(1) Tesla Motors (Ltd) (2) Tesla Motors Inc v British Broadcasting Corporation  EWHC 310 (QB)
Case date: 23/02/2012
Court: High Court
Area/s of law: Libel, Malicious falsehood
Barrister/s: Andrew Caldecott QC, Catrin Evans
The Claimants manufacture and sell an electric car called the ‘Roadster’. The claims in libel and malicious falsehood issued by them on 29th March 2011 were in relation to an episode of Top Gear featuring the Roadster, originally broadcast on 14th December 2008 (“the Episode”). Given the applicable one year limitation period, both claims were limited to repeats of the Episode which were shown on the BBC (television and online) and on the freeview channel ‘Dave’.
The Episode was initially positive of the Roaster, which was shown as being faster than the petrol powered Lotus Elise and described by Jeremy Clarkson as “biblically quick”. However, Clarkson went on to criticise the car. The Claimants set out the words complained of in the form of a transcript:
“This car really was shaping up to be something wonderful but then… [artificially dying motor sounds and musing slowing down and stopping] …although Tesla say it will do 200 miles we have worked out that on our track it will run out after just 55 miles and if it does run out is not a quick job to charge it up again. [Footage of people pushing the Roadster into the hangar followed by Jeremy Clarkson inserting the charger into the Roadster.]… …perhaps then the best idea is to have two Teslas, so you can use one whilst the other is charging. Unfortunately that is quite an expensive solution and it doesn’t appear that you get much reliability either. I don’t believe this… the motor has overheated and I have reduced power (shot of Tesla sitting on the track). While it cooled down we went to get the silver car out again (shot of back of silver Roadster in the garage with its bonnet up) only to find that while it was being charged its brakes had broken (shot of empty track) so then with the light fading we had no cars at all.”
The libel claim was struck out on the basis that the words complained of were incapable of bearing the pleaded Chase Level 1 meaning that the Claimants had intentionally or recklessly misled potential purchasers of the Roadster, (nor any of the other three alternative defamatory meanings advanced in the course of argument). As to the malicious falsehood claim, five alleged falsehoods were pleaded: (1) The first Roadster shown did not run out of charge; (2) The first Roadster did not have to be pushed back into the hangar as a result of running out of charge; (3) At no point were the brakes of the first Roadster broken; (4) The second Roadster did not become immobile as a result of over heating; and (5) There was no time at which neither Roadster was available for driving.
No actual damage was pleaded by the Claimants, who instead relied upon s. 3(1) of the Defamation Act 1952 (“the 1952 Act”): “(1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage – (a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form”. The BBC successfully applied for the malicious falsehood claim to also be struck out on the basis that the allegation of probable damage was so lacking in particularity that it could not be allowed to proceed. The BBC’s further argument that the reputational interests at stake were not proportionate to the time and costs it would take to resolve (and that the claim was abusive under the Jameel doctrine) was held over. A previous case note on that decision ( EWHC 2760 (QB)) can be found here
Following those rulings, the Claimants sought permission to amend. With regard to malicious falsehood, the proposed amendment was to give particulars of the claim under s. 3 of the 1952 Act. They also, however, sought to introduce a previously unannounced claim for special damages in the sum of US$3.8m and shortly before the hearing, applied to reinstate the claim in libel on the basis of a revised Chase Level 2 meaning.
The application to amend was dismissed.
Tugendhat J’s reasoning was as follows:
It was not necessary to determine the question of what standard of proof was required by the word ‘calculated’ under s. 3 of the 1952 Act. However, the Claimants’ submission that s. 3 was to be read as introducing a standard of proof lower than the ‘balance of probabilities’ standard did not seem to be supportable. It had been submitted on behalf of the Defendant that ‘calculated’ meant “likely in the sense of more probable than not
”. This was in line with Ferguson v Associated Newspapers Ltd
(unreported) and IBM v Websphere Limited
( EWHC 529 (Ch)), authorities which were “at the very least persuasive
” and “still good law” (para 48).
