Court of Justice, Queen’s Bench Division: His Honour Judge Moloney QC provisionally struck out the libel claim and entered judgment for the respondent on 23 May 2013. The order was confirmed on 28 August and 1 November 2013 after further evidence and oral submissions.
• Permission stage: Sir David Keene refused permission on 2 July 2014, concluding that there was no realistic prospect of a successful appeal.