Hickey v Marks

Reference: 06/07/2000

Court: Court of Appeal

Judge: Morritt & May LJJ, Forbes J

Date of judgment: 6 Jul 2000


Defamation – libel - justification - fair comment – test for permission to appeal against trial findings of judge

Instructing Solicitors: Le Brasseur


The claimant was a GP who had been struck off by the GMC in 1990 amongst other things for prescribing excessive quantities of Diconal to a patient who had died from an overdose. The defendant was a retired GP who had served on the GMC and been Chairman of the BMA. At the request of the BBC the defendant commented on the claimant’s case in a BBC television programme about medical malpractice called “Doctors in the Dock” broadcast in December 1995. The claimant commenced an action for libel against the defendant contending that the programme suggested that he had a dangerous, ignorant and irresponsible attitude to prescribing Diconal and other drugs. The defendant relied on defences of justification and fair comment. At the trial by judge alone, Gray J found defences of justification and fair comment proved. He gave permission to appeal on the basis that the consequences for the Claimant were severe.


Whether the judge should have given permission to appeal; whether he was wrong to come to the conclusions that he reached.


The judge should not have given permission to appeal. The fact that a decision had serious implications for a party was not a good reason for granting permission to appeal; permission should only be given if the judge considers that the appeal has a real prospect of success.


Since the CPR came into effect the Court of Appeal has encouraged judges not to give permission to appeal in most cases and to leave the decision as to whether permission should be given to the Court of Appeal itself.