Tesla Motors Ltd & Anor v British Broadcasting Corporation (BBC)

In a malicious falsehood claim, the claimant must identify and prove damage caused by the false words on which the action is founded. It must distinguish that damage from loss caused by adverse statements in the same publication which are true, and from damage outside the limitation period or jurisdiction. A pleading that does not make those distinctions may lack a real prospect of success and fail the requirement of a real and substantial tort. The court will not permit defamation proceedings to be used merely to obtain a declaration that a broadcast was inaccurate. A proposed meaning in a libel claim must be capable of bearing the alleged defamatory meaning. Product performance statements must be assessed in their proper driving context.

The claim arose from a Top Gear broadcast comparing the claimants’ Tesla Roadster with a Lotus Elise. The claimants alleged that words and images falsely conveyed that the Roadster had run out of charge, had been pushed into a hangar, had suffered brake failure and had become immobile through overheating.

The libel claim had previously been struck out on meaning. The malicious falsehood claim had also been struck out for lack of particularity, subject to an application to amend. The claimants sought permission to plead further claims under section 3 of the Defamation Act 1952, claims for actual or special damage, and a new Chase Level 2 meaning in libel. The central issues were causation, pleading sufficiency, limitation, the scope of recoverable damage, and whether the proposed libel meaning was capable of being defamatory.

1. Permission to amend refused. The proposed amendments were too vague and did not identify the damage allegedly caused by the statements said to be false, as distinct from damage caused by adverse statements which the claimants admitted to be true. They also failed to distinguish damage arising from broadcasts within the limitation period and jurisdiction.
2. Under section 3 of the Defamation Act 1952, the relevant damage must be caused by the words on which the action is founded. The plural-meaning approach in Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd [2010] EWCA Civ 609; [2011] 1 QB 497 requires the court to assess the damaging effect of the words by reference to the viewers who understood the false meaning, while excluding other causes of damage.
3. The same causation difficulty applied to the proposed claims for actual or special damage. The claimants could not show a real prospect of establishing that losses were caused by the alleged falsehoods rather than by true adverse statements about range and reliability. The proposed claim concerning the Model S was also too remote because the programme concerned only the Roadster.
4. The court declined to decide the standard of proof issue as necessary to the result. It nevertheless stated, obiter, that section 3 did not support a standard lower than the ordinary civil standard of proof, and that the reasoning of Gray J and Lewison J remained persuasive and good law.
5. The proposed libel meaning was incapable of being conveyed by the words complained of. A reasonable viewer would understand statements about vehicle range in the context of the driving conditions, not as an allegation that the manufacturers had intentionally or recklessly misled purchasers or given a false trade description. The proposed meaning was therefore not defamatory, or did not amount to a real and substantial tort.
6. The court also emphasised the importance of proper pleading, an explanation for a late amendment, party autonomy in selecting meaning, and the public interest in preventing serial interlocutory applications. The claimants’ application for permission to amend the Particulars of Claim was dismissed.