26 April 2019


In this issue of zoom-in brief, Geoffrey Rush wins defamation claim in Australia; the High Court grants an injunction against Bloomberg over criminal investigation claims; and the Court of Appeal upholds judgment in Can’t Pay? We’ll Take it Away! privacy case.


Editorial credit: Kathy Hutchins / Shutterstock.com Geoffrey Rush
Editorial credit: Kathy Hutchins / Shutterstock.com Geoffrey Rush

Oscar winning actor Geoffrey Rush has succeeded in his defamation action over newspaper claims of inappropriate behaviour towards actress Erin Norvill during a stage production of King Lear in 2015.

The judge found that Sydney’s Daily Telegraph and the journalist who wrote the articles had not shown that the allegations were substantially true. In Australia, as in England & Wales,  the burden of proof is on defendants, if they seek to rely on truth as a defence, in defamation cases. Erin Norvill had given evidence of the alleged inappropriate behaviour, but the judge found she was a witness ‘prone to exaggeration and embellishment’ and that her evidence was contradicted by that of both Mr Rush and other cast members. The judge called the articles: ‘a recklessly irresponsible piece of sensationalist journalism of the very worst kind.’

Mr Rush has been awarded $850,000 (£464,420) in damages, but expects to receive a further sum in special damages relating to financial loss he has suffered as a result of the articles which will be determined at a later date. The defendants will also have to pay Mr Rush’s costs.

Mr Rush is well-known for films including The King’s Speech, Shakespeare in Love, Pirates of the Caribbean and Shine, for which he won a best actor Oscar in 1996. Outside court Mr Rush reportedly thanked his family for their support during the case and said: ‘There are no winners in this case. It’s been extremely distressing for everyone involved.’


The High Court has granted an injunction preventing Bloomberg from reporting allegations that a businessman has been the subject of an investigation by a UK law enforcement body.

The article recounted leaked allegations of corruption/fraud taken from a letter of request for mutual legal assistance sent by the law enforcement body to a foreign government. The letter made clear it contained highly confidential information and that the claimant had not been charged with any offences.

In 2017 the court refused an interim injunction. One of the reasons was that, as the judge understood it, the article had prompted no adverse reaction from the law enforcement body which expressed no concerns about the article damaging the investigation. That was not in fact the case. The law enforcement body had expressed concerns, including that publication may pose a risk to the investigation, and had sought further information about what the article would say prior to publication, which Bloomberg had not provided. Further, Bloomberg failed to make clear to the court that the journalist had not only seen a copy of the letter, but had retained a copy of it, which was not disclosed until much later.

The judge found the claimant had a reasonable expectation of privacy in the investigation. Whilst the subject matter of the article was clearly of public interest, that did not justify the disclosure of the claimant’s private information contained in the letter.

The claimant was awarded £25,000 damages.

The case builds on previous case law, in particular Sir Cliff Richard v BBC. It is now the case that in general individuals do have a reasonable expectation of privacy in the fact of a law enforcement investigation into their behaviour prior to any charges being brought. The case also shows the care that must be taken with confidential documents. Whilst Bloomberg had given both the claimant and the law enforcement body a right of reply, aimed at dealing with any potential defamation claim which might arise, it had not considered the confidentiality and privacy issues involved in publishing this leaked information.


The Court of Appeal judgment in the Can’t Pay? We’ll Take it Away! case, leaves the position unchanged. As we previously reported Mr Ali and his wife Mrs Aslam brought the case over an episode of the programme in which they were shown being evicted from their home, which was viewed 9.65 million times. The broadcast was found to be a misuse of their private information, and they were each awarded £10,000 damages. The judge said he would have made a higher award had it not been for short videos of the eviction posted by the Claimants’ landlord on social media which were seen by at most a few hundred people.

The Claimants appealed the size of the damages awards, saying they were clearly too low, failing to bear a reasonable relationship to the scale and nature of publication, and to the distress caused. Another ground of appeal was that the judge was wrong to take into account the social media videos, a third that the judge failed to consider the distress caused to the Claimants by the impact on their children, who had been bullied as a result of the programme.

Channel 5 cross-appealed on liability, saying that the judge failed to give proper weight to its editorial discretion, which it said extended to the decision to include the Claimants’ private information in the programme, which had been found to be on a topic of public interest.

The Court of Appeal dismissed both appeals. On liability the Court accepted that the public interest in the programme went beyond the High Court enforcement process, also encompassing debt, benefits which are insufficient to cover rent and the consequences to families. However, the Court was satisfied that the judge had in mind all the relevant principles, such that the appeal court should not interfere.

On damages, whilst the Court of Appeal accepted that another judge might have given a higher award, as the judge had not made any fundamental error, the damages award should be left unchanged.


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