There were a number of difficulties with regard to causation:
One problem arose from the fact that the claim could not be brought in respect of the time-barred broadcasts of the Episode. The BBC submitted that this meant that even if the Claimants had an arguable case on the fact of lost sales, it was wholly impossible to know from the matters pleaded in the Particulars of Claim whether any alleged lost sales were caused by time-barred viewings or not.
There was also an issue as to whether when assessing any damage which the Claimants were alleging was more likely than not to have been caused, the court had to take into account the programme as a whole and therefore the benefit to the Claimants arising from the Roadster having been praised by Clarkson.
Another causation related difficulty was that for every statement which the Claimants alleged to be untrue and unfavourable, there were statements which were unfavourable in respect of the same matter but admitted to be true. The amended Particulars of Claim did not distinguish between true and allegedly untrue unfavourable statements. In any event, there was no real prospect of the Claimants proving that the five alleged falsehoods were calculated to cause damage that went beyond the damage caused by the unfavourable but true statements (para 83). The case of Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd
 EWCA Civ 609 had increased the need for attention to causation in malicious falsehood cases.
None of the prospective purchasers whose remarks were pleaded in the Particulars of Claim stated when or in which country they had viewed the broadcast or (save in one instance), which part or parts of the broadcast gave rise to the concerns expressed.
Ultimately, the draft amendment “was so vague and so gravely deficient in identifying the extent of the damage (if any)”
that was either likely to have been caused or (as now pleaded) was caused by the unfavourable and false statements, that it was impossible to state that there was a real prospect of success or that the claim was brought in respect of a real and substantial tort (para 82).
The Claimants’ claim in substance was for a declaration of falsity. However: “Rectification of inaccuracies is not the function of the courts unless that can be achieved in the course of proceedings properly brought to enforce a recognised cause of action… Complaints about accuracy cannot all be advanced so as to amount to causes of action for defamation or malicious falsehood. If they cannot be pleaded adequately to give rise to one or other of those causes of action, it is not open to the court to relax the criteria to enable the Claimant to proceed in any event” (para 85).
The words complained of were not capable of bearing the revised Chase Level 2 meaning (“there were reasonable grounds to suspect that each of the Claimants had intentionally and significantly misrepresented the range of the Roadster by claiming that it had a range of about 200 miles in that its true range on the Top Gear track was only 55 miles
”) (para 105).
In the course of argument, the Claimants disavowed the ostensible allegation that this revised meaning imputed dishonesty (a meaning which Tugendhat J had struck out previously). It was argued that the word ‘intentionally’ was intended to convey that the Claimants “had intentionally made a representation which was in fact incorrect, not that they had intentionally misrepresented the facts
”. The former was said to convey the offence of giving a false trade description. Tugendhat J dismissed this argument:
All reasonable motorists knew that a manufacturer’s statement about the range of a car is always qualified by a statement about the driving conditions under which that range can be expected. The reference point used is rarely the conditions of a test track (para 106).
Further, by itself, it was not defamatory to say that there were reasonable grounds to suspect that the Claimants had misled prospective customers. The meaning advanced did not include a reference to the Claimants’ state of mind, whether it be intentional, reckless or negligent. No reasonable viewer would understand the Episode to mean that the Claimants had given a false trade description. Ultimately, the new meaning was not capable of being defamatory at all, or, if it was, it was not capable of being sufficiently serious to constitute a real and substantial tort (para 107).
There was a public interest in discouraging a party from making serial applications advancing a series of different meanings, any of which could have been put forward in the original Particulars of Claim. In any event, the revised meaning was simply an attempt to convert a damaging but true statement about a product into an untrue and defamatory statement about its producer (para 116).
Andrew Caldecott QC and Catrin Evans, instructed by the BBC Litigation Department, appeared for the Defendant